author: MASSIAH-JACKSON, J,

text:
    Tupitza v. Martin

      Michael J. Reed and James S. Tupitza, for plaintiffs.

      Arthur W Lefco, Aaron E. Moore, Jeffrey B. McCarron and Kathleen M. Carson, for defendants.
    July 1, 2010
   MASSIAH-JACKSON, J,

This matter now comes before the Honorable Superior Court for the third time. See In re Estate of Young, 2787 EDA 2006 (Pa. Super. 2007) (Young I); In re Estate of Young, 1761 EDA 2008 (Pa. Super. 2009) (Young II).

When Mrs. Helen Young died in June 2003, her daughter, Deborah Young Hamilton retained the Martin attorneys (appellees). Mrs. Hamilton sought counsel in order to scrutinize her mother’s inter vivos transactions in Orphans’ Court and to file a civil action for money damages in her individual capacity.

In 2006, shortly after the Orphans’ Court issued a comprehensive opinion disposing of all matters, Mrs. Hamilton determined that she no longer was able to proceed with civil proceedings.

In May 2008, James S. Tupitza, Esquire and Harriet Young Tupitza (Mrs. Hamilton’s sister and brother-in-law) filed this Dragonetti action against the Martin attorneys.

On April 29, 2010, this court granted the Martin attorneys’ motion for summary judgment. See court exhibit “A”, attached hereto. Notice of appeal was filed on May 26, 2010.

In accordance with Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, this court respectfully submits to the Honorable Superior Court, the memorandum in support of order granting summary judgment in favor of all defendants, dated April 29, 2010, attached hereto as court exhibit “B”, as the reasons for the rulings and order.

COURT EXHIBIT “A”

MAS SIAH-JACKS ON, J, April 29, 2010

ORDER

And now, April 29, 2010, after consideration of defendants’ motion for summary judgment, and plaintiffs’ response thereto, and after supplemental memoranda have been filed by all parties, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that the motion for summary judgment filed by Thomas E. Martin Jr., Esquire, Aaron Diego Martin, Esquire and Martin Law Offices LLP, is granted.

COURT EXHIBIT “B”

MASSIAH-JACKSON, J, April 29, 2010—

I. Factual Background and Procedural History

This motion for summary judgment has been filed by Thomas E. Martin Jr., Esquire, Aaron Diego Martin, Esquire, and Martin Law Offices LLP (Martin attorneys), in this civil action brought against them by the sister and brother-in-law of their client, Mrs. Deborah Young Hamilton. James Tupitza, Esquire and Harriett Young Tupitza, plaintiffs herein filed an action alleging wrongful use of civil proceedings (Dragonetti Act), 42 Pa.C.S. §8351 et seq. and abuse of process, as a result of civil actions filed in the Chester County Court of Common Pleas in 2004, no. 04-04997 and no. 04-04998.

When reviewing the record in the light most favorable to the non-moving party, we note that in 1998, the Young family’s farm consisted of 190 acres in Chester County. Mrs. Helen Young had three daughters. Her 1998 final will bequeathed $1,000 to daughter Hannah, with the remainder of the estate to be divided equally between daughters Harriett and Deborah.

Mrs. Young was diagnosed with ALS, a terminal illness, in the spring of 2002. Mrs. Young delivered inter vivos gifts of real estate in 2002. James Tupitza, Esquire, husband of daughter Harriett, prepared the documents to subdivide the land, and, to create a deed which conveyed 154 acres of land and the main farm house to his wife and to himself. He also established a power of attorney naming Harriett Tupitza, as agent of her mother. James Tupitza, Esquire prepared a deed to convey approximately 2.2 acres of land and the tenant house to Deborah.

In March 2003, daughter Harriett Young Tupitza and James Tupitza, Esquire, reconveyed the 154 acres to themselves and recorded the deed. Joint title was required as part of construction loan financing to rehab the main farm house.

On June 16, 2003, Mrs. Helen Young died without assets in her estate. Deborah Hamilton retained the Martin attorneys. As a result of the inter vivos conveyances in 2002, she was denied one-half share of her mother’s estate.

Deborah Hamilton retained the Martin attorneys to file objections to the first account in probate, challenging inter alia, the large land conveyance in 2002, to Deborah’s sister Harriett and Harriett’s husband, James Tupitza, Esquire. Deborah also filed a petition to remove Harriett as executrix of their mother’s estate, citing the conflicts of interest on Harriett’s fiduciary responsibilities.

Deborah also retained the Martin attorneys to file civil actions, in her individual capacity seeking monetary damages.

Summary judgment may be entered only if the pleadings, depositions, answers to interrogatories and admissions, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Rule 1035 of the Pennsylvania Rules of Civil Procedure, The principal issue in this case is whether the Martin attorneys had probable cause to bring the civil action for monetary damages or whether they acted for an improper purpose.

This court was assigned the summary judgment motion on March 25, 2010. All counsel have fully cooperated. They participated in a telephone conference, filed supplemental memoranda and submitted other documents. For the reasons which follow, the Martin attorneys’ motion for summary judgment is granted.

II. Legal Discussion

A. As the Representatives of Their Client, the Martin Attorneys Properly Performed Their Functions As Advisors, Advocates, Negotiators and Evaluators of the Legal Rights and Obligations of Deborah Hamilton

The liability of an attorney in a Dragonetti Act claim is grounded in the Restatement (Second) of Torts, §674, comment d, which has been repeatedly cited by our Honorable Superior Court, e.g., Gentzler v. Atlee, 443 Pa. Super. 128, 660 A.2d 1378 (1995); Z.H. Meiksin v. Howard Hanna Company Inc., 404 Pa. Super. 417, 590 A.2d 1303 (1991); Shaffer v. Stewart, 326 Pa. Super. 135, 473 A.2d 1017 (1984). In Meiksin, supra, the Superior Court noted, 404 Pa. Super at 420-21, 590 A.2d at 1305:

“Regarding the liability of an attorney for the wrongful use of civil process, the Superior Court has followed the Restatement (Second) of Torts §674 comment d (1977), where the law is stated as follows:

“ ‘An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see section 675); and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See section 676.) An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
“If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.’” (citations omitted)

The cause of action for abuse of process requires an act or threat not authorized or with an objective which is not legitimate. In Cruz v. Princeton Insurance Company, 925 A.2d 853 (Pa. Super. 2007), the appellate court noted at 856:

“ ‘Abuse of process’ is defined as ‘the use of legal process against another primarily to accomplish a purpose for which it is not designed.’ Shiner [v. Moriarty], 706 A.2d [1228] 1236 [(Pa. Super. 1998)] (quoting Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 627 A.2d 190, 192 (1993)).
“To establish a claim for abuse of process it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff.
“Id. Abuse of process is, in essence, the use of legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process. McGee v. Feege, 517 Pa. 247, 259, 535 A.2d 1020, 1026 (1987). Thus, the gravamen of this tort is the perversion of legal process to benefit someone in achieving a purpose which is not an authorized goal of the procedure in question. Rosen, 621 A.2d at 192. Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002).”

It appears that John Tupitza, Esquire and Harriett Young Tupitza base their abuse of process claim on a notion that the Martin attorneys seek to harass or punish. Even assuming arguendo that were accurate, abuse of process would not be found. It is not enough that a defendant has bad or malicious intentions or that the defendant acted from spite or even with an ulterior motive. Rosen v. Tesora Petroleum Corporation, 399 Pa. Super. 226, 237, 582 A.2d 27, 32-33 (1990), allocatur denied, 527 Pa. 636, 592 A.2d 1303 (1991). Where, as here, the Martin attorneys, acting on behalf of their client, did no more than carry out the authorized process to its authorized conclusion, then this court concludes there is no evidentiary support for the contention that the lawyers acted to pervert the process. Counsel cannot be found liable simply because the trial courts and/or Superior Court did not accept their claims. See also, Al Hamilton Contracting Co. v. Cowden, 434 Pa. Super. 491, 644 A.2d 188 (1994) and numerous cases cited at 498-99, 644 A.2d at 191-92.

