author: SIBUM, J,

text:
    Commonwealth v. Pierre

      C.P. of Monroe County,
    no. 1235 Criminal 2010.

      Jeremy Bolles, assistant district attorney, for Commonwealth.

      Frederick Cutaio, assistant public defender, for defendant.
    October 12, 2010
   SIBUM, J,

On June 2, 2010, defendant Jeffrey Pierre was arrested for drug possession following aroutine traffic stop. Defendant has been charged with one count each of the following: manufacture, deliver, possess with intent to deliver a controlled substance, 3 5 P. S. §780-113(a)(30); possession of a controlled substance, 35 P.S. §780-113(a)(16); possession of drug paraphernalia, 35 P.S. §780-113(a)(32); maximum speed limits, 75 Pa.C.S.A. §3362(a)(l.l); and turning movements and required signals, 75 Pa.C.S.A. §3334(a). A preliminary hearing was held on June 11, 2010 and the charges were bound over for court. The Commonwealth filed a criminal information on July 6, 2010 charging the defendant with the above stated crimes. Defendant appeared for formal arraignment on July 6, 2010 and entered a plea of not guilty. Defendant filed a motion for habeas corpus relief and a motion to suppress on August 25,2010, and a hearing was held on September 20, 2010. We are now prepared to decide this matter.

The relevant facts as presented at the omnibus hearing are as follows. On June 2, 2010 at 2:30 a.m., Officer Donald Scarfo of the Pocono Mountain Regional Police Department was traveling southbound on Interstate 380 in an unmarked patrol vehicle. Officer Scarfo testified that he was near mile marker 8.8 when he was passed by a White Ford Edge traveling at an excessive rate of speed. The Officer followed behind the vehicle and paced it at speeds in excess of 100 mph despite the posted speed limit of 65 mph. The driver also changed lanes three times without activating the required signals. Officer Scarfo activated his patrol lights and siren to initiate a traffic stop of the vehicle. The vehicle failed to yield for approximately one mile. The officer effectuated a traffic stop of the vehicle near mile marker 5.

Upon approaching the passenger side of the vehicle, Officer Scarfo observed two male occupants. The driver of the vehicle was identified from his driver’s license as Jeffrey Pierre (“defendant”). The passenger also provided the officer with his identification, as well as a rental agreement for the vehicle in his wife’s name. The passenger was identified as William Freeman (“Freeman”). Upon initial contact, Officer Scarfo asked the occupants where they were coming from. Defendant informed the Officer they were coming from “Blakely” and headed to New York City. Freeman informed the Officer they were coming from his home in “Blakeslee”. Officer Scarfo confronted the occupants about the inconsistencies in their stories and advised defendant that they were coming from the wrong direction if they had been in Blakely. Defendant advised the officer that they had taken a wrong turn and ended up in the Scranton/Wilkes-Barre Area. While speaking with both parties, Officer Scarfo detected an odor of alcohol and observed red, glossy eyes on both occupants. The officer then returned to his patrol vehicle, and shortly thereafter Officers Posluszny and Strenchock arrived on scene.

Upon arriving, Officer Posluszny made contact with the occupants. He then advised Officer Scarfo that he had arrested Freeman in the past for possession with intent to deliver drugs. Officer Scarfo requested Monroe County Control Center to check criminal histories on both individuals. Control center informed Officer Scarfo that both defendant and Freeman had prior arrests for drug offenses.

Officer Scarfo requested defendant step out of the vehicle and take a breath test because of the odor of alcohol detected. Defendant complied. Defendant showed a positive result for alcohol but was within the legal limit. Defendant was then issued a citation for speed. Officer Scarfo also requested that defendant speak with him. He advised defendant that he was aware of defendant’s and Freeman’s criminal history and asked for consent to search the vehicle. Defendant agreed but informed Officer Scarfo that he would have to ask Freeman for permission because Freeman’s wife had rented the vehicle. Freeman was asked to step out of the car, and he complied. Officer Scarfo advised Freeman that he was aware of Freeman’s criminal history and that he wished to search the vehicle. Freeman agreed and completed a form consenting to the search.

