author: CAMPBELL, J,

text:
    Kline v. Kline

      E. Jay Tract, for plaintiff.

      Janet Kline, pro se.
    June 19, 2006
   CAMPBELL, J,

A custody trial was held in the above-captioned matter on June 2, 2006. At issue was primary custody of the parties’ minor children Kristopher Kline, born December 7,1994 and Samantha Kline, born November 2, 2001. The court finds as follows:

I. FINDINGS OF FACT

(1) Plaintiff, John E. Kline (Father), is an adult residing at 1462 Cedar Top, Reading, Berks County, PA. Father resides in a three bedroom apartment.

(2) Defendant, Janet Kline (Mother), is an adult residing at 32 East Mohn Street, Mohnton, Berks County, PA. Mother resides in her mother’s two bedroom house.

(3) Mother and Father live close to one another, less than two miles apart. They both reside in the Governor Mifflin School District.

(4) Mother and Father are the natural parents of two children: Kristoffer Kline, born December 7, 1994, and Samantha Kline, born November 29,2001.

(5) Mother and Father were married in 1994 and separated in 2004.

(6) Father filed a divorce complaint in December 2004. This divorce complaint contained a custody claim wherein Father petitioned for primary custody of the children.

(7) On April 25, 2005, after a hearing, a protection from abuse order was entered against Father by the court on behalf of Mother as a protected person. This protection from abuse order contained a custody provision that awarded primary physical custody of the parties’ two children to Mother. Father was awarded partial physical custody of the children on alternate weekends from 12 p.m. Saturday until 6 p.m. Sunday, and each Wednesday from 5:30 p.m. until 8:30 p.m.

(8) The parties participated in a custody evaluation by Andrea W. Sledge M.S.W.

(9) The parties participated in a custody hearing on July 15, 2005. The custody master issued a recommended order August 10, 2005.

(10) Mother filed timely exceptions to the master’s recommended order.

(11) This current custody trial is a trial de novo in response to the exceptions filed by Mother to the custody master’s recommended order of August 10, 2005.

(12) Father graduated from high school.

(13) Father is employed as a painter at Reading Truck Body in Reading. He earns approximately $38,000 a year.

(14) Father works Monday through Thursday from 7 a.m. until 5 p.m.

(15) Mother obtained a G.E.D. and has taken additional college classes. She is currently continuing her higher education at Reading Area Community College (R.A.C.C.).

(16) Mother works part-time at R.A.C.C. and also works part-time at C.P.I. Inc. (Sears Portrait Studio). Mother’s current annual income is unclear. It appears to be in the low range, between $3,500 to $15,000 annually.

(17) Mother’s work hours vary. This school term she was working day shifts at R.A.C.C. between 9 a.m. and 4 p.m. She also attends classes. This term she was attending classes on Monday and Wednesday nights.

(18) Kristoffer Kline, age 11, attends fifth grade at Governor Mifflin Intermediate School.

(19) Samantha Kline, age 4, has been attending preschool at the Reading Area Community College Day Care Center.

(20) The two children also have regular babysitters while Mother is at work,

II. DISCUSSION

Father and Mother both seek primary physical custody. Mother has had primary physical custody by way of the protection from abuse order. Father’s partial custody has only been one overnight every other weekend, and three hours every Wednesday evening. This court considered the testimony of Father — John E. Kline, Mother — Janet Kline, custody evaluator — Andrea Sledge, mother of Ms. Kline — Ms. Michelle Davis, sister of Father — Kristen Kline, sister of Father — Karen Kline, previous neighbor and acquaintance of the two parties — Carol Knepp.

A court’s custody decision “is a determination of what is in the best interests of the child. Such a determination, made on a case-by-case basis, must be premised upon consideration of ‘all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.’ ” Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995), quoting Lee v. Fontine, 406 Pa. Super. 487, 488, 594 A.2d 724, 725 (1991). The best interests of a child are “paramount.” Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995).

While this court will carefully consider Father’s request for primary custody, courts are reluctant to disturb existing custody arrangements which have satisfactorily served the best interests of the child. Wiseman v. Wahl, 718 A.2d 844, 846 (Pa. Super. 1998). In this case, no written custody agreement or order appears in the record until the protection from abuse order. However, Mother was the primary caregiver during the marriage and after the separation in 2004. The court entered the April 25, 2006 protection from abuse order with the custody provision formalizing Mother’s primary physical custody until the custody case could be resolved.

These children appear to be thriving. Both children appear healthy. Kristoffer is an honors student and excels in an extracurricular activity. Samantha is cheerful and outgoing. When they testified, the children appeared to love both parents. They did not express any desire to have custody time shifted from Mother to Father. If anything, their testimony showed they are more psychologically and emotionally connected to their Mother.

As the children are currently doing well, this court needed a convincing rationale as to why changing primary custody would be in their best interest. Father argued that he was a better parent. Father’s main evidence to support his request for a change is the custody evaluator’s opinion. This court was extremely interested in what the evaluator had to report and studied the evaluator’s report and testimony carefully. The evaluator was extremely positive about Father, and extremely negative about Mother.

A. Regarding the Custody Evaluation

The evaluator portrayed Father as pro-active, patient, caring and responsible. The evaluator portrayed Mother as angry, manipulative, self-centered and fraudulent. If this court had seen evidence at trial to support the evaluator’s conclusions, this custody decision would have been straightforward. But that evidence was simply not there. This court is at a loss to reconcile the evaluator’s portrayals of the parents with the evidence in the record and with the evidence that came out at trial.

A trial court cannot “discount” an expert evaluation unless there is competent evidence to support doing so. King v. King, 889 A.2d 630, 632 (Pa. Super. 2005), quoting Nomland v. Nomland, 813 A.2d 850, 854 (Pa. Super. 2002).

There is a mistake in the first substantive section of the evaluator’s April 22, 2005 report. The report reads “Mi'. Fless’ affect was reserved and anxious.” There was no “Mr. Hess” in this case. Again, in the report’s “Summary and recommendations” section “Mr. Hess” is mentioned; “Mr. Hess does not appear to have an anger management problem and in fact, exhibits quite the opposite behavior.” Putting the wrong name into a “psychodiagnostic interpretation” and again into “Summary and recommendations” is more than a typographical error. It raises questions of how accurately the report was crafted to describe Mr. Kline.

Then, there are the false substantive statements in the report regarding Mr. Kline. For instance, the evaluator reported that Father “has become more active in church” and “accompanies his son to church on Sundays” and “attends a Protestant United Church of Christ.” At trial, it was revealed that while Father has dropped his son off at Sunday school, Father never enters the church. The evaluator appears to have received false information from Father that misled the evaluator. (When Father testified at trial, this court also thought he had been attending church; later testimony by others demonstrated this was not true. Father lied by omission.)

There are other problems in the evaluator’s report. The report states that Father “has never had a drug or alcohol problem ....” Yet, at trial, Father admitted he had drunk alcohol to excess as a teenager, perhaps as young as 15 years of age. Father appears to have successfully painted an overly positive picture of himself through the evaluation. A large part of the custody evaluation report discusses the protection from abuse order that protects Mother from Father. The evaluator completely embraced Father’s version of events as the truth. The evaluator concluded that Mother’s protection from abuse order was “fraudulent.” The evaluator based her conclusion that Mother is manipulative upon Mother’s seeking a fraudulent protection from abuse order. This court granted the protection from abuse order after a hearing and testimony, and this court found that Father abused Mother within the meaning of the Protection from Abuse Act.

This court can understand how the evaluator had conflict with Mother. Mother argued with the evaluator during the first evaluation and did not cooperate with the follow up evaluation. During the trial, Mother often presented as abrasive. Nonetheless, this court has serious doubts about the evidence the evaluator based her report and recommendations upon.

B. Suitability of Father To Be Primary Caretaker of the Children

Father has stable employment and lives in a suitable family home. He obviously loves his children, and they love him. But this court has some serious concerns about Father’s judgment as a parent. When this court looked beyond the good attributes claimed by Father, it was left with a series of incidents where Father exercised poor parental judgment. When his son was beaten unconscious and taken to the hospital, Father left the hospital before the results of his son’s CAT scan came back. Father claimed he stayed until the results came back, but this court found the testimony of Mother and the grandmother more credible. Father also never found out what happened to the child who injured his son because Father dropped his inquiries when the school did not comply with his requests.

Father was proud of the time when he helped his son with an overdue school project. Father learned of the report when a teacher called him. Father helped his son produce a written report on volcanoes. Father is to be commended for helping his son. On the other hand, despite the fact that Father knew the project included a second portion where a model volcano had to be built, Father did nothing to follow up and finish the project with his son. Father blamed Mother for not informing him as to the project’s exact due date. Father offered no testimony that he asked his son, the custody intermediaiy, or the teacher about the second stage of the project. His son, Kristoffer, was disappointed that his Father did not complete the project with him. This incident was minor, but demonstrated a lack of follow through on Father’s part. Likewise, Father admitted he had an internet link where he could follow his son’s karate competitions, but after using the link once, Father forgot about it.

There was testimony that Father did not apply sunscreen to his daughter, and Samantha received a sunburn at a ball game. The two parents disagree about the severity of this sunburn. This court considers this event a minor lapse in judgment on Father’s part.