B. All Claims Relating to Civil Action No. 04-04998 Are Barred by the Statute of Limitations

On November 18, 2005, when Honorable Ronald C. Nagle, sustained preliminary objections to Deborah Hamilton’s action in equity, these attorney-defendants did not appeal that decision nor take any further action. The case was terminated.

This litigation commenced three years later in May, 2008. Plaintiffs-Tupitza are barred from making claims based on Dragonetti or abuse of process by the two-year statute of limitations.

C. Every Court That Has Viewed These Facts Has Recognized Probable Cause for Civil Damages or Equitable Relief

In November 18, 2005, when Honorable Ronald C. Nagle considered the Tupitzas’ preliminaiy objections to Mrs. Hamilton’s civil action at law, no. 04-04997, he commented at n. 1:

“The burden of discovery the legal theory underlying a plaintiff’s complaint is on the court.... It appears that plaintiff has pled a cause of action.... However, plaintiff should have brought either an action to quiet title or for declaratory judgment requesting equitable relief....” (citations omitted)

When faced with the same facts in Chester County Orphans’ Court, Honorable Katherine B.L. Platt noted at page 12 of her opinion:

“I do not disagree with Deborah’s contention that aspects of James Tupitza’s involvement are malodorous, nor that the result of her mother’s lifetime giving was wholly unfair to Deborah relative to Harriet.”

Judge Platt stated that the “assistance” of James Tupitza might be actionable by Mrs. Young’s estate after an investigation by a successor executor. The judge listed certain areas where inquiry might be appropriate at pages 15-16:

“It must be made clear here that I am not determining that James Tupitza has or has not committed actionable ethical violations or breached his duty of care to Mrs. Young. Unfortunately, I improvidently precluded Deborah’s counsel from introducing evidence on those issues, particularly the ethical concerns. As a result, the record before me is inadequate to draw any dispositive conclusions in those areas of concern, but just some of the issues which give me pause include:

“(a) James Tupitza knew Mrs. Young had a will prepared by Louis Teti, a long-time professional acquaintance. Yet he considered that he had a lawyer-client relationship with Mrs. Young and gave her estate planning advice.
“Did he undertake to explain to Mrs. Young that the conveyances of her real estate to her children would nullify her testamentary intentions?
“If he did not know of the testamentary scheme, why did he not make himself aware prior to undertaking a wholesale divesting of assets for Mrs. Young in the guise of estate planning?
“(b) The deed of Harriet for lot no. 1 prepared by James Tupitza necessarily benefited James Tupitza, not just indirectly, but directly.
“(c) The deed prepared by James Tupitza conveying lot no. 3 by Mrs. Young to Deborah and Edward Hamilton contains a right of first refusal to Harriet. There is no reciprocal provision in the deed to Harriet, also prepared by James Tupitza.
“(d) The mortgage from Deborah and Edward Hamilton to Mrs. Young drafted by James Tupitza, was recorded immediately by James Tupitza to ‘choke the equity’ in the transfer to Deborah.
“(e) The mortgage from Harriet to Mrs. Young in the principal amount of $1,000,000 was never recorded.
“(f) The notes, allegedly prepared for ‘tax purposes’ contain no interest rate and recite their automatic satisfaction on Mrs. Young’s death. These attributes provide no discernible tax benefits that have been explained to me. In fact, it has been argued that exactly the opposite result was obtained.
“(g) The inter vivos transfers were taxable for both the Pennsylvania Inheritance and Federal Estate taxes as a result of being made within a year of Mrs. Young’s death. By the terms of Mrs. Young’s will, all taxes were to be borne by the residuary estate in which Deborah and Harriet are equal beneficiaries. As the gift to Harriet of lot no. 1 represents the overwhelming portion of the taxable estate, the tax burden is disproportionately borne by Deborah.
“I am sufficiently concerned about the propriety of James Tupitza’s conduct and possible breach of his duty to the late Mrs. Young, that I must allow her estate to investigate further. That role must be undertaken by Mrs. Young’s personal representative, and Harriet Tupitza cannot do so as she is not only married to James Tupitza, but she and James Tupitza benefited from all transactions.”

When the Honorable Superior Court heard In re Estate of Young, no. 2787 EDA 2006 (Pa. Super. 2007) (Young I), President Judge Emeritus Stephen McEwen authored a concurring statement to again highlight the challenge to the substituted executor of Mrs. Young’s estate:

“the ruling of the trial court [Judge Platt]... will not preclude a substitute personal representative of the estate (1) from conducting a further investigation and analysis of the methods used to effect the subdivision and transfers of Mrs. Young’s real property, or (2) from, if appropriate, presenting a claim by the estate to the title to that property.” (emphasis in original)

Recently, on March 4, 2009, in Young II, a different panel of the Honorable Superior Court reiterated President Judge Emeritus McEwen’s concurring statement, and added at page 10:

“We further conclude that the trial court’s decision does not prohibit appellant [Mrs. Hamilton], in her individual capacity, from filing a civil action against James Tupitza.”

In In re Estate of Young, no. 1761 EDA 2008 (Pa. Super. 2009) (Young II), that court repeated at page 13:

“Consistent with the rationale in Strunk Estate [453 Pa. 19, 307 A.2d 839, (1973)], we agree with President Judge Emeritus McEwen’s concurrence in Young I and conclude that a substituted representative is not precluded from commencing an action on behalf of Young’s estate, claiming title to and ownership of the farm or otherwise seeking monetary consideration.”

Each of these distinguished courts, trial and appellate, concluded in dicta that the circumstances of the 2002 conveyance from Mrs. Helen Young to James Tupitza, Esquire and Harriett Young Tupitza, provides probable cause to file a claim or initiate other legal action by the estate and/or Mrs. Hamilton in her individual capacity.

This court also concludes that the Martin attorneys had probable cause, pursuant to 42 Pa.C.S. §8352, to initiate and to continue the civil proceedings, Harnett Tupitza, as executrix, had a fiduciary duty to not create a conflict of interest through self-dealing or benefit or profit. James Tupitza, Esquire, acting as Mrs. Young’s attorney, directly and indirectly, benefited from the land transfer while his mother-in-law was alive in 2002, and also from the estate after she passed away. See also, In re Paxon Trust, 893 A.2d 99, 120 (Pa. Super. 2006), citing Banes Estate, 452 Pa. 388, 305 A.2d 723 (1973); Noonan Estate, 361 Pa. 26, 63 A.2d 80 (1949).

Probable cause is an indispensable element of a Dragonetti action. “Absent material conflicts in the evidence, the presence or absence of probable cause is for the court to determine.” Meiksin v. Howard Hanna Company Inc., 404 Pa. Super. 417, 421, 590 A.2d 1303, 1305 (1991) and cases cited. “If probable cause is shown to have existed, an absolute defense is established against [a case] for malicious prosecution, even when express malice is proved.” Meiksin, supra at 421, 590 A.2d at 1305, quoting 52 Am.Jur.2d malicious prosecution section 50 (1970). This Dragonetti action is without merit.

D. The Martin Attorneys Did Not Demonstrate Malice Nor Were They Grossly Negligent

The underlying litigation of civil action no. 04-04497 was commenced in June 2005. Not until February 2006, did the Tupitzas (defendants in the underlying case) file their amended answer to the amended complaint and new matter.

The Orphans’ Court hearing convened in April 2006, and Judge Platt issued her comprehensive decision on August 30, 2006. James McBride, Esquire, testified at his deposition, atN.T. 23:

“I do recall getting the opinion of Judge Platt, and for whatever reason, it appears that I think — somewhat to Aaron’s surprise — -that she decided to litigate almost all the issues in the case, even those that were before Judge Nagle.”

The record reflects that 60 days later, on October 30, 2006, the Martin attorneys withdrew the counts of the amended complaint. It is clear that the Martin attorneys did not unduly prolong or “continue” the civil proceedings against John Tupitza, Esquire and Harriett Young Tupitza. As soon as the Orphans’ Court decision was released, counsel reassessed their civil cause of action. This court concludes that there is no evidence of an intent “to harass or maliciously injure the opposite party,” per 42 Pa.C.S. §8352(3).