Prior to searching the vehicle, Officer Scarfo asked defendant if he could search defendant’s person, including the contents of his pockets. Defendant agreed. As he searched defendant, Officer Scarfo observed a red rag in the defendant’s back left pocket. Upon removing the rag, a small plastic bag containing an off-white rock-like substance which appeared to be crack cocaine came out of defendant’s pant pocket. Officer Scarfo performed a field test of the substance which results were positive for crack cocaine. Defendant was placed in handcuffs and further searched. Officer Scarfo recovered from defendant a large amount of money folded in half and secured by a hair tie. He also located a smaller amount of money in a separate pocket. The money and drugs were secured, and defendant was placed in the rear of the patrol car to be taken to police headquarters.

Freeman was then advised of his Miranda warnings. Freeman informed the officer that he understood his rights. When questioned on how well he knew defendant, Freeman stated that he was defendant’s friend and knows him well. Officer Scarfo then questioned Freeman about defendant’s drug use. Freeman stated that the defendant uses “a little marijuana” but does not use crack. Freeman indicated that he would not associate with defendant if defendant were a crack user.

Defendant was transported to police headquarters where Officer Scarfo further examined the crack cocaine and items seized from defendant. The cocaine was comprised of three rocks, each packaged in a separate dime bag. The three dime bags were in a small zip lock bag, and that bag was in a bag of the same size. The cash located on defendant that was secured by a hair tie amounted to $845.00, made up of mostly twenties, but also contained tens, fives and ones. The officer also located $88.00 in a separate pocket which was comprised of smaller denominations. Officer Scarfo testified that from his training and experience as a police officer, he identified the bags of crack and the money to be consistent with street level drug sales. A complete search of the defendant was conducted at police headquarters. The search did not reveal any other indicia of crack cocaine use by defendant such as a crack pipe or burnt fingertips.

Defendant was read his Miranda warnings and signed a consent form stating he understood his rights. Defendant verbally waived his rights and agreed to speak with the officer. Defendant stated that he did not know how the crack got into his pants but admitted that the pants were his. Defendant then admitted that the crack cocaine was his, but he did not know it was in his jeans. Defendant stated that he uses crack every day. The officer told defendant that due to his physical shape he doubted that defendant used crack. The defendant replied “that’s my story for the Judge.” Defendant also stated that he had served two years in jail. When asked why he was “messing with crack”, defendant replied that times are hard and he has difficulty paying his bills with his income from his construction job. Officer Scarfo then requested defendant provide a written statement but defendant refused.

DISCUSSION

Motion for Habeas Corpus Relief

Defendant asserts that the discovery provided by the Commonwealth does not support aprima facie case against him for the above referenced charges. In response, the Commonwealth contends that a prima facie case exists as to each of the material elements of the crimes charged and establishes sufficient probable cause to warrant the belief that the defendant committed the offenses. We agree with the Commonwealth and will address the charges in turn.

When a criminal defendant seeks to challenge the sufficiency of evidence presented against him, he may do so by filing a writ of habeas corpus with the court of common pleas. Commonwealth v. Carmody, 799 A.2d 143, 146 (Pa. Super. 2002). In such instances, the habeas court acts in the capacity of a reviewing court to assess whether sufficient evidence exists to require the defendant to be brought to trial. Id. at 146-47.

“At the pre-trial stage of a criminal prosecution, it is not necessary for the Commonwealth to prove the defendant’s guilt beyond a reasonable doubt.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003). Rather, the Commonwealth establishes a prima facie case when it produces evidence of “each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Id. A prima facie case can be established by evidence that, if accepted as true, would warrant the trial judge to allow the case to go to the jury. Commonwealth v. Martin, 727 A.2d 1136,1142 (Pa