More seriously, on another occasion, Samantha fell down on the concrete outside Father’s front door and was injured. She had a facial injury and was bleeding copiously. Father saw that his young daughter was seriously hurt and believed she needed to go to the hospital. He put her in his car and drove her the few minutes drive to Mother’s home and dropped her off with the suggestion that she be taken to the hospital. Father did not take his daughter to the hospital because he testified he was afraid Mother would have him arrested for exceeding his custody time prescribed in the protection from abuse order. This hospital decision is questionable but understandable. However, Father did not grab a bandage, a towel, or take the shirt off his back and try to immediately stem the young girl’s bleeding. He did not apply ice or medicine. These would be obvious responses when a young child is bleeding copiously from a wound. Father could have risked being a few minutes late, or applied a wet towel to his daughter’s wound and called the custody intermediary to explain. This accident response was simply bad judgment on his part.

These incidents cause the court to doubt Father’s ability to step successfully into the primary caretaker role. This court’s only concern is the best interest of the children. Father blames Mother for not allowing him to do more with the children, but a primary caretaker must be pro-active to safeguard the children’s safety and best interests.

By law, Father’s history of domestic violence is a custody consideration. 23 Pa. §5303(a)(3). Father was never violent against the children, but a protection from abuse order was entered against him because of abuse against Mother. This court does not have any concerns about his being safe around the children, but his past violence shows more poor judgment on his part.

In general, this court was not impressed with Father’s credibility. Some information he provided in his questionnaire was inaccurate; for instance, he listed no mental health issues, diagnoses, or treatments in his past, yet he reported to the custody evaluator that he had been prescribed antidepressant medicines for social anxiety disorder. At trial, his testimony regarding religion was misleading. His answers throughout the trial did not convince this court he was always telling the truth. For instance, based upon the other witnesses’ testimony, this court did not believe Father’s testimony that his son did not bring him report cards. Therefore, when Father defended his having written a letter confessing rape by stating that he only wrote this letter because Mother told him to, this court was not impressed. Either Father was telling the truth, and he practiced incredibly poor judgment by admitting to a serious crime that he did not commit, or he was lying and he did commit this crime.

Neither the custody evaluator’s report nor her testimony addressed the incidents that cause this court to doubt that Father’s parental judgment is currently sound enough to be the children’s primary caretaker. Therefore, this court is discounting the evaluator’s glowing recommendation of Father, and forming its own opinion based upon all the evidence in the record. This court’s impression of Father is that he loves his children and is generally a capable parent, but he has demonstrated poor judgment in key situations in the past. Father has not accepted responsibility for these mistakes. As the children’s welfare is this court’s only concern, this court is concerned that if the children spend the majority of their time with Father, Father’s poor judgment could lead to the children’s detriment.

C. Suitability of Mother To Be Primary Caretaker of the Children

As discussed above, the evaluator gave an extremely negative report of Mother. The evaluator’s opinion was largely based upon information from Father. The evaluator’s opinion regarding the protection from abuse order runs counter to this court’s abuse finding. Much of the evaluator’s negative opinion of Mother is based upon the evaluator’s opinion that the abuse was fraudulent. There is no doubt that Mother was defensive and non-cooperative with the evaluator. Mother is not perfect. At trial she presented as abrasive. Yet, she also appeared intelligent, capable, and loving of her children. The only substantiated failing of Mother is that she is not a good housekeeper. Clutter is not an ideal environment for children, but it is not a serious detriment. This court is not convinced that Mother’s poor housekeeping has led to anything more serious than clutter.

When Mother and children lived at her prior home, the home environment may have posed some dangers to the children because of holes in the walls. It appeared at trial that Mother and Father were equally responsible for these dangers. As Mother and the children no longer live at this home, the point is moot.

While Father made accusations about the grandmother’s house where Mother lives now, the evidence was not strong enough to establish an unsafe environment. This court was glad to learn that a cooling device has been placed in the attic where Kristoffer sleeps, and this court suggests that the temperature be carefully monitored to see if additional action is necessary. There is no doubt that Father’s current home is superior. But Mother has only been in grandmother’s home for a short time. Father has only been in his apartment for a short time as well. It is difficult to know what the future will bring.

As to the strengths of Mother, she regularly helps Kristoffer with his homework, is involved with school, has supported extracurricular activities for both children and generally takes good care of the children. The strongest evidence in Mother’s factor is that the children are doing well. Samantha smiled more than any previous child in this court’s history during her in camera interview. Kristoffer likes school, is achieving good grades, and he is enjoying and excelling at karate.

III. CONCLUSION

Mother has flaws. Father has flaws. Both parents entered the trial focusing on the other’s flaws. Father failed to prove that Mother has more serious parenting flaws than he does. Father failed to prove he has more parenting strengths than Mother. Indeed, based upon all the evidence, this court concludes that Mother currently has stronger parenting skills. Mother having primary custody is working best for the children.

There is a protection from abuse order protecting the Mother from Father, so they may not have direct contact. The grandmother, Mother’s mother, has performed admirably as a custody intermediary. At the custody trial, Father’s sister was added as an alternate custody intermediary. There is no evidence that one parent or the other would be better at encouraging contact with the other.

Based upon the evidence presented in this case, this court will order that Mother have primary custody. However, the children love their father, and he loves them. Despite his poor judgment on certain occasions, Father appears capable of adequately supervising the children during partial custody. The children should get to spend more time with their Father. Therefore, Father’s partial physical custody time shall be increased.

As noted above, there is a protection from abuse order between these two parties (against Father on behalf of Mother). The custody provisions in that protection from abuse order shall be amended to mirror the custody provisions in this custody order.

For all the foregoing reasons, this court enters the following order:

ORDER

And now, June 19, 2006, following a custody trial on June 2,2006 in the above matter, it is hereby ordered and decreed that:

(1) Plaintiff John E. Kline (Father) and defendant, Janet Kline (Mother) shall have joint legal custody of their minor children Kristoffer Kline, born December 7, 1994, and Samantha Kline, born November 29, 2001.

(2) The parties shall share physical custody of the children as follows:

(a) Mother shall have primary physical custody.

(b) Father shall have partial custody every Tuesday and Thursday from after work (between 5-6 p.m.) when Father shall pick up the children until 7:30 p.m. Father shall remain by his car at pick up. Mother shall remain by her door. Mother shall pick up the children at Father’s residence at 7:30 p.m. Mother shall remain at her car. Father shall remain by his door. There is to be no contact between the parents. (This “no contact” provision between parents shall remain in place as long as there is an active protection from abuse order between the parties.) The one exception to this “no contact” rule is that the parents may exchange, through the children, a custody notebook when there is important custody information to convey to the other parent. All entries in the custody notebook should directly pertain to the children and be written in a civil manner.

(c) Father shall have custody of the children every other weekend. Father’s weekend custody time shall be from 6 p.m. Friday to 6 p.m. Sunday.

(d) Summer schedule.

(i) During the public school’s summer vacation period, if Father does not have to work on Friday, then Father may pick up the children at 10 a.m. for his weekend custody period.

(ii) On his non-weekend week during the summer, Father shall have an additional overnight of custody on Thursday. Instead of returning the children on Thursday, he may retain custody until 4 p.m. Friday.

(3) The parties shall alternate custody of the children on the following holidays: New Year’s Day, Easter, Memorial Day, July 4, Labor Day, and Thanksgiving. Mother shall have custody New Year’s Day, Memorial Day and Labor Day in even-numbered years. Father shall have custody Easter, July 4, and Thanksgiving in even-numbered years. In odd years, Father shall have custody New Year’s Day, Memorial Day and Labor Day. In odd years, Mother shall have custody Easter, July 4, and Thanksgiving. Holiday custody shall be from 10 a.m. until 7:30 p.m.

(4) Mother shall have custody of the children on Mother’s Day and Father shall have custody on Father’s Day. Mother’s/Father’s Day custody shall be from 10 a.m. until 7:30 p.m.

(5) The Christmas holiday shall be shared as follows: In even-numbered years, Mother shall have custody from 5 p.m. Christmas Eve until 1 p.m. Christmas Day, and Father shall have custody from 1 p.m. Christmas Day until 8 p.m. December 26. The parents shall alternate the schedule in odd-numbered years.

(6) Each parent shall have the right to two non-consecutive weeks of physical custody of the children for vacation. In 2006, each party shall give the other party 30 days advanced written notice of the dates on which that party intends to exercise his or her vacation period. Starting in 2007, each party shall give the other party 60 days of advanced written notice of the dates on which that party intends to exercise his or her vacation period. Parties should endeavor to give as much notice as possible. Each party’s week of vacation shall coincide with that party’s weekend of custody. If one party reserves a date, and the other party does not object within 30 days, then the first party is entitled to that week of vacation. Otherwise, in the event of a conflict of dates, Mother’s choice of dates has priority in even-numbered years, and Father’s choice of dates has priority in odd-numbered years.

(7) Unless specifically addressed in this order, the parents shall share transportation equally by the receiving party providing transportation. The parent receiving custody is responsible for picking up the children. (Again, as long as a protection from abuse order is in effect, each parent releasing custody shall remain at his or her door, while the party receiving custody shall remain at his or her car.)