The Tupitzas, plaintiffs herein, contend that because the Martin attorneys pursued an appeal to Count I of the civil action, intentional interference with inheritance, per Restatement (Second) of Torts, §774B, they were grossly negligent or showed malice. This court does not agree.

The Martin attorneys were reasonable when pursuing the claim for appellate review when the factors in Deborah Hamilton’s matter so closely mirrored the considerations set forth in the Restatement. Their client was convinced that her mother would not knowingly convey such a disproportionate share of the farm acreage to James and Harriett Tupitza in the absence of interference. March 10, 2005, N.T. 39-43; Orphans’ Court, April 7, 2006, N.T. 54-55; deposition, November 23, 2009, N.T. 25-28, 46-48, 55-56. Unlike Hollywood v. First National Bank of Palmerton, 859 A.2d 472 (Pa. Super. 2004), where the Superior Court determined that the facts suggested, “mere negligence,” here the inter vivos transfers by Mrs. Young with the “assistance” of her son-in-law, might well have presented demonstrable interference to compel a reassessment of Pennsylvania’s definition of the tort.

Finally, James and Harriett Tupitza claim that the Martin attorneys were grossly negligent or showed malice by contacting the Internal Revenue Service. This caused the Tupitzas to expend resources to defend themselves from the tax assessment and deficiency notice. Here, as noted in City of Coatesville v. Jarvis, 902 A.2d 1249, 1253 (Pa. Super. 2006), the Martin attorneys did not initiate, procure or continue a legal proceeding when the IRS has an established procedure where their client, Deborah Hamilton, might be eligible for a finder’s fee. Deposition of Thomas A. Martin, June 29, 2009, N.T. 56-59. It was the IRS which conducted the inquiry and not the Martin attorneys. To hold that it was the Martins who initiated, procured or continued legal proceeding under these facts, would permit liability to be imposed in virtually any case in which a defense was raised to an administrative proceeding. See Al Hamilton Contracting Company v. Cowder, 434 Pa. Super. 491, 644 A.2d 188 (1994).

In Hart v. O’Malley, 781 A.2d 1211 (Pa. Super. 2001), the appellate court reiterated the definition of gross negligence at 1218:

“Gross negligence is defined, inter alia, as a lack of slight diligence or care, or a conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party, who may typically recover exemplary damages... Gross negligence has also been described as ‘the want of even scant care’ and the ‘failure to exercise even that care which a careless person would use.’ (citations omitted)

James Tupitza, Esquire and Harriett Young Tupitza are unable to demonstrate on this record that the Martin attorneys acted with malice or without probable cause or with reckless disregard or in a grossly negligent manner.

III. Conclusion

More than one hundred years ago, in Wise’s Estate, 182 Pa. 168, 171, 37 A. 936 (1897), our Pennsylvania Supreme Court held:

“Transactions by which a decedent shortly before his death practically strips himself of all his available property are naturally regarded with suspicion, and are to be scrutinized with a keen and somewhat incredulous eye.”

See also, Hera v. McCormick, 425 Pa. Super. 432, 450, 625 A.2d 682, 691 (1993); Estate of Keiper, 308 Pa. Super. 82, 454 A.2d 31 (1982). The only way for Deborah Hamilton to scrutinize her mother’s transactions was by engaging the civil process through her attorneys.

After reviewing the chronology of events and considering the circumstances in a light most favorable to Mrs. Young’s daughter and son-in-law, the non-moving parties, summary judgment is granted in favor of the Martin attorneys.


source: Caselaw Access Project

author: BERNSTEIN, J,

license: Public Domain

text:
    Thibodeau v. Comcast Corporation

      Gerald J. Williams and Mark R. Cuker, for plaintiffs.

      Seamus C. Duffy, RonaldH. Reynies, Michael P Daly, Robert C. Heim, Alyson M. Oswald, Peter M. Ryan, Catherine J. Rosato and Justin N. Pentz, for defendants.
    June 21, 2010
   BERNSTEIN, J,

On March 19,2004, Comcast cable customer Philip Thibodeau filed a class action complaint against defendants Comcast Corporation, Comcast Cable Communications Inc., Comcast Holdings Corporation, Comcast Cable Communications Holdings Inc., Comcast Cable Holdings LLC, Comcast MO Group Inc., Comcast MO of Delaware Inc., and Comcast of Massachusetts II Inc., (collectively defendants). On September 11, 2007, Philip Steinberg filed a petition to intervene as a representative plaintiff. On October 9, 2007, the court granted Steinberg’s petition to intervene.

On November 15, 2007, Thibodeau and Steinberg (collectively representative plaintiffs) filed an amended complaint that alleged the following six counts: (I) Unfair Trade Practices and Consumer Protection Law Violations; (II) breach of contract; (III) unconscionability; (IV) unjust enrichment; (V) accounting; and (VI) constructive trust. Plaintiffs’ claims that survived preliminaiy objections and motions for summary judgment are counts (II) breach of contract; (IV) unjust enrichment; and (V) accounting. Plaintiffs filed amotion for class certification on August 29, 2008. A certification hearing was held on September 29,2009. OnApril 12,2010, the court denied plaintiffs’ motion for class certification and found plaintiffs failed to meet the typicality, commonality, or numerosity requirements of Rule 1702 of the Pennsylvania Rules of Civil Procedure. On May 12, 2010, plaintiffs filed an appeal.

Representative plaintiffs and class members are current or former subscribers of Comcast or its predecessors from March 20, 1998 to the present (class period). During the class period, representative plaintiffs and class members were subscribers of defendants’ cable services under standardized contracts.

The requested class definition was “all current and former home cable television subscribers to defendant Comcast Corporation or any other defendant or their predecessors in the States of Pennsylvania, Massachusetts, Colorado, Connecticut, Minnesota, New Jersey, Ohio, Oregon, Vermont, and Wisconsin who had a cable converter box and/or remote control installed from March 20,1998, to the present, and who during this period paid rental fees for this equipment during months when they received standard basic or any other tier of service, all of whose channels are unscrambled, except that Pennsylvania subscribers must have made such payments on or after March 20,2000. Colorado subscribers must have made such payments on or after March 20, 2001.” The differences in date are due to the differences in the applicable statute of limitations.

The amended complaint alleged defendants improperly collected and retained fees from class members for the rental of converter boxes and remote controls which were unnecessary because the class members owned cable-ready televisions or VCRs capable of receiving basic programming without such equipment.

Plaintiffs claimed defendants failed to offer class members cable service without unnecessary equipment. Plaintiffs further claimed defendants failed to adequately notify class members of alternatives to converter boxes such as using universal remote controls available for cable-ready televisions or VCRs. Plaintiffs claimed defendants also failed to adequately notify class members when they no longer needed to rent converter boxes or remote controls. Plaintiffs alternatively claimed defendants charged class members more than the fair rental value of the equipment. Finally, plaintiffs claimed federal law prohibited defendants from purporting to bind subscribers to any contract which required payment for equipment subscribers did not affirmatively request.

The purpose of class action lawsuits is “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709;
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rfile 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
“(b) Where equitable or declaratory relief alone is sought, the court shall consider
“(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
“(2) whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratoiy relief appropriate with respect to the class.
“(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that decisions in favor of maintaining a class action should be liberally made.” Cambanis v. Nationwide Insurance Company, 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party needs only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (2002) (quoting Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 454 (1982).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element.” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “The weight and credibility of the evidence are not factors at this stage.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, the term “ ‘prima facie right to custody’ means only that the party has a colorable claim to custody of the child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). (citation omitted) Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williamsburg Community School District v. Pennsylvania Human Relations Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of Borough of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (Pa. Super. 1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made; ... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. Debbs v. Chrysler Corp., 810 A.2d, at 154. The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. 1977 explanatory comment to Pa.R.C.P. 1707. Where evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa. Super, at 128,451 A.2d at 454-55. Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Professional Flooring Co. v. Busher Corp., 61 D.&C.4th 147, 153, (Montg. Cty. 2003), citing Debb’s v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002); Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 128, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co. Inc., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Company, 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test. The burden of persuasion and the risk of non-persuasion however, rest with the plaintiff.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that, decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super, at 128, 451 A.2d at 454, citing and quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case . . . any error should be committed in favor of allowing the class action”).

Likewise, the Commonwealth Court has held that “in doubtful cases any error should be committed in favor of alio wing class certification.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). (citation omitted) This philosophy is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied,” Janicik, 305 Pa. Super, at 129, 451 A2d at 454.

Within this context, the court examined the requisite factors for class certification. Defendants alleged plaintiffs failed to fulfill the requirements of typicality, commonality, and numerosity.

I. TYPICALITY

The plaintiffs must meet the requirement of typicality. Typicality requires the plaintiff to show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that pursuit of their interests will advance those of the proposed class members. DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

Plaintiffs claimed defendants either breached the contractual duty of good faith and fair dealing or were unjustly enriched by billing customers for unnecessary equipment without obtaining their affirmative request.

Federal law prohibits cable service providers from charging customers for services or equipment the customer did not request. This prohibited billing practice is commonly referred to as “negative option billing.” The United States Code specifically provides, “A cable operator shall not charge a subscriber for any service or equipment that the subscriber has not affirmatively requested by name ... a subscriber’s failure to refuse a cable operator’s proposal to provide such service or equipment shall not be deemed to be an affirmative request for such service or equipment.” A subscriber’s affirmative request for service or equipment may be made orally or in writing.

Representative plaintiff Thibodeau had a “dual plant system” that did not allow cable to be hooked up directly to his television. Dual plant systems require an intermediary device such as an A/B switch or a converter box. If the user wishes to use a remote control with a dual plant system, a converter box must be used. Because Thibodeau needed a converter box to receive cable and use a remote control, the converter box was necessary equipment.

Representative plaintiff Steinberg had cable hooked up directly to his three televisions for nine years. In 1998, Steinberg had a Comcast installer in his home and Steinberg asked the installer why he did not receive all channels on one of his televisions. Steinberg claimed the Comcast installer mistakenly told Steinberg he needed a converter box. Steinberg then called Comcast and affirmatively requested a technician come to his home and install a converter box. Once the converter box was installed, Steinberg received all channels.

Representative plaintiffs’ positions are not sufficiently aligned with that of the absent class members. Representative plaintiff Thibodeau’s claims are not typical of the class because Thibodeau, unlike allegations as to the rest of the class, needed a converter box. Representative plaintiff Steinberg’s claims are not typical of the class because Steinberg, unlike allegations as to the rest of the class, affirmatively requested a converter box. The plaintiffs have failed to meet the requirement of typicality.

II. COMMONALITY

The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra at 133, 451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beech-nut Nutrition Corp., 419 Pa. Super. 403, 615 A.2d 428 (1992)). However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra at 133 n.5, 451 A.2d at 457 n.5.

“While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 452, 487 A.2d 995, 997 (1985). (citations omitted) In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition Corporation, 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). Where there exists intervening and possibly superseding causes of damage however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 233-34, 530 A.2d 499, 504 (1987).

Related to this requirement for certification is whether trial on a class basis is a fair and efficient method of adjudication under the criteria set forth in Rule 1708. In addition to the existence of common questions of law and fact, plaintiffs must also establish that the common issues predominate. Accordingly the analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janick, supra at 141, 451 A.2d at 461.

Plaintiffs proposed to certify a class of all Comcast basic service subscribers who had a cable box and/or remote control installed during the class period and who paid rental fees for this equipment. As demonstrated by the representative plaintiffs, plaintiff class’ claims cannot be resolved without highly individualized inquires. Determining which customers affirmatively requested a converter box and/or a remote control must necessarily involve a customer-by-customer inquiry. Determining whether the equipment was unnecessary must necessarily involve a customer-by-customer inquiry. These individual issues predominate over common issues. The facts surrounding each of the class members’ claims are not substantially the same. Plaintiffs have failed to meet the requirement of commonality.

III. NUMEROSITY

The claimants must also meet the requirement of numerosity by demonstrating that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should plaintiffs sue individually.” Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Company v. Bell of Pennsylvania, 293 Pa. Super. 219, 438 A.2d 616 1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208(1981) (204 plaintiffs sufficiently numerous). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super, at 132, 451 A.2d at 456. (citations omitted)

Defendants claimed plaintiffs failed to meet the numerosity requirement because the class was not ascertainable. In Massachusetts, Comcast had 1,515,471 cable subscribers, of whom 187,362 subscribed for only basic cable services. Of these basic-only subscribers, 30,167 rented converter boxes or other equipment from Comcast. Less than two percent of Comcast’s Massachusetts subscribers were basic-only subscribers who leased cable equipment from Comcast. Plaintiffs have failed to demonstrate how many such subscribers did not need the equipment or did not affirmatively request the equipment, orally or in writing. Nothing in defendants’ records can provide answers to these questions.

Plaintiffs have failed to demonstrate that the class is “so numerous that joinder of all members is impracticable.” Even the representative plaintiffs cannot be counted towards fulfilling the numerosity requirement. The representative plaintiffs either needed or affirmatively requested a converter box. Plaintiffs have failed to meet the requirement of numerosity because without individual inquires, plaintiffs are unable to even ascertain the number of potential class members.

Because plaintiffs failed to meet the requirements of typicality, commonality, or numerosity, the court will not reach the remaining requirements of Rule 1702. The court notes there is no question regarding the adequacy of the attorneys for the representative plaintiffs and their ability to adequately represent the interests of the class. The attorneys are certainly adequate to represent the interest of the class.

For the reasons set forth above, plaintiffs failed to meet the typicality, commonality, or numerosity requirements of Rule 1702 of the Pennsylvania Rules of Civil Procedure and plaintiffs’ motion for class certification was denied.

      . Class certification hearing September 29, 2009, N.T. p. 5, lines 17-25, 1-10.

      . Amended complaint; see also, plaintiffs’ opposition to defendants’ motion for partial summary judgment at ¶3.

      . Class certification hearing September 29,2009, N.T. p. 10, lines 3-6.

      . Class certification hearing September 29, 2009, N.T. p. 4, lines 5-11.

      . 47 U.S.C. §543(f). See also, In re Monmouth Cablevision, Monmouth Cty., NJ, no.LOI-94-1 (F.C.C.Aug. 22, 1995) at ¶ 11. In construing and applying this provision, the Federal Communications Commission (FCC) has found that it “protects the interest of subscribers in not being billed for services or equipment they have not requested.” Moreover, since the “restrictions of this provision protect subscribers from having to take on the burden of identifying and negatively responding to charges for services that appear on a bill that are not desired and for which no request has been made,” the FCC has concluded that it “protects subscribers both from inadvertent payment of such charges and from becoming contractually bound for them.”

      .47 C.F.R. §76.981(a).

      . Class certification hearing September 29, 2009, N.T. p. 75-77.

      . Class certification hearing September 29, 2009, N.T. p. 78-80.

      . Deposition of Philip Steinberg, June 9, 2008, p. 40-41.

      . Plaintiffs’ exhibit 14, page 7, ¶2.

      . Defendants’ memorandum of law in opposition to plaintiffs’ motion for class certification, p. 55 ¶2.

      . Any possible class members who wanted “on demand” needed a converter box.


author: NEW, J,

text:
    Bochetto & Lentz P.C. v. Whitman Council Inc.

      George Bochetto and Trida Desmanas, for plaintiff.

      Joseph F. Mikolaitis, for defendant.
    March 18, 2010
   NEW, J,

Plaintiff law firm Bochetto & Lentz P.C. filed this action against defendant Whitman Council Inc. Whitman Council did not respond to the complaint, and plaintiff obtained a default judgment against the council on July 8, 2009, in the amount of $122,789.17.