(8) There shall be a status conference in this case on September 12, 2006 at 10:15 a.m.

(9) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the children:

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the children at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

(3) Neither party shall alienate nor permit or attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the children out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their children.

(6) The parties shall at all times consider the children’s best interests, and act accordingly. It is in a child’s best interests to understand that he or she is trying to desperately cope with the fact of his parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the children as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the children. By this we mean that the children will not be used as spies on the other party. It is harmful to a child to be put in the role of spy.

(8) The parties should remember that they cannot teach their children proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

(B) Visitation rights should be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desires of the minor children.

(C) If a party finds him or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.

MODIFIED FINAL ORDER OF COURT

Defendant’s name: John Kline

Defendant’s date of birth: January 6, 1974

Defendant’s social security number: ***_**_****

Names and dates of birth of all protected persons, including plaintiff and minor children:

Names Dates of birth

1. Janet Kline January 25, 1975

Plaintiff or protected person(s) is/are:

[X] spouse or former spouse of defendant

[ ] parent of a common child with defendant

[X] current or former sexual or intimate partner with defendant

[ ] child of plaintiff

[ ] child of defendant

[ ] family member related by blood (consanguinity) to defendant

[ ] family member related by marriage or affinity to defendant

[ ] sibling (person who shares biological parenthood) of defendant

[X] current or former cohabitant (person who lives with) defendant.

Defendant was served in accordance with Pa.R.C.P. 1930.4 and provided notice of the time, date and location of the hearing scheduled in this matter.

Appearances by parties and/or counsel:

• Plaintiff appeared personally and is unrepresented.

• Defendant appeared personally and is represented by: E. Jay Tract, Esquire.

And now, June 19,2006, the court having jurisdiction over the parties and the subject matter, it is ordered, adjudged and decreed as follows:

This order is entered by the court with agreement of the parties in accordance with the custody order.

The modified final order dated June 15,2006 is modified such that this P.F.A. order’s custody provisions mirror the June 19, 2006 custody order. Additionally, defendant is allowed to exchange a custody log, indirectly, with plaintiff.

Plaintiff’s request for a modified final protection order is granted.

(1) Defendant shall not abuse, stalk, harass, threaten or attempt to use physical force that would reasonably be expected to cause bodily injury to plaintiff or any other protected person in any place where they might be found.

(2) Defendant is completely evicted and excluded from the residence at: 37 East Summit Street, Mohnton, PA 19540; or any other residence where plaintiff or any other person protected under this order may live. Exclusive possession of the residence is granted to plaintiff. Defendant shall have no right or privilege to enter or be present on the premises of plaintiff or any other person protected under this order.

(3) Except as provided in paragraph five of this order, defendant is prohibited from having any contact with plaintiff either directly or indirectly, or any other person protected under this order, at any location, including but not limited to any contact at plaintiff’s or other protected party’s school, business, or place of employment. Defendant is specifically ordered to stay away from the following locations for the duration of this order.

Sears Portrait Studio

Reading Area Community College

(4) Except as provided in paragraph five of this order, defendant shall not contact plaintiff, or any other person protected under this order, by telephone or by any other means, including through third persons.

(5) Custody of the following minor children:

(1) Samantha Kline

(2) Kristoffer Kline

shall be as follows:

• Primary physical custody of the minor child/ren is awarded to plaintiff.

• Defendant shall have the following partial physical custody/visitation rights: Defendant shall have partial custody as ordered in the June 19, 2006 custody order.

• Plaintiff’s mother, Michale Davis, or sister, Mabel Davis, and defendant’s sister, Kristen Kline shall act as third party intermediaries for custody purposes. Defendant may contact either Ms. Davis or Ms. Kristen Kline with regard to custody issues. Defendant may not contact plaintiff with regard to custody issues, except by indirectly exchanging a custody log.

This order supersedes any prior order relating to custody.

6. Any firearm delivered to the sheriff or transferred to a licensed firearm dealer, or a qualified third party who satisfies the procedural and substantive requirements to obtain a safekeeping permit issued under 23 Pa.C.S. §6108.3 pursuant to this order or the temporary order shall not be returned to defendant until further order of court.

7. (a) The costs of this action are imposed on defendant, as follows:

The costs of the action are payable as follows:

Defendant shall pay:

$87.50 by June 25, 2005 to the prothonotary’s office.

$44 by June 25, 2005 to the sheriff’s office.

Defendant shall pay a surcharge of $25 by June 25, 2005 to the prothonotary’s office.

Until the costs are paid in full, the party/parties responsible to pay shall immediately report any change of address in person or in writing to: Prothonotary’s Office (2nd Floor) Berks County Courthouse, 6th & Court Streets, Reading, PA 19601.

(8)A certified copy of this order shall be provided to the police department where plaintiff resides and any other agency specified hereafter:

Mohnton Police Department

(9)This order supersedes any prior protection from abuse order.

(10)All provisions of this order shall expire on: October 25, 2006.

NOTICE TO THE DEFENDANT

Violation of this order may result in your arrest on the charge of indirect criminal contempt which is punishable by a fine of up to $1,000 and/or a jail sentence of up to six months. 23 Pa.C.S. §6114. Violation may also subject you to prosecution and criminal penalties under the Pennsylvania Crimes Code. A violation of this order may result in the revocation of the safekeeping permit, which will require the immediate relinquishment of your firearms, other weapons and ammunition to the sheriff.

This order is enforceable in all 50 states, the District of Columbia, tribal lands, U.S. territories and the Commonwealth of Puerto Rico under the Violence Against Women Act, 18 U.S.C. §2265. If you travel outside of the state and intentionally violate this order, you may be subject to federal criminal proceedings under that Act. 18 U.S.C. §§2261-2262. If you possess a firearm or any ammunition while this order is in effect, you may be charged with a federal offense even if this Pennsylvania order does not expressly prohibit you from possessing firearms or ammunition. 18 U.S.C. §922(g)(8).

NOTICE TO SHERIFF, POLICE AND LAW ENFORCEMENT OFFICIALS

The police and sheriff who have jurisdiction over plaintiff’s residence or any location where a violation of this order occurs or where defendant may be located, shall enforce this order. The court shall have jurisdiction over any indirect criminal contempt proceeding, either in the county where the violation occurred or where this protective order was entered. An arrest for violation of paragraphs 1 through 7 of this order may be without warrant, based solely on probable cause, whether or not the violation is committed in the presence of the police or any sheriff. 23 Pa.C.S. §6113.

Subsequent to an arrest, and without the necessity of a warrant, the police officer or sheriff shall seize all firearms, other weapons and ammunition in defendant’s possession that were used or threatened to be used during the violation of the protection order or during prior incidents of abuse.

The Berks County Sheriff’s Office shall maintain possession of the firearms, other weapons or ammunition until further order of this court.

When defendant is placed under arrest for violation of this order, defendant shall be taken to the appropriate authority or authorities before whom defendant is to be arraigned. A “complaint for indirect criminal contempt” shall then be completed and signed by the police officer, sheriff or plaintiff. Plaintiff’s presence and signature are not required to file the complaint.

If sufficient grounds for violation of this order are alleged, defendant shall be arraigned, bond set, if appropriate and both parties given notice of the date of the hearing.


source: Caselaw Access Project

author: MOTTO, P.J.,

license: Public Domain

text:
    McAnany v. Case

      Charles W Garbett, for plaintiff.

      Templeton Smith, for defendant.
    March 9, 2007
   MOTTO, P.J.,

Before the court for disposition is defendant’s motion for summary judgment. Defendant, Youngblood Paving Inc., contends:

(1) Defendant was not a seller or engaged in the business of selling paving equipment as is required to be a proper defendant in a products liability claim.

(2) Defendant did not owe plaintiff a duty; therefore, plaintiff cannot assert a negligence claim against defendant.

(3) Defendant did not breach any express warranty because no one associated with defendant made any representations about the trade-in loader, except Southeastern was taking it “as is.”

(4) Defendant cannot be liable under sections 2-314 and 2-315 of the Uniform Commercial Code because it is not a merchant as defined in section 2-104 or a seller.

On October 11,1999, defendant traded a Case Model 1845C skid steer loader in to Southeastern Equipment Co. Inc., for a new skid steer loader.'Shortly after the trade-in, plaintiff’s employer, Cade Paving, purchased the loader off-of Southeastern. Plaintiff’s employer bought the loader “as is.” Cade Paving did not speak to any employee or representative of the defendant before buying the loader, and Rusty Cade, owner of Cade Paving, stated that he bought the loader because it was in good shape.

Plaintiff was the primary operator of the loader, and considered himself an experienced operator of the loader. On the day of the accident, plaintiff was removing excess gravel and debris from a driveway and placing it on a slope. The gravel was packed in a manner that enabled him to drive on it to get further into the pile. On his last load, he emptied the loader’s bucket and an imbalance in the weight of the loader caused it to begin sliding down the gravel pile. On his way down the slope, plaintiff was jostled around by the rough terrain, which forced his foot to extend out of the front of the machine. While trying to pull his foot back into the driver’s compartment, plaintiff may have pulled the handle, which caused the bucket to crash down, pinning his leg in between the crossbar on the arm of the machine and the frame of the machine. Plaintiff suffered severe injuries to his leg as a result of this accident.