In December, 2009, plaintiff caused writs of execution to be served on numerous banks, including TD Bank, N.A. On January 14, 2010, TD Bank filed answers to interrogatories admitting that Whitman Council had three accounts at TD Bank containing total funds of $ 14,542.21. That same day, plaintiff entered judgment by admission against garnishee TD Bank in the amount of $ 14,542.21. On January 27,2010, TD Bank transferred all the funds from the council’s bank accounts to plaintiff.

On February 1,2010, the City of Philadelphia filed an emergency motion to stay proceedings and a petition to intervene, stay and set aside writ of execution. In its motions, the city represented that part of the funds held in Whitman Council’s accounts at TD Bank were federal grant monies that are immune from levy. The court initially granted the emergency motion to stay, but when it became clear the funds had already been transferred to plaintiff, the court lifted the stay.

On March 17, 2010, the court held a hearing on the petition to intervene. At the hearing, city witnesses testified the city receives community development block grant funds from the United States Department of Housing and Urban Development. The city enters into yearly contracts with neighborhood advisory committees, such as Whitman Council, to offer certain community services in exchange for federal block grant funds.

Throughout 2009 and 2010, Whitman Council submitted monthly invoices and bank statements to the city detailing the eligible expenses it had incurred in the previous month. The city approved qualified expenses for reimbursement and forwarded block grant funds to Whitman Council to reimburse such expenses. Whitman Council was required to deposit the federal funds it received into a separate account and not to commingle them with any other funds. Whitman Council kept the federal monies it received in TD Bank account number *********, which was one of the accounts which plaintiff garnished. In January 2010, the account contained $7,931.39, which TD Bank transferred to plaintiff. The city seeks the return of those funds to Whitman Council’s account.

The city’s request is untimely. Unfortunately, Whitman Council failed to notify the city of the July, 2009 default judgment and of the levy against the council’s accounts until mid-January when TD Bank responded to the garnishee interrogatories. At that time, the city, Whitman Council, or TD Bank could have made a claim for exemption or immunity with respect to the federal funds in the council’s account. If the claim had been made then, execution would have been stayed, and the court would have had a chance to rule upon the matter before judgment was entered against TD Bank. No one made a claim before judgment was entered and the funds were transferred to plaintiff. Now, it is too late.

Even if the city timely raised the issue of immunity of federal funds, the evidence does not establish that the $7,931.39 transferred from TD Bank to plaintiff was comprised of federal funds. The city entered several of Whitman Council’s TD Bank account statements into evidence. The last bank statement the city submitted was for the period ending October 31, 2009, and it reflected a balance of $6,888.92. There was no evidence of what federal funds, if any, were added to or subtracted from the account in the subsequent three months. Therefore, the court cannot conclude that the $7,931.39 transferred to plaintiff at the end of January 2010, was comprised of federal funds.

Even if the entire $7,931.39 constituted federal block grant funds, the funds may not be exempt from execution. The funds paid by the city to Whitman Council were not grant monies given in trust for work to be done in the future, which funds would retain their federal exempt status until used for the purpose for which they were given. Instead, the funds the city gave to the council were reimbursements for program costs that the council had already paid by check. Once the reimbursement monies were transferred to the council, they ceased to be federal funds and became Whitman Council’s funds. The council’s funds are subject to garnishment by the council’s creditors, including plaintiff.

CONCLUSION

For all the foregoing reasons, the city’s petition to intervene, stay and set aside writ of execution is denied.

ORDER

And now, March 18, 2010, upon consideration of the City of Philadelphia’s petition to intervene, stay and set aside writ of execution, the response thereto and all other matters of record, and after a hearing on March 17, 2010, and in accord with the opinion issued simultaneously, it is ordered that the petition is denied.

      . See Pa.R.C.P. 3121, 3123.1, 3142.

      . See Pa.R.C.P. 3121, 3123.1.

      . See Kalman v. Muzikar, 304 Pa. Super. 503, 505, 450 A.2d 1025, 1026 (1982) (“a judgment that has been satisfied no longer exists and cannot be attacked either by a motion to strike or by a motion to open.”).

      . Exhibit C-9.

      . See Palmiter v. Action Inc., 733 F.2d 1244, 1247 (7th Cir.1984) (“It is well settled that federal monies are not subject to garnishment proceedings until they have been paid out for the purposes for which they were appropriated.”).
      According to the city’s witness, the last time the city advanced funds to the council was in October 2008 and those funds were expended by the council for program purposes by March 2009. All subsequent payments from the city to the council were reimbursements.

      . See exhibits C-7 — C-10 (Whitman Council’s cash disbursement journal entries from 8/1/09 — 11/30/09).

      . Cf. Palmiter, 733 F.2d at 1249 (court did not allow creditor to attach federal funds paid in reimbursement for initial indirect grant expenditures because the evidence [was] clear that [the judgment debtor] ‘borrowed’ other federal grant funds to make the expenditures, so that the reimbursement funds [had to] be repaid to those accounts and used for those grant purposes.”).


author: REINAKER, J,

text:
    Fedula v. Fedula

      Thomas D. Dell, for plaintiff.

      Albert J. Meier, for defendant.

      July 28, 2010
   REINAKER, J,

On December 11, 2003, the plaintiff, Michael Fedula, filed this action alleging that a partnership existed between himself and his brother, the defendant. On February 24, 2010, a hearing was held before this court to determine whether a partnership existed. The court finds that a partnership did exist between Michael Fedula, and his brother Stephan Fedula.

In 1979, the plaintiff, his defendant brother and David Farber leased a garage at 5th and Greenwood in Philadelphia. Their business involved buying used cars, fixing them up and reselling them for profit. The plaintiff contributed several used cars and some of his own money to the start of the business. Farber left the business after just a few weeks, and the brothers continued to carry on the business together. They operated their business under the fictitious name of Glenwood Auto Sales with their business card listing both of their names. The parties never entered into a formal written agreement, but continued their business together until July of 1999 when the plaintiff left the partnership.

Throughout the 1980s, the parties rented dealer licenses from DB Motors so they could attend dealer-only car auctions. In 1991, the parties rented an office in Ephrata, Pennsylvania so they would be located closer to the Manheim Auto Auction. During this time, they also continued to maintain their Glenwood Garage in Philadelphia. Both parties’ names remained on that lease until 1995. In 1992, the parties created Emerson Auto Sales. This business had its own dealer license enabling the parties to attend dealer-only auctions. A few years later, in November of 1997, the parties purchased a property in Lititz, Pennsylvania to use as an office and lot for their used car business. Both parties were listed on the deed to that property as tenants in common. Business responsibilities were shared by the parties, and their tax returns reflected an even split of profits and expenses. Finally, in 1999, the plaintiff’s frustrations with his brother led him to leave the partnership and demand his 50 percent of the business.

In Pennsylvania, a partnership is defined as “an association of two or more persons to carry on as co-owners of business for profit” 15 Pa.C.S. §8311. A written agreement between the parties is not necessary to establish a partnership. Gohen v. Gravelle, 411 Pa. 520, 192 A.2d 414 (1963). “In ascertaining whether a partnership exists, it is necessary to consider all the attending facts and circumstances.” Grasavage v. Unemployment Compensation Board of Review, 199 Pa. Super. 396, 399, 186 A.2d 46, 47 (1962). Further, receiving a share of the profits of the business is prima facie evidence of a partnership. 15 Pa.C.S. §8312.

In this case, the plaintiff acknowledged that no written partnership agreement existed between the parties. Instead, there was an oral agreement between the parties to join together as partners to buy and sell cars and to share the profits of the business equally. The plaintiff did not receive a wage or salary from the business. When the plaintiff needed money, he would simply ask his brother for the amount he desired and his brother would give it to him from the partnership funds. The plaintiff operated under the belief that both he and his brother were drawing equal amounts from the partnership funds pursuant to their original agreement. It wasn’t until 1999 that the plaintiff became frustrated with his brother, because he believed his brother was no longer sharing the profits equally.

Other evidence of the existence of a partners besides the plaintiff’s own testimony is present in this case as well. The parties shared responsibilities in running their business. The plaintiff would do whatever needed to be done for the business, including repairing and detailing cars. The plaintiff also attended car auctions to buy and sell cars and was sometimes accompanied by the defendant. The defendant was responsible for most of the paperwork of the business and maintained the accounting for the business. It was the defendant who provided all of the business information to the tax preparers who prepared both parties’ tax returns. For tax years 1993, 1994,1995,1997 and 1999, all profits and expenses were split evenly between the parties. It was the tax preparers’ impressions from speaking with the defendant that an equal split was appropriate as the parties were operating the business as a partnership.

The defendant maintains that a partnership did not exist, and points to the fact that Emerson Auto Sales was registered with the Pennsylvania Department of State solely in the defendant’s name. This fact, however, is not conclusive by itself. After considering all of the facts and circumstances in this case, the court finds that a partnership existed between the parties beginning in 1979 and lasting until the plaintiff left in July of 1999.

ORDER

And now, July 28, 2010, it is hereby ordered and decreed that the parties were partners in a used car business from 1979 through July 1999, and that such partnership is ruled dissolved as of July 1999. The settling of accounts between the partners shall now proceed under the rules for distribution set forth in 15 Pa.C.S. §8362.


author: SMYTHE, J,

text:
    Commonwealth Financial Systems Inc. v. Hill

      Gary I. Spivack, for plaintiff.

      Edwin M. Matzkin, for defendant.
    July 19, 2010
   SMYTHE, J,

This was an action to collect on credit card debt. The crux of the dispute was whether defendant, Robert C. Hill, had ever possessed and used the credit card or not. The court, after a trial without a jury, did not believe Hill’s testimony that he never had the credit card nor made the charges on it upon which plaintiff Commonwealth Financial Systems, the owner by assignment of the debt, was suing, and did not know of the card or the debt until he received the complaint in this case.

Upon this court’s decision after the trial that Hill owed Commonwealth $10,625.94 in satisfaction of the debt on the card, Hill filed post-trial motions. After the notes of testimony were transcribed, we entertained briefing and argument on the post-trial motions. In an order dated November 10, 2009, we denied them.

Although the order denying post-trial motions was not itself a final judgment and therefore not immediately appealable, seePa.R.A.P. 301 and note; Pa.R.A.P. 341(b), Hill filed a notice of appeal of the order to the Superior Court of Pennsylvania. He did not file a praecipe to enter final judgment on the order until March 17, 2010. Nor did he prove service of a copy of the notice of appeal upon our court administrator or his designee as required by Pa.R.A.P. 906(a)(4). However, as there is no indication our court administrator keeps any records or takes any action with regard to appeals taken from this court, this defect in service is of little moment.

We directed Hill to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response, Hill filed a statement claiming it was error for us to deny his motion for directed verdict and post-verdict motion in that plaintiff the third assignee of the alleged credit card debt originally owed Citibank — failed to meet its burden'of proof in this collection action by (A) failing to produce and enter into evidence the original cardholder’s agreement between Citibank and defendant or any evidence showing that defendant ever possessed a credit card from Citibank; (B) failing to produce and enter into evidence a complete statement of account itemizing the alleged debt; and (C) failing to prove the chain of custody of the debt from Citibank through two intermediate assignees to plaintiff. (Statement paras. 1-4.) The statement also complained that we erred in not ruling on Hill’s motion for summary judgment. (Statement para. 5.)

We will address points (A) and (B) as set forth above together. These arguments posit that plaintiff failed to carry its burden of proof of Hill’s debt on a Citibank credit card by not producing evidence of an original cardholder’s agreement or a statement of account itemizing the debt, or any evidence showing Hill ever possessed a credit card from Citibank. However, we find that the brief testimony of Hill at trial, which frankly took the court by surprise, was so inherently incredible and contradictory to his sworn statements in the pleadings and the other evidence that it in effect admitted the existence of the card and the legitimacy of the underlying debt, even without introduction of the original cardholder’s agreement or statements of account.

The Superior Court’s standard of review of a non-jury trial is well established. Parker Oil Company v. Mico Petro and Heating Oil LLC, 979 A.2d 854, 856 (Pa. Super. 2009). The Superior Court may “reverse the trial court only if its findings of fact are predicated on an error of law or are unsupported by competent evidence in the record. As fact-finder, the judge has the authority to weight the testimony of each party’s witnesses and to decide which are most credible.” Id.

“The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Furthermore, our standard of review demands that we consider the evidence in a light most favorable to the verdict winner.” Levitt v. Patrick, 976 A.2d 581, 589 (Pa. Super. 2009).

“In a non-jury trial, the trial judge sits as the finder of fact. In a case such as this, where the credibility of a witness is at issue, the weight to be assigned the testimony of the witness is within the exclusive province of the fact-finder. The trial court, as sole assessor of credibility, may believe all, part or none of the evidence presented. Molag Inc. v. Climax Molybdenum Company, 431 Pa. Super. 569, 572, 637 A.2d 322, 324 (1994). (citation omitted)

Plaintiff’s counsel called Hill as a witness as on cross-examination. (Bench tr. 34, May 20, 2009.) Under such examination, Hill testified he did not recall applying for or receiving the credit card from Citibank, had never used it, never received any statements, never received any letters from plaintiff or its counsel about the debt, and never heard about it until the complaint in this action was taped to his door. (Bench tr. 35-37.) This court totally disbelieved Hill’s testimony on each of these points, and considered it in effect to admit the existence of the card and the underlying debt.

We especially so found in light of the statement in Hill’s answer to the complaint, “It is admitted that defendant used the credit card and made periodic payments.” (Answer para. 4.) Admissions in pleadings are judicial admissions and cannot be contradicted at a later date by the party who made them regardless of the method by which he seeks to contradict his prior admission. Rizzo v. Haines, 520 Pa. 484, 506, 555 A.2d 58, 69 (1989). Such pleadings are conclusive in the cause of action in which they are filed. Id.

When Hill at trial contradicted the “conclusive” admissions made in his answer that he used the credit card that was the source of the underlying debt and this action and had made periodic payments on it, he led the court to disbelieve his entire position that the card did not exist or was not used by him or that the amounts sought were not in fact due and owing. Applying the ancient Roman and now modem American legal maxim “falsus in uno, falsus in omnibus,” the court also concluded that Hill had no legitimate defense to the action or grounds for challenging the precise amount claimed to be due. Literally, the Latin phrase means “false in one thing, false in eveiything.” Black’s Law Dictionary 543 (5th ed. 1979). Practically, it means that “if testimony of a witness on a material issue is willfully false and given with an intention to deceive, [the fact-finder] may disregard all the witness’ testimony.” Id. The court found Hill’s willfully false denial at trial that he had ever used the card or received statements of account, rather than attempting to prove that the amounts sought were improper, inaccurate, or wrongly calculated, served to admit that he had no legitimate contest to the amounts claimed to be due in plaintiff’s complaint and documentary evidence submittedat trial.

In the related context of debt on a mortgage, the Superior Court has stated, “general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts,” First Wisconsin Trust Company v. Strausser, 439 Pa. Super. 192, 199, 653 A.2d 688, 692 (1995), as “[unquestionably, apart from [the creditor], [debtors] are the only parties who would have sufficient knowledge on which to base a specific denial,” id. at 200, 653 A.2d at 692, and “reliance upon [Pa.R.C.P. 1029(c)] does not excuse a failure to deny or admit factual allegations when it is clear that the pleader must know if the allegations are true or not.” Id. at 200, 653 A.2d at 692. Similarly, here, Hill’s failure either to admit or to deny the validity of the credit card debt plaintiff sought to recover, and choice instead to deny the existence of the credit card altogether, in this court’s view admitted that the amounts sought were correct.

To establish the proposition that a creditor must produce a cardholder’s agreement and statements of account to carry the burden of proving credit card debt, defendant relied heavily in post-trial motions on Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003), and Worldwide Asset Purchasing LLC v. Stern, 153 Pitts. Leg. J. 111 (Allegheny Cty. 2004). Those cases dealt with the requirement of Pa.R.C.P. 1019(i) to attach to a complaint the writings upon which a credit card collection claim was based. Each decision determined preliminary objections under Pa.R.C.P. 1028, or, in the case of Giuliana, preliminary objections proposed as a meritorious defense to the underlying claim after the creditor took judgment by default in the collection action. The decisions sustained preliminary objections to the sufficiency of the complaints, and allowed them to be amended.