In reviewing a motion for summary judgment this court must look at the record in a light most favorable to the opposing party, and all doubts should be resolved in favor of the nonmoving party. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 152, 723 A.2d 174, 176 (1999). The motion should only be granted in cases where the record shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. “In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Chepkevich v. Hidden Valley Resort L.P., 911 A.2d 946, 950 (Pa. Super. 2006).

In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the Pennsylvania Supreme Court adopted the theory of strict products liability. The court cited to the modern theoiy of products liability as declared in the Restatement (Second) of Torts §402A, which states:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” Id. at 427, 220 A.2d at 854 (citing Restatement (Second) of Torts §402A (1965)).

There are situations where a seller of used goods can be held liable for selling defective merchandise. Frey v. Harley Davidson Motor Company Inc., 734 A.2d 1 (Pa. Super. 1999). In Frey, the seller sold new and used motorcycles produced by the same manufacturer, and they maintained a close business relationship, making the seller strictly liable. The Pennsylvania courts have acknowledged that public policy demands that liability be fixed where it will be most effective at reducing the peril to life and health which arise from the selling of defective products. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 366, 372 A.2d 736, 738 (1977). “[T]he special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property.” Id. at 369, 372 A.2d at 739.

The policy behind strict liability is to ensure costs of injuries sustained from purchasing defective products are paid by the manufacturers who put the products on the market and not by the injured persons themselves. Cafazzo v. Central Medical Health Services Inc., 542 Pa. 526, 531, 668 A.2d 521, 524 (1995) (citing Shepard v. Alexian Brothers Hospital, 33 Cal. App. 3d 606, 610, 109 Cal. Rptr. 132, 132 (1973)). Strict liability is imposed in situations where this concern can be served. Id. at 531, 668 A.2d at 523-24 (citing Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 372, 562 A.2d 279, 281 (1989)). In Cafazzo, the court stated, “when one enters the hospital as a patient, he goes there, not to buy medicines or pills, not to purchase bandages or iodine or serum or blood, but to obtain a course of treatment in the hope of being cured of what ails him.” Id. at 534, 668 A.2d at 525. The Cafazzo court held that providing medical treatment is a service and it is distinguishable from merchandising. Id.

In the case sub judice, defendant merely traded in the used loader to purchase a new one. Although defendant has done this a number of times in the past, selling skid steer loaders or any other equipment remains outside of defendant’s business. Unlike the situation in Frey, where the seller normally sold products fashioned by the same manufacturer, defendant clearly does not deal in selling items created by one manufacturer. Although defendant has made 12 transactions either selling or trading in equipment, it does not sell equipment on a normal basis; it is in the business of paving.

Similarly, in Cafazzo, the instruments used in surgery are necessary to performing the service rendered; likewise, the loader in this case is necessary to render the service of paving. It is apparent that defendant merely trades in its equipment to get new equipment in order to render a service, not as an act of selling or distributing them as a business venture. Defendant is not engaged in the business of selling paving equipment and should not be expected to assume liability injuries sustained by equipment they previously owned.

Pennsylvania courts have recognized four elements that make up negligence, which are:

“(1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protections of others against unreasonable risks;

“(2) defendant’s failure to conform to the standard required;

“(3) a causal connection between the conduct and the resulting injury;

“(4) actual loss or damage resulting to the plaintiff.” R.W. v. Manzek, 585 Pa. 335, 346, 888 A.2d 740, 746 (2005) (citing Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000 (2003)).

The first element of negligence is the existence of a duty owed to the plaintiff, which is an obligation to conform to conduct that is based in public policy. Id. The five factor test to determine if a duty exists is:

“(1) the relationship between the parties;

“(2) the utility of the defendant’s conduct;

“(3) the nature and foreseeability of the risk in question;

“(4) the consequences of imposing the duty; and

“(5) the overall public interest in the proposed solution.” Id. at 348, 888 A.2d at 747. (citation omitted)

A duty is predicated on the relationship that exists between the parties at the relevant time. Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 685 (1983) (citing Dumanski v. City of Erie, 348 Pa. 505, 34 A.2d 508 (1943)). The duty of care is determined by examining the facts and circumstances. Porreca v. Atlantic Refining Co., 403 Pa. 171, 174, 168 A.2d 564, 566 (1961).

A negligence claim cannot be based on facts for which the law does not impose a duty upon the defendant in favor of the plaintiff. Boyce v. United States Steel Corp., 446 Pa. 226, 231, 285 A.2d 459, 461 (1971). In Boyce, the plaintiff was in the process of dumping slag when a mechanical defect caused the truck to stop dumping. The plaintiff went to inspect the defect when the truck bed fell, pinning his arm. The plaintiff brought suit for negligence alleging that the dump was not properly illuminated and the defendants did not properly patrol the dump.

The Boyce court held that the defendant did not have a duty to protect the plaintiff because the duty was undertaken by the plaintiff’s employer and not the defendants, and the circumstances of his injury were not foreseeable. Id. at 231, 285 A.2d at 461 (1971).

In the case sub judice, defendant did not undertake a duty on behalf of plaintiff. Defendant was placed in the same position as the defendant in Boyce because another party was in a better position to acquire a duty to protect plaintiffs from defective conditions. Defendant traded the loader in to purchase a new machine from Southeastern. Subsequently, Cade Paving purchased the loader “as is” from Southeastern, and did not purchase it from defendant. These events removed any type of duty owed by defendant to any subsequent purchasers. Furthermore, defendant is not expected to assume a duty to protect subsequent purchasers after it trades in equipment to purchase new equipment. Trade-in transactions are necessary in many lines of business, outside of equipment providers, such as car dealerships. In order to allow the smooth operation of such businesses, liability should not be imposed on those trading in vehicles. Clearly, defendant owed no duty to plaintiff in' this circumstance.

Plaintiff avers that defendant breached an express warranty. This allegation also lacks merit. Express warranties are covered by 13 Pa.C.S. §2312, which states:

“Express warranties by the seller are created as follows:

“(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.

“(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.

“(3) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.”

Defendant was not a party to the contract as is necessary to make an affirmation or description regarding the condition or quality of the used loader to Cade Paving. Defendant did not make any statements as to the condition of the loader to the buyer, Cade Paving, and was not a party to the contract in which the purchase of the loader was made. Additionally, defendant made no representations about condition or quality when conducting the transaction with Southeastern and traded in the loader “as is”; therefore, defendant did not create an express warranty.

Also, plaintiff asserts claims under 13 Pa.C.S. §2314 and section 2315 for breach of implied warranty of merchantability and fitness for a particular purpose.

The implied warranty of merchantability, 13 Pa.C.S. §2314, only applies “if the seller is a merchant with respect to goods of that kind.” A merchant is further defined in 13 Pa.C.S. §2104, which states: '

“Merchant. A person who:

“(1) deals in goods of the kind; or

“(2) otherwise by his occupation holds himself out as having knowledge or skill particular to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

A corporation selling assets to another corporation is not a “merchant.” Gavula v. ARA Services Inc., 756 A.2d 17 (Pa. Super. 2000). In fact, the Uniformed Commercial Code’s definition is.more narrow than the term “seller” used in Restatement (Second) of Torts §402. Id.

Implied warranty of fitness for a particular purpose is covered by 13 Pa.C.S. §2315, which states:

“Where the seller at the time of contracting has reason to know:

“(1) any particular purpose for which the goods are required; and

“(2) that the buyer is relying on the skill or judgment of the seller to select or furnish suitable goods;...

Again, the term seller “is used generically to include all suppliers of products who, because they are engaged in the business of selling or supplying a product, may be said to have ‘undertaken and assumed a special responsibility.’ ” Berkebile v. Brantley Helicopter Corporation, 462 Pa. 83, 93 n.3, 337 A.2d 893, 898 n.3 (1975). This term is applied in the same manner for implied warranties of fitness for a particular purpose and strict products liability.

It is apparent that defendant was not a “seller” of the loader, which caused the harm in this case, as discussed previously. The courts have interpreted the term merchant even more narrowly than the term seller, thus, defendant has not breached the implied warranty of merchantability or fitness for a particular purpose.

For the reasons set forth, defendant’s motion for summary judgment is granted, and the claims against defendant Youngblood Paving Inc. are dismissed.

ORDER

And now, March 9, 2007, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the motion for summary judgment of defendant Youngblood Paving Inc. is granted and the complaint of plaintiff against defendant Youngblood Paving Inc. is dismissed.

      . The Cafazzo court created a hypothetical comparison between a hospital supplying medicine or surgical equipment and a movie theatre that sells popcorn. The Cafazzo court distinguishes these two situations by stating that the primary activity of viewing a movie is unaffected by the decision to purchase popcorn; however, an implant used in surgery is necessary to that surgery. Therefore, the patient is not buying the implant, but is procuring the medical treatment or surgery itself; thus, the treatment is a service.


author: BOYLAN, J,

text:
    Czerniak v. Longshore

      Jeffrey P. Bates, Barbara S. Magen and Sheila A. Harén, for appellant.

      Nancy H. Fullam and William D. Longo, for appellee.

      July 25, 2007
   BOYLAN, J,

This litigation stems from a medical malpractice action. On April 20, 2005, plaintiff filed a complaint against defendants alleging the loss of visual acuity as a result of their negligence during and following her May 16,2003 cataract surgery. Plaintiff’s counsel drafted the complaint with the aid of an expert report prepared by Dr. John Lombardo, a licensed ophthalmologist, who believed that the case was meritorious and was willing to testify at trial. (PI. pet., Fullam aff. ¶11.) However, Plaintiff did not file the requisite certificates of merit with her complaint or within 60 days of the filing of the complaint in accordance with Pa.R.C.P. 1042.3(a). Nor did plaintiff file a motion to extend the time for filing the certificates in accordance with Pa.R.C.P. 1042.3(d). On July 25,2005, pursuant to Pa.R.C.P. 1042.6, defendant Doylestown Surgery Center filed a praecipe to enter judgment of non pros for failure to file a certificate of merit. On July 26, 2005, plaintiff filed a certificate of merit for each defendant. Plaintiff filed a petition to open/ strike the judgment of non pros on August 10,2005. Defendant Doylestown Surgery Center filed a reply to this petition on September 19,2005. On April 4,2006, plaintiff’s petition was granted.

Defendants subsequently filed motions for reconsideration on April 13, 2006, which were denied on May 11, 2006. Defendant Doylestown Surgery Center filed another motion for reconsideration on January 16,2007. These motions for reconsideration were denied on March 23, 2007. On March 27, 2007, defendant Doylestown Surgery Center’s motion for appellate certification was denied. On May 3, 2007, the Superior Court granted defendant Doylestown Surgery Center’s petition for review and directed that the matter proceed “as an appeal from the order dated April 6, 2006.”

The court properly granted plaintiff’s petition to open/ strike judgment of non pros on April 4, 2006. A petition to open a judgment of non pros is addressed to the equitable powers of the court. Almes v. Burket, 881 A.2d 861, 863-64 (Pa. Super. 2005). The decision to open a judgment of non pros “rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion or an error of law.” Harris v. Neuburger, 877 A.2d 1275, 1277 (Pa. Super. 2005), citing Tucker v. Ellwood Quality Steels Co., 802 A.2d 663, 664 (Pa. Super. 2002). After a judgment of non pros has been entered, it is the plaintiff’s burden to demonstrate that there is “good cause” to reactivate the case. Harris, 877 A.2d at 1277, citing Setty v. Knepp, 722 A.2d 1099, 1101 (Pa. Super. 1998). Pursuant to Pa.R.C.P. 3051(b), a party seeking the opening of a judgment of non pros must demonstrate that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. See Almes, 881 A.2d at 864.

Here, plaintiff demonstrated that there was good cause to reactivate the case and satisfied the three prongs of the Pa.R.C.P. 3051(b) test. Plaintiff’s counsel filed the certificate ofmeritthe day after the judgment of non pros was entered in defendant Doylestown Surgery Center’s favor and timely filed the petition to open/strike on August 10,2006. Plaintiff’s counsel provided a reasonable explanation for the delay. She believed the certificate had been filed with the complaint by another attorney within the firm according to ordinary business practices. In addition, counsel immediately filed the certificates after learning of the mistake. (PL pet., Fullam aff.) Furthermore, plaintiff established that the cause of action is meritorious. Dr. Lombardo’s affidavit details defendants’ deviations from acceptable professional standards. (PL pet., Lombardo aff.)

Plaintiff should not be punished for errors of counsel. “[E]rrors of counsel which indicate an oversight rather than a deliberate decision not to defend have been held to constitute sufficient legal justification to open a default judgment.” Almes, 881 A.2d at 865, citing Nardulli v. John Carlo Inc., 274 Pa. Super. 34, 417 A.2d 1238 (1979). Therefore, plaintiff should not suffer as a result of her counsel’s error. In Almes, the Superior Court noted that “[t]he purpose of requiring a certificate of merit is to help eliminate frivolous claims of professional negligence and, possibly, to help hasten the prosecution of the same.” Almes, 881 A.2d at 866. Here, plaintiff’s counsel believed the certificates were filed until defendants filed their praecipes for the entry of judgment of non pros. Upon learning of the error, plaintiff’s counsel immediately filed the certificates. Moreover, plaintiff’s expert believed that the claim was meritorious as early as December 2004 when he reviewed plaintiff’s medical records.

Defendant Doylestown Surgery Center contends that Womer v. Hilliker, 589 Pa. 256, 262, 908 A.2d 269, 273 (2006) is applicable here. However, Womer is distinguishable because Womer sought to open the non pros judgment on the grounds that while he did not file a certificate of merit, he had substantially complied with Pa.R.C.P. 1042.3 by serving his expert report on Hilliker in discovery.

Here, plaintiff did not argue that she did not have to file a certificate of merit or that she had substantially complied with the terms of Pa.R.C.P. 1042.3. Rather, plaintiff’s attorney explained that she had believed that a certificate of merit had been filed with the complaint.

Plaintiff’s petition was an appeal to the equitable powers of the court. Defendants were not prejudiced by the opening of the judgment of non pros because the certificates were filed days after plaintiff’s counsel discovered the problem. Plaintiff’s claim is not frivolous because Dr. Lombardo addressed how defendants breached the standard of care. (PI. pet., Lombardo aff.) Furthermore, Dr. Lombardo was willing to testify on plaintiff’s behalf well before the complaint was filed. After balancing the equities and under the totality of the circumstances, it would be unfair to deny plaintiff the opportunity to proceed with her legitimate malpractice claim.

For the foregoing reasons, plaintiff’s petition to open the judgment non pros was properly granted.

      . Pa.R.C.P. 1042.3(a) requires that a certificate of merit be filed in any action alleging that a licensed professional has deviated from an acceptable professional standard.

      . Defendants Kristine E. Longshore M.D. and Doylestown Eye Associates LLC filed a praecipe to enter judgment of non pros on July 22, 2005.

      . Defendants Kristine E. Longshore M.D. and Doylestown Eye Associates LLC filed a reply on September 16, 2005.

      . Defendants Kristine E. Longshore M.D. and Doylestown Eye Associates LLC filed a motion for reconsideration on December 22, 2006.

      . The order was dated April 4, 2006 and docketed on April 5, 2006.

      . Womer was decided in October 2006. The order granting plaintiffs petition, the basis of this appeal, was signed on April 4, 2006.


author: JOHNSON, J,

text:
    Micklus v. Ethicon Inc.

      John J. Zetlemoyer Jr, for plaintiff.

      Nancy Harris Marvel, for defendant.
    February 20, 2007
   JOHNSON, J,

INTRODUCTION

Before the court for consideration is the plaintiff’s motion to vacate the court’s order granting summary judgment. The court heard argument on this matter on January 24, 2007.

DISCUSSION

A.Strict Liability

At argument, the plaintiff withdrew the strict liability claim contained in her complaint. Therefore, the only claim remaining at issue is negligence.

B.Procedural Issue

Plaintiff Kathleen Micklus failed to respond to defendant Ethicon Inc.’s motion for summary judgment. Under Lehigh County Rule of Civil Procedure 1035.2(a)(2), if a party opposing a motion for summary judgment does not file a response, the court may treat the motion as uncontested.

Therefore, on procedural grounds alone, the order granting the defendant’s motion for summary judgment was properly granted and the plaintiff’s motion to vacate is denied.

C.Substantive Issue

The court’s grant of the motion for summary judgment on substantive grounds also was appropriate.

As the court stated in its order granting the defendant’s motion for summary judgment, “the Panacryl™ sutures performed as labeled, as the potential risks were stated in the package insert.” September 11, 2006 order, J. Brian Johnson, Judge. More specifically, under Pennsylvania law, where a medical device is available solely through a prescribing physician, the only warnings required are to the prescribing doctor and not the general public. Parkinson v. Guidant Corp., 315 F. Supp.2d 741, 748-49 (W.D. Pa. 2004); Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984). Sometimes referred to as the Learned Intermediary Doctrine, this principle of law protects a defendant from liability when it has disclosed the risks to the prescribing physician in the package insert.

In the instant matter, the package insert for the subject Panacryl™ sutures explained that the sutures essentially are absorbed over one and one-half and two and one-half years. The package insert explained further that, as an absorbable suture, Panacryl™ sutures may act as foreign bodies. No outstanding discovery or documents would have changed that fact. Indeed, the deposition of the plaintiff’s surgeon, Dr. Chowdary, already had been taken and he indicated that he understood that suture granulomas can be foreign body reactions that are a risk with any absorbable suture.

The court finds that the Learned Intermediary Doctrine applies to the facts of this case; that the warnings provided in the Panacryl™ sutures package insert were appropriate; and that the negligence claim against the defendant was properly dismissed. Therefore, for the reasons stated above, the plaintiff’s motion to vacate is denied.

ORDER

And now, February 22, 2007, upon consideration of the plaintiff’s motion to vacate the court’s order granting summary judgment filed on September 21,2006, and the defendant’s response thereto and after argument thereon, it is hereby ordered, for the reasons set forth in the accompanying memorandum opinion, that the motion is denied.


author: DOBSON, J,

text:
    Rollinson v. Clarke-DeMarco

      David A. Ristvey, for plaintiff.