Here, however, Hill did not preliminarily object to the complaint to test its sufficiency. Rather, he filed an answer to the complaint on the merits, therein admitting use of the credit card and the making of periodic payments on it. (Answer para. 4.) The case has now gone to trial, and Hill presented testimony the court found to be willfully deceptive and contradictory to the admissions he made in the answer. Any objections to the sufficiency of the complaint are long since water under the bridge, and are waived. See Pa.R.C.P. 1028(b); see also, Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n.3, 461 A.2d 600, 603 n.3 (1983).

Defendant also cited Giuliana in support of the argument captioned under (C) above, an assertion plaintiff failed to show the chain of possession of the debt from Citibank through two intermediate assignees to plaintiff. Again, Giuliana arose at the stage of preliminary objections. Here, the parties presented evidence at trial, and the court found plaintiff’s testimony and documentary evidence to have adequately established the chain of possession of the credit card account and tied it to defendant. (Bench tr. 16-21.)

Hill’s final argument on appeal is that the court should have addressed his pretrial motion for summary judgment. Having conducted a full trial, at which the court found the evidence sufficient to establish plaintiff’s claim, we now find the motion for summary judgment to be likewise moot.

Moreover, Hill never properly presented his motion for summary judgment for disposition by the court. The Pennsylvania rule governing summary judgment provides, “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....” Pa.R.C.P. 1035.2. (emphasis added) The rules also specify, “Every court shall promulgate a local rule, numbered Local Rule 1035.2(a), which describes the court’s procedures for the disposition of motions for summary judgment and which (1) shall set forth the manner in which motions for summary judgment are scheduled, argued and decided....” Pa.R.C.P. 239.7(1). Our local rule promulgated pursuant to the Pennsylvania rule provides, “After filing of respondent’s answer [to a motion for summary judgment] and/or the completion of discovery, any party may file with the prothonotary, in duplicate, a praecipe for argument in the form set forth herein, including a certification that a copy thereof has been served upon all other parties.” Mont. Cty. C.C.R. 1035.2(a)(3). Defendant filed his motion for summary judgment in December 2008 and plaintiff answered in January 2009. However, neither party filed a praecipe for argument on the motion under the local rule until March 24,2009. By that time, the court administrator had already, on March 20, 2009, sent notice that the case was placed on the trial list for May 4, 2009. Then, on May 14, the court administrator entered an order scheduling the matter for trial before the undersigned May 20, 2009. At that point, when the court took up the case to be heard the morning of the 20th, consideration of the motion for summary would have unreasonably delayed trial. The question to be answered now is the sufficiency of the evidence presented at trial, not the sufficiency of the response to the motion for summary judgment. As discussed previously, we found the evidence at trial sufficient to prove plaintiff’s claim of money owed by defendant on his Citibank credit card account, which he denied even existed despite ample evidence and his own judicial admission to the contrary. We did not err in not deciding the motion for summary judgment the morning of trial.

We respectfully suggest the Superior Court review and affirm our decision after non-jury trial that defendant Robert Hill owed the money claimed to be due by plaintiff, assignee of his credit card account with Citibank. We were somewhat taken aback and bewildered by defendant’s testimony at trial that he had never applied for, used, or received statements on the account, despite the judicial admissions in his answer to the contrary. However, we considered the testimony at trial to have shown him to lack credibility on every issue addressed at trial, including the existence of the account, his knowledge of it and use of the card, and the legitimacy and accuracy of the amounts claimed to be due and owing on the account.


author: GRINE, J,

text:
    Marshall v. Mason

      April C. Simpson, for plaintiff.

      Tonia M. Torquato, for defendant.

      Tami Fees, guardian ad litem.
    July 30, 2010
   GRINE, J,

Presently before the court is a petition for modification of current custody order. Zachariah Marshall (Father) asks the court to allow his two sons, Ezekiel Marshall and Kaleb Marshall be allowed to remain with him in his home in Sterling, Virginia where they have lived since approximately August 2009. Penny Mason (Mother) asks the court to award her full custody of the boys so that they can return to Centre County, Pennsylvania and live with her, her paramour Michael Reitz, and her two-year-old daughter Olivia.

FINDINGS OF FACT

(1) Mother and Father were never married but lived together from 1993 through December 2006.

(2) Ezekiel was born on May 13,1994 and Kaleb was born on July 27, 1997.

(3) Both Mother and Father have allegedly had problems with controlled substances in the past.

(4) Father has been diagnosed with several severe medical conditions over the years. Fie was at different times prescribed narcotics for the treatments of these conditions.

(5) Father admits that he relocated to Virginia in part to pursue a relationship with Patricia Gabriel. Father claims that his unstable employment in the State College area also contributed to his decision to relocate.

(6) Father claims that Mother chose to leave him and the children in December 2006.

(7) Mother is currently living with her paramour, Mr. Reitz.

(8) Mr. Reitz testified that he liked Kaleb, but had nothing to say about Ezekiel.

(9) Ezekiel, Father and Mother’s sister, Kim Carney, claim that Mr. Reitz threatened to harm Ezekiel.

(10) Ezekiel and Kaleb were both interviewed by the court in the presence of counsel.

(11) Both children expressed a preference to live with Father.

(12) Both children expressed the belief that Mother could not properly care for them.

(13) Ezekiel claimed that if he had to live with Mother and Mr. Reitz, he would run away.

(14) Both children expressed that they were happy living in Virginia, and that they wished to remain there.

CONCLUSIONS OF LAW

(1) “The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” This determination is to be made on a case by case basis. Speck v. Spadafore, 895 A.2d 606, 609 (Pa. Super. 2006) (quoting Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264, 265 (1997); citing Myers v. DiDomenico, 441 Pa. Super. 341, 657 A.2d 956, 957 (1995).

(2) In a custody dispute, a trial court must determine what arrangement is in the best interest of the child, conducting a searching inquiry into all facts and circumstances having an impact on the child’s physical, intellectual, moral, and spiritual well-being. Jackson v. Beck, 858 A.2d 1250, 1253 (Pa. Super. 2004).

(3) “[AJbsent compelling reasons to the contrary, the policy in Pennsylvania is to permit siblings ... to be raised together” Saintz v. Rinker, 902 A.2d 509, 513 (Pa. Super 2006).

(4) “The Pennsylvania Domestic Relations Code, 23 Pa.C.S. §101 et seq., is clear that a trial court is required to consider a child’s preference before entering an award of partial custody, as well as any other factor which will legitimately impact the child’s physical, intellectual, and emotional well being. See 23 Pa.C.S. §5303(a)(l). The weight to be afforded to the child’s preference varies with the age, maturity, and intelligence of that child, together with the reasons given for the preference. Gianvito v. Gianvito, 975 A.2d 1164, 1170 (Pa. Super. 2009) (citing Wheeler v. Mazur, 793 A.2d 929, 938 (Pa. Super. 2002)).

(5) “[A] parent’s ability to care for a child must be determined as of the time of the custody hearing and not as of an earlier time” Gianvito v. Gianvito, 975 A.2d 1164, 1169 (Pa. Super. 2009.) (citing Wiseman v. Wall, 715 A.2d 844, 847 (Pa. Super. 1998).

(6) “When custodial parent seeks to relocate at a geographical distance and the non-custodial parent challenges the move, the custodial parent has initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children[, and,] [i]n addition, each parent has burden of establishing the integrity of his or her motives in either desiring to move or seeking to prevent it[;] . . . court must then consider . . . feasibility of creating substitute visitation arrangements to ensure continuing, meaningful relationship between children and non-custodial parent.” Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 440 (1990).

(7) The best interests of children cannot always be separated from the interests of their custodial parents, as the custodial parent’s mental well being affects his or her ability to parent their child. Thomas v. Thomas, 739 A.2d 206, 214 (Pa. Super. 1999).