      Angelo A. Papa, for defendant.
    January 22, 2007
   DOBSON, J,

The matters before this court for disposition are plaintiff’s preliminary objections to defendant’s first amended answer and counterclaim. For the reasons hereinafter set forth, plaintiff’s preliminary-objections will be sustained in part and overruled in part.

This lawsuit arises out of a breach of contract claim. The facts, taken from the pleadings, are summarized as follows: On June 1,2003, the parties entered into a written contract for plaintiff to construct a new, custom-built home for defendant. Defendant’s home was insured under a homeowners’ insurance policy issued by MetLife Auto and Home Insurance Company. MetLife provided for “replacement cost plus” to defendant for the rebuilding or construction of her new residence. According to plaintiff, MetLife valued the replacement cost at $330,767.63. Defendant attached the insurance policy as exhibit “B” in his original answer. The contract price to build the house was $328,000. The contract agreement is attached as exhibit 1 to plaintiff’s complaint.

Plaintiff avers that defendant was to pay for all the materials, labor, overruns, and a 10 percent general contractor’s fee. Defendant claims that everything was included in the contract price as a set, flat fee. Plaintiff also alleges that defendant requested changes be made to the house, and that these changes were in fact made. Defendant claims that no changes were made, or that if there were, plaintiff never warned defendant that the fixed contract price would be increased. Plaintiff avers that when he completed the job, there was still a balance owed, which defendant refused to pay because the insurance money was depleted. Plaintiff asserts that at no time did defendant complain about any defects. Defendant, on the contrary, alleges that the house was never completed, and that whatever portions were completed, were done so defectively.

On March 29, 2006, plaintiff filed preliminary objections by way of demurrer under Rule 1028(a)(4); by way of failure to conform to law or rule of court or scandalous and impertinent matter under 1028(a)(2); and by way of insufficient specificity under Rule 1028(a)(3). Plaintiff malees numerous objections under each of these headings.

This court will begin with plaintiff’s demurrers.

The standard for considering preliminary objections in the nature of a challenge to the sufficiency of the evidence is as follows:

“[T]he court accepts as true all well-pled material facts set forth in the complaint along with all reasonably deducible inferences from those facts.... Essentially, our inquiry assesses the legal sufficiency of the complaint____ The court must be able to say with certainty that upon the facts averred, the law will not permit recovery. . . . Preliminary objections will be sustained only if they are clear and free of doubt.” Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999).

Plaintiff’s first demurrer is premised on the ground that defendant’s claim for fraud is legally insufficient. Plaintiff contends that defendant has failed to plead the facts necessary to make out a cause of action for fraud.

Averments of fraud or mistake shall be averred with particularity. Pa.R.C.P. 1019(b).

“While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met. The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge.” White v. George, 66 D.&C.4th 129, 152 (Mercer Cty. 2004) (J. Dobson).

To make out a cause of action for fraud, a party must plead facts to establish the following: “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Unsupported assertions and conclusory accusations cannot create genuine issues of material fact as to the existence of fraud.” Hart v. Arnold, 884 A.2d 316, 339 n.7 (Pa. Super. 2005).

Defendant has pled six allegations of fraud. A review of each allegation shows that they are deficient.

The first allegation of fraud is that plaintiff made a representation that the contract was for a flat fee. Defendant, however, has failed to plead facts to establish that her injuries were the result of that representation.

The second allegation of fraud is that plaintiff made a representation that he was going to take a personal interest in the job. Defendant has failed, however, to plead any facts to establish that her reliance on the representation was justified or that her injuries were the result of that representation.

The third allegation of fraud is that plaintiff falsely claimed he needed advances on the payments from defendant’s insurance proceeds to complete the job. Given that defendant has alleged the insurance proceeds were to be used to pay for the job, this allegation is insufficient as a matter of law.

The fourth allegation of fraud is an allegation that the bills submitted by plaintiff were fabricated and/or fraudulently altered. While such an allegation would constitute fraud, defendant has failed to plead any facts to support this allegation.

The fifth allegation of fraud is that plaintiff enticed defendant to enter into a contract with personal and written assurances. Again, defendant has failed to plead any facts to support this allegation.

The final allegation of fraud is that plaintiff enticed defendant to pay the money up front and has fabricated a claim against her. This allegation fails to set forth any of the requirements for fraud.

Plaintiff next argues that if defendant did properly state a claim for fraud, the claim should be barred by the gist of the action doctrine. In light of its ruling on the demurrer, this court need not address this issue.

Plaintiff next contends that defendant’s request for punitive damages is legally insufficient. This contention is based on the assertion that defendant has failed to set forth a valid claim to be awarded punitive damages.

“ ‘Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others____Punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.’... Because punitive damages are intended to punish the tort-feasor for outrageous conduct and to deter him and others like him from similar conduct in the future, ‘the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.’” Hutchison ex rel. Hutchison v. Luddy, 896 A.2d 1260, 1265 (Pa. Super. 2006).

In determining whether or not punitive damages may be awarded, Pennsylvania law requires analysis of the following factors: (1) the character of the act; (2) the nature and extent of the harm; and (3) the wealth of the defendant. Reading Radio Inc. v. Fink, 833 A.2d 199, 214 (Pa. Super. 2003). One cannot recover punitive damages for an action solely sounding in breach of contract. DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 370 (Pa. Super. 2003). Furthermore, since “bad faith” is not a recognized common-law action in tort, [one] cannot assert punitive damages on this basis. Id.

While a cause of action for misrepresentation can support a claim for punitive damages, fraud alone is insufficient to justify such an award. 2 Summ. Pa. Jur. 2d Torts §16:96. Thus, a court may not award punitive damages merely because a tort has been committed. McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 144, 604 A.2d 1053, 1061 (1992). In order for punitive damages to be awarded for fraud, there must be acts of malice, vindictiveness, and a wholly wanton disregard of the rights of others. Pittsburgh Live Inc. v. Servov, 419 Pa. Super. 423, 615 A.2d 438 (1992).

Defendant has merely conclusively pled that plaintiff’s actions were outrageous. Such a conclusion is insufficient for an award of punitive damages. Hence, plaintiff’s preliminary objection is sustained and defendant has leave to amend to plead appropriate facts that would warrant an award for punitive damages under the above standard.

Plaintiff next contends that defendant’s request for attorney’s fees is legally insufficient. Plaintiff asserts that defendant did not set forth any basis upon which she is entitled to recover attorney’s fees.

Generally, litigants are responsible for their own counsel fees unless otherwise permitted by statutory authority (42 Pa.C.S. §2503), agreement of the parties, or some other recognized exception to the general rule (e.g, common fund exception, obdurate behavior exception, and private attorney general exception). Hart v. Arnold, 884 A.2d 316, 342 (Pa. Super. 2005). In relevant part, the established exceptions to this general rule are set forth by statute:

“The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

“(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.

“(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.” 42 Pa.C.S. §2503.

It is settled law that counsel fees cannot be sued for separately from the principal claim. Miller Electric Co. v. DeWeese, 589 Pa. 167, 173, 907 A.2d 1051, 1055 (2006). A claim asserted pursuant to 42 Pa.C.S. §2503 should be raised at the conclusion of the underlying action, utilizing the record and history in the underlying action as a basis to support the claim. Deve Dev. Inc. v. Gargiulo, 2006 Phila. C.C.P. Lexis 31. “To hold otherwise would raise an ancillary matter in every litigation that would serve only to complicate the issues and perhaps even keep a j ury from embarking on a rightful path.” Shevchik v. Zwergel, 8 D.&C.4th 66, 67 (1990). However, a trial court may only act on a motion for attorney fees that is filed within 30 days from final judgment. See DeWeese (supra); 42 Pa.C.S. §5505.

Defendant has not pled any facts to establish a claim for attorney’s fees. Defendant has neither shown that there was an agreement for attorney’s fees, nor has she pled any facts under any recognized exception. For those reasons, and that this claim is not properly raised at this stage of the litigation, this court sustains plaintiff’s preliminary objection and defendant has leave to raise this claim under section 2503 at the conclusion of the underlying action.

This court will next address plaintiff’s preliminary objections to what he claims are scandalous and impertinent matters under Rule 1028(a)(2). Scandalous and impertinent has been defined as “immaterial and inappropriate to the proof of the cause of action.” White, 66 D.&C.4th at 139. The right to strike impertinent matter should be exercised sparingly; unless there is prejudice, the motion should not be granted. Id. Further, where matter is impertinent but not injurious, it need not be stricken. Id.

Plaintiff first argues that defendant’s claim of “vulnerability” should be stricken on the grounds that it is impertinent matter.

Defendant’s counsel, at oral argument court, explained that he chose to use the language he did so that the court would get a fuller understanding of the whole picture that led to this lawsuit.

“Vulnerability” is not, however, pertinent to this case. Defendant has not pled any facts to establish a confidential relationship between her and plaintiff. Consequently, plaintiff’s preliminary objection is sustained.