(8) Determinations regarding child custody and relocation must be made on a case-by-case basis. Zoccole v. Zoccole, 751 A.2d 248, 251 (Pa. Super. 2000).

DISCUSSION

In a custody dispute, a trial court must determine what arrangement is in the best interest of the child, conducting a searching inquiry into all facts and circumstances having an impact on the child’s physical, intellectual, moral, and spiritual well-being. Jackson v. Beck, 858 A.2d 1250, 1253 (Pa. Super. 2004). The court finds that it is in the best interest of the children to remain living with Father in Sterling, Virginia. This determination is based on several factors. Both boys expressed a desire to remain living with Father. “The Pennsylvania Domestic Relations Code, 23 Pa.C.S. §101 et seq., is clear that a trial court is required to consider a child’s preference before entering an award of partial custody, as well as any other factor which will legitimately impact the child’s physical, intellectual, and emotional well being. See 23 Pa.C.S. §5303(a)(l). The weight to be afforded to the child’s preference varies with the age, maturity, and intelligence of that child, together with the reasons given for the preference. Gianvito v. Gianvito, 975 A.2d 1164, 1170 (Pa. Super. 2009) (citing Wheeler v. Mazur, 793 A.2d 929, 938 (Pa. Super. 2002)). The court believes that given the age and the maturity of the two boys in this case, their desire to remain with Father should be one of the determining factors in this case. Additionally, Ezekiel’s reasons for wishing to remain with Father are not based on childish whims. Ezekiel has expressed that he has been threatened by Mr. Reitz, and made it clear to the court that he would not be comfortable living with Mother. Kaleb also describe Mr. Reitz as “scary” leading the court to believe that as long as Mr. Reitz is living with Mother, Kaleb would also not be comfortable in her home.

“[AJbsent compelling reasons to the contrary, the policy in Pennsylvania is to permit siblings ... to be raised together.” Saintz v. Rinker, 902 A.2d 509, 513 (Pa. Super. 2006). The court recognizes that Mother has a younger daughter, Olivia, and that she wants her boys to have a relationship with Olivia. The court finds that there are compelling circumstances to keep the boys and Olivia living in separate homes. The boys do not feel comfortable in Mother’s home, and therefore the court does not believe that living with Mother is in their best interest.

“[A] parent’s ability to care for a child must be determined as of the time of the custody hearing and not as of an earlier time” Gianvito v. Gianvito, 975 A.2d 1164, 1169 (Pa. Super. 2009) (citing Wiseman v. Wall, 718 A.2d 844, 847 (Pa. Super. 1998). The court agrees that there were times in the past where Father was not a proper resource for the children. The court, however, finds that Father has moved beyond his past issues with drugs, and has held steady employment for several years. Father clearly cares about the boys, and they have given the court no reason to believe that there are any current issues which would make Father an unfit parent.

Mother has not been a stable force in the children’s life over the past few years. Mother chose to leave Father and the children in 2006. Mother has not taken advantage of arranged visitations with the boys in recent years. Mother is not in frequent contact with the boys while they are with Father. Mother does not have an adequate living space for the boys, as she lives in a two-bedroom residence and also has a two-year-old daughter. In a custody dispute, a trial court must determine what arrangement is in the best interest of the child, conducting a searching inquiry into all facts and circumstances having an impact on the child’s physical, intellectual, moral, and spiritual well-being. Jackson v. Beck, 858 A.2d 1250, 1253 (Pa. Super. 2004). The court believes it is in the best interest of Kaleb and Ezekiel to remain in the primary custody of Father. The court bases this decision on several factors including the expressed preference of the boys, the lack of interest shown by Mr. Reitz in being a parent to Ezekiel, and Mother’s failure to take advantage of her visitation time as well as her minimal contact with the children leading up to the custody hearing.

Father moved the boys to Virginia without permission of the court. Father, however, claims that he discussed the move with Mother, and that Mother had no obj ection. Mother denies this allegation. “When custodial parent seeks to relocate at a geographical distance and the noncustodial parent challenges the move, the custodial parent has initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children[, and,] [i]n addition, each parent has burden of establishing integrity of his or her motives in either desiring to move or seeking to prevent it[;] . . . court must then consider... feasibility of creating substitute visitation arrangements to ensure continuing, meaningful relationship between children and noncustodial parent” Gruber v. Gruber 400 Pa. Super. 174, 186, 583 A.2d 434, 440 (Pa. Super. 1990). The court finds that Father’s decision to move to Virginia was based on his hope to provide the boys with a more stable life, and his fear that he would lose his employment in State College. Father is the sole financial provider for the children and also provides them with health insurance. The court finds that Father set up a reasonable method for continuing visitation with Mother, which Mother failed to take advantage off. Therefore the court will permit Father to remain in Virginia with the children.

The court believes that the children might benefit from attending counseling. Therefore the court advises Father that he should make a reasonable effort to obtain counseling for the children. Failure of Father to address the possible need for counseling for the children will be look at unfavorably in the event of a future motion for custody modification.

ORDER

And now, July 30, 2010, after a hearing on the matter and a review of the parties’ findings of fact and conclusions of law, it is hereby ordered and decreed as follows:

(1) Mother and Father shall share joint legal custody of their minor children Ezekiel Marshall and Kaleb Marshall

(2) Father shall be permitted to remain with the children in Sterling, Virginia. Accordingly, Father shall have primary physical custody of the parties’ minor children subject to Mother’s periods of partial physical custody as follows:

(i) Mother shall have custody of the children every other weekend during the children’s summer vacation. Visits shall take place in State College, Pennsylvania.

(ii) Mother shall have custody of the children one weekend per month during the school year. These visits shall not interfere with the children’s extra curricular activities unless such arrangements would prevent the children from visiting Mother on more than four consecutive weekends. Cancellation of a visit reasonably based on dangerous weather conditions shall not be held against either party.

(iii) Mother shall have custody of the children for two consecutive weeks in the summer,

(iv) Mother shall have custody of the children at other times as may be mutually agreeable between the parties.

(3) Both parents shall have full access to all relevant medical, dental, psychological, educational and religious records of the child. Each parent may obtain such records directly from the provider without the other parent’s consent. Parents shall provide each other with any records not easily obtainable by the other parent. Any school district in which the child attends school shall provide both parents identical information. The custodial parent shall provide to the non-custodial parent on a weekly basis, all school papers, projects, or other products of children’s development, so as to allow a sharing of those items as fully possible.

(4) In implementing the provisions of this order, both parents shall be flexible and act in the children’s best interest. Both parents shall use their best efforts in presenting a united front to Ezekiel and Kaleb and in shielding the children from an awareness of their parents’ discussions and differences. Both parents shall use their best efforts to insure that their spouses, significant others and extended families cooperate in carrying out in the intent and spirit of this order. Each party shall encourage the children in the exercise of the other parent’s custody rights and stimulate the children to maintain a positive and healthy relationship with the other parent and the other parent’s family. Each party shall cooperate in giving the other reasonable notice of their respective scheduling as it may affect visitation and non-visitation to facilitate of the parties’ individual planning and scheduling.

(5) Both parents shall be notified of, and invited to, major events in the children’s life, including, but not limited to; graduations, awards presentations, performances by the children, academic and athletic competition in which the children participate, and similar extracurricular activities.

(6) Each parent shall promptly notify the other of any serious accident or illness or any legal or educational emergency involving the children while in that parent’s custody. If the child is taking medications, that medication or a prescription for the medication shall be made available to each parent. The non-custodial parent shall be provided copies of medical assistance and insurance documents.

(7) Each parent must notify the other of any changes of residential or work address or telephone number.

(8) The parent who does not have custody shall be entitled to reasonable telephone contact with the children. Such contact shall not be monitored, or interrupted, by the custodial parent. In the event of long distance calls, the parents shall agree on specific times when the children will be available to receive calls.

(9) Father shall arrange for the children to attend counseling.

(10) Father shall obtain an evaluation by a batterer intervention program to determine whether he is eligible for batterer intervention services. The court would prefer that Father obtain this evaluation through a program certified by the Virginia Batterer Intervention Program.