Plaintiff next claims that the phrase “sweet talked” should be stricken. Plaintiff argues that “sweet talked” is not defined, is not sufficiently specific, nor does defendant relate what statements constitute “sweet talk.” The paragraph in question states:

“Plaintiff said he would return in two weeks to start completion of the rest of the work, which was pre-paid as stated but it did not happen. Payments should not have been paid in part because defects were later discovered, and in part because the last phase of work was never done. Plaintiff ‘sweet talked’ the last payment from defendant and agents and then bailed out.” Amended answer, ¶24. (emphasis added)

Defendant’s language is ambiguous and has no bearing in this case. Therefore, this court sustains plaintiff’s preliminary objection.

Plaintiff next claims that the phrase “need to find another unwary victim” should be stricken. The paragraph in question states:

“Plaintiff never made any inquiries regarding payment on supposed balance due, and stopped work in breach of his contractual obligation, and because he had obviously, inappropriately, squandered or otherwise dissipated, the money paid upfront, and needed to find another unwary victim, and work on a different project instead.” Amended complaint, ¶33. (emphasis added)

Defendant’s language is clearly impertinent and prejudicial. Hence, plaintiff’s preliminary objection is sustained with prejudice.

Plaintiff next argues that if the fraud claim is stricken, then everything else dealing with it should also be stricken as impertinent. Specifically, plaintiff directs this court’s attention to the statements in paragraph 78 concerning taking advantage of “defendant’s vulnerability” or the “relationship,” and the “allegedly false statements,” in paragraph 81 and elsewhere that plaintiff’s acts were malicious. Because this court will allot defendant an opportunity to re-plead her fraud claim, this court will defer action on this motion until the amended counterclaim is filed.

Plaintiff next contends that defendant’s verification does not comply with Rule 1024(b) because it should be a special verification given that the counterclaim includes actions for both breach of contract and unjust enrichment theories.

Rule 1024(b) provides:

“Ifa pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true.” Pa.R.C.P. 1024(b). (emphasis added)

This procedural rule applies, for instance, where a plaintiff sues on alternative theories of express contract and quantum meruit, as there will be inconsistent averments of fact. Standard Pennsylvania Practice §21:26. Defendant argues that the special verification does not apply to her because she has not pled any inconsistent facts, only alternative theories.

The Pennsylvania Rules of Civil Procedure permit causes of action to be pled in the alternative. Pa.R.C.P. 1020(c). Unjust enrichment is a proper alternative cause of action to a breach of contract claim. Birchwood Lakes Community Association Inc. v. Comis, 296 Pa. Super. 77, 86, 442 A.2d 304, 308 (1980).

Trial courts throughout the Commonwealth are split on this issue, and there is no appellate authority directly on point. The special type of verification of Pa.R.C.P. 1024(b) was not required where there was a mere pleading of alternative theories of action based on the same facts in York Flour Mills Inc. v. Terre Hill Silo Co., 76 York 191, 193-94 (C.C.P. 1963), but alternative pleading unavoidably resulted in inconsistent averments of fact which required a special verification in Turk v. Communication Design Inc., 1991 WL 330882, 45 (C.C.P. 1991).

The rule requires that the special verification is needed where there are inconsistent averments of fact. Pa.R.C.P. 1024(b). This court finds that defendant has not pled inconsistent averments of facts. For that reason, plaintiff’s preliminary objection is overruled.

Plaintiff next argues that defendant’s fraud pleading does not comply with Rule 1019(b), which provides that averments of fraud be averred with particularity. This court has already discussed this assertion in connection with the demurrer.

Plaintiff next argues that defendant failed to conform to rule of court by mentioning certain exhibits and other documents, but failing to attach them to the amended answer. Pennsylvania’s rule on when to attach a writing is as follows:

“When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.” Pa.R.C.P. 1019(i).

In paragraph 72 of the counterclaim, defendant states, “A copy of the contract and the worksheet done by the insurance company, with participation and agreement of both parties, which form the basis of cost and flat sum, are attached and marked exhibits A and B.” In paragraph 78(e) of the counterclaim, defendant states, “Further, it is believed, further that the bills and documentation themselves, are fraudulently altered, or otherwise fabricated to secure an improper claim.”

Defendant failed to attach any documents to the amended answer. However, the contract and worksheet were attached as exhibits “A” and “B” to defendant’s original answer. Because exhibits “A” and “B” are part of the record, plaintiff’s preliminary objection is overruled with respect to these exhibits, and they are deemed attached to the amended answer. As for the other bills and documents defendant alleges were fraudulently altered, plaintiff’s preliminary objection is sustained and defendant shall attach them to any amended answer and/ or counterclaim.

Plaintiff’s final preliminary objection is that the complaint is insufficiently specific under Rule 1028(a)(3). The pertinent question under Rule 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense,” or “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006).

Plaintiff argues that he does not know what certain phrases mean. More specifically, plaintiff complains about the phrase in paragraph 78(d), that plaintiff used the money for “other improper covetous activities.” This language is clearly ambiguous and, therefore, stricken.

Plaintiff next complains about defendant’s allegations of false statements made to the insurance employee. Plaintiff argues that defendant failed to define how false statements to an insurance employee are even relevant, what false statements were made, and the identity of the insurance employee. This court cannot speculate as to what allegations defendant claims were made. Hence, this court sustains plaintiff’s preliminary objection and defendant has leave to amend to state precisely what pertinent statements were misrepresented.

Plaintiff next argues that the phrase “otherwise fabricated” in paragraph 78(e) is not sufficient. Paragraph 78(e) reads: “Further, it is believed, further that the bills and documentation themselves, are fraudulently altered, or otherwise fabricated to secure an improper claim.” It appears that defendant is claiming the bills were “fudged” so as to make it seem like defendant owes more than was bargained for between the parties. This court finds that the phrase “otherwise” is inapt and must be stricken. Defendant will be allowed to plead that the bills were fraudulently altered or fabricated, but defendant must eliminate the word “otherwise.”

Plaintiff next argues that the word “enticed” in paragraph 78(g) is insufficiently specific. Plaintiff argues this because he does not know how he supposedly “enticed” defendant into paying him the money. The pertinent paragraph reads as follows:

“Plaintiff enticed the defendants to pay him up front, which enabled him to secure a loan from them, squander the money, and then fabricate some kind of claim in which he could fraudulently turn the tables on the situation. This was another act of fraud perpetrated upon the defendants, which was possible because of the reasonable reliance and trust placed in him.” Defendant’s counterclaim, t78(g). (emphasis added)

After reading the pleading as a whole, defendant has alleged she was persuaded into giving plaintiff the money because she was told it was needed up front to do the job. The court does not find the use of the word “enticed” in this context improper.

Plaintiff next argues that he does not know what defendant is talking about when she refers to a lien and the refinancing of some loan in paragraph 69. Paragraph 69 provides:

“Defendant and defendant’s husband could not refinance the loan and apply for more money to properly cure house and prevent further damages and to finish basement so that defendant could have a proper graduation party for her son because plaintiff applied a 79.767.14 lien and now damage from chimney water is estimated at $5,100 to date.” Defendant’s new matter, §69(ii). (emphasis added)

Defendant is alleging she tried to mitigate her damages, but was unsuccessful because plaintiff had a lien on the property. This allegation is specific enough to put plaintiff on notice about this defense. As a result, plaintiff’s preliminary objection is overruled.

Plaintiff next argues that he does not understand the phrase, “The damage claims are alternative, and or not meant to be duplicative,” in paragraph 82. While inartful, this allegation is not improper.

And hence this order:

ORDER

And now, January 22, 2007, it is hereby ordered that plaintiff’s preliminary objections are sustained in part and overruled in part.

Plaintiff’s preliminary objection in the nature of demurrer based upon the elements of fraud is sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of demurrer based upon the gist of the action is moot.

It is further ordered that plaintiff’s preliminary objection in the nature of demurrer based upon punitive damages is sustained.

It is further ordered that plaintiff’s preliminary objection in the nature of demurrer based upon attorney’s fees is sustained with leave to raise the issue at the conclusion of the underlying matter.

It is further ordered that plaintiff’s preliminary objection in the nature of demurrer based upon the vulnerability claim is sustained.

It is further ordered that plaintiff’s preliminary objection in the nature of failure to conform to law or rule of court based upon verification Rule 1024(b) is overruled.

It is further ordered that plaintiff’s preliminary objection in the nature of failure to conform to law or rule of court based upon pleading fraud with particularity under Rule 1019(b) is sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of failure to conform to law or rule of court based upon exhibits “A” and “B” that were not attached is overruled, and said exhibits are deemed attached.

It is further ordered that plaintiff’s preliminary objection in the nature of failure to conform to law or rule of court based upon the other bills and documents are sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of scandalous or impertinent matter based upon the phrase “sweet talked” is sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of scandalous or impertinent matter based upon the phrase “needed to find another unwary victim” is sustained with prejudice.

It is further ordered that plaintiff’s preliminary objection in the nature of scandalous or impertinent matter based upon the proposition that if the fraud count is stricken, then every assertion concerning it should also be stricken is sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of insufficient specificity based upon the phrase “other improper covetous activities” is sustained.

It is further ordered that plaintiff’s preliminary objection in the nature of insufficient specificity based upon the alleged false statements made to the insurance employee is sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of insufficient specificity based upon the phrase “otherwise fabricated” is sustained with leave to amend.

It is further ordered that plaintiff’s preliminary objection in the nature of insufficient specificity based upon the phrase “enticed” is overruled.

It is further ordered that plaintiff’s preliminary objection in the nature of insufficient specificity based upon an allegation defendant was unable to refinance a loan because of a lien is overruled.

It is further ordered that plaintiff’s preliminary objection in the nature of insufficient specificity based upon the phrase “damage claims are alternative and/or not meant to be duplicative” is overruled.

      . Defendant’s former house was destroyed by a fire.

      . The replacement cost was initially valued at approximately $58,000 less, but was later increased to this amount because the insurance adjuster forgot to include the roof and shingles in their plans. According to defendant, the total replacement cost allotted by MetLife was $331,267.63.

      . This contract is not signed by either party. Plaintiff avers he was unable to locate the original, but believes defendant has either the original or a copy. Defendant attached a copy of a signed contract as exhibit A in his original answer.

      . Plaintiff also makes preliminary objections to defendant’s claim for punitive damages by ways of 1028(a)(2) and 1028(a)(3). This court will address this issue now, and forego addressing it later so as not to be redundant in the latter part of the opinion.

      . Plaintiff also objects to defendant’s claim for attorney’s fees under 1028(a)(2). This court will address this issue solely in this part of the opinion.

      . Plaintiff also objects to the phrase “sweet talk” under Rule 1028(a)(3) for insufficient specificity For the sake of not being redundant, this court will quickly dispose of this issue here.

      . These are the six acts of fraud defendant avers that plaintiff perpetrated; they are set forth on pages 471 and 472 of this opinion.


author: LASH, J.,

text:
    Shucker v. First Energy Corporation

      Jerry R. Richwine, for defendants First Energy Corp. and Metropolitan Edison Co.

      Rick Long, for additional defendant Patrick Konopelski.
    Plaintiffs Shucker and defendant Coca Cola did not participate.
    August 28, 2006
   LASH, J.,

The matter before this court is the motion of defendants, First Energy Corporation and Metropolitan Edison Company (utility defendants), for summary judgment against additional defendants, Patrick Konopelski, t/d/b/a Professional Culinary Services & Konopelski Katering Ltd. t/d/b/a Professional Culinary Services (Konopelski defendants). Specifically, utility defendants seek reimbursement for attorney’s fees and costs incurred in the defense of the within action filed against them by plaintiffs, Paulette Shucker and Gerald Shucker. The basis for utility defendants ’ claim is an indemnification clause contained within a contract entered into between utility defendants and Konopelski defendants, governing Konopelski defendants’ operation of a full service cafeteria at two locations owned by utility defendants. For reasons set forth herein, this court grants the motion and enters summary judgment.

Plaintiffs filed the within action against utility defendants and defendant, Coca Cola Enterprises Inc., on or about August 2, 2004, alleging that plaintiff, Paulette Shucker, an employee of Konopelski Katering, sustained injuries when she fell after her foot caught on a refrigeration cord located in utility defendants’ cafeteria on Centre Avenue in Reading, Berks County, Pennsylvania. According to the complaint, the cord was attached to a refrigeration unit owned by defendant, Coca Cola Enterprises Inc., and was plugged into the wall and dangling four to six inches above the ground and across a walkway behind a countertop. Plaintiffs claimed that this condition was dangerous and that utility defendants were aware of this dangerous condition but took no action.

Konopelski defendants were joined through court order on January 21, 2005, upon petition of utility defendants. Subsequently, on February 24,2006, plaintiffs settled their claims against all parties. Utility defendants made no contribution to the settlement. Meanwhile, utility defendants’ joinder complaint against Konopelski defendants remained pending.

On or about June 12,2006, utility defendants filed the within motion for summary judgment on its joinder complaint. Utility defendants claim they are entitled as a matter of law to reimbursement of attorney’s fees and costs pursuant to a duty to defend contained within an indemnification clause in the contract entered into between them through GPU Service Inc., as agent, and Konopelski defendants.

Konopelski defendants do not dispute that they did not provide a defense to utility defendants. The indemnification clause provides, in pertinent part:

“Contractor assumes the risk of, and shall indemnify and save harmless purchaser ... against, all claims and actions, losses, costs, fines, penalties and damages to property ... and/or injury ... to persons ... arising out of, resulting from, or based upon, the acts or omissions of contractor or anyone acting under its direction or control or in its behalf and all expenses (including legal and investigation fees) incidental thereto.

“The foregoing indemnity shall apply to all claims against purchaser, whether or not purchaser was or was alleged to be negligent, including claims for (i) personal injuries ... by any person made or threatened by, in the name, or on behalf of, contractor’s employees based on purchaser’s negligence, including claims for personal injuries arising in the course of their employment, contractor hereby waiving any defense it might otherwise have under applicable worker’s compensation laws ... but contractor’s indemnity shall not apply to any liability determined by a court of competent jurisdiction to be based upon purchaser’s sole negligence.

“Contractor . . . shall defend purchaser against, all claims, demands, suits and proceedings for which contractor has, or might have, indemnification responsibility hereunder. Purchaser may, at its sole discretion, participate in such defense to the extent it deems necessary to protect its own interest, and contractor shall cooperate with purchaser in any such defense.

In opposing the motion, Konopelski defendants cite the first two paragraphs of the indemnification clause in support of their claim that summary judgment is not appropriate due to the presence of exclusion language which removes Konopelski defendants’ duty to indemnify if the utility defendants are found to be solely negligent by a court of competent jurisdiction. Since no judicial determination has been made, the motion must be denied.

Konopelski defendants’ reading of the first two paragraphs is correct. The first paragraph permits recovery of legal and investigation fees as part of Konopelski defendants’ contractual duty to indemnify. Paragraph 2 clearly states that the indemnity duty arising from paragraph 1 “shall not apply to any liability determined by a court of competent jurisdiction to be based upon [utility defendants’] sole negligence.” As there has been no judicial determination, plaintiffs’ claim having been resolved by settlement, and it further appearing that utility defendants could have been found to be solely negligent, consistent within the parameters set by the averments in plaintiffs’ complaint, utility defendants cannot rely on the first two paragraphs of the indemnification clause to obtain summary judgment.

In their analysis, however, Konopelski defendants do not address the third paragraph of the indemnification clause. This paragraph imposes a separately stated duty upon Konopelski defendants to defend utility defendants against all claims, demands, suits and proceedings for which Konopelski defendants have, or might have, indemnification responsibility hereunder. By its separate construction, it is clear that this clause is independent of the indemnity provisions of paragraphs 1 and 2 and does not require judicial findings.

This is also consistent with the law, which recognizes that an indemnitor’s duty to defend is a distinct obligation, different from and broader than its duty to indemnify. Old Guard Insurance Company v. Sherman, 866 A.2d 412, 416 (Pa. Super. 2004).

We also note that Konopelski defendants’ duty to defend commenced at the inception of the litigation, when the complaint was filed against utility defendants. An indemnitor becomes obligated to defend when factual allegations contained within a complaint on its face comprehend an injury which is actually or potentially within the scope of the contract. Old Guard, 866 A.2d at 416-17. Thus, the indemnitor’s duty is not conditioned upon a determination on the merits. Further, even if the allegations in the complaint turn out to be groundless, false or fraudulent, this does not affect the indemnitor’s duty. See Tuscarora Wayne Mutual Insurance Company v. Kadlubosky, 889 A.2d 557, 561 (Pa. Super. 2005).

In essence, this indemnity clause as a whole is structured such that an indemnitee seeking payment or recoupment of attorney’s fees could seek relief under the indemnification provisions of paragraphs 1 and 2, so long as the exclusion clause is found to be inapplicable through judicial process, or alternatively, under paragraph 3, through requiring defense of the action by the indemnitor.

We find that Konopelski defendants had a duty to defend. As more specifically outlined in utility defendants’ joinder complaint, the allegations contained in plaintiffs’ complaint were sufficient that Konopelski defendants could have indemnification responsibility. Upon receiving notice of plaintiffs’ complaint, Konopelski defendants’ defense duties were triggered. Their failure to defend was a breach of the third paragraph of the indemnification clause. The subsequent settlement of plaintiffs’ claim did not absolve Konopelski defendants of this duty. The fact that utility defendants did not contribute to plaintiffs’ settlement and, therefore, did not have an indemnification claim under paragraphs 1 and 2 of the indemnification agreement does not change this result.

Accordingly, we enter the following order:

ORDER

And now, August 28,2006, upon consideration of the motion of defendants, First Energy Corporation and Metropolitan Edison Company, for summary judgment on their joinder complaint against additional defendants, Patrick Konopelski, t/d/b/a Professional Culinary Services & Konopelski Katering Ltd., t/d/b/a Professional Culinary Services, response thereto, briefs filed by the parties and after argument held, said motion is granted. Judgment is entered in favor of defendants, First Energy Corporation and Metropolitan Edison Company, and against additional defendants, Patrick Konopelski, t/d/b/a Professional Culinary Services & Konopelski Katering Ltd., t/d/b/a Professional Culinary Services, on the issue of liability. The damages will be set forth by separate order, either by agreement, or after hearing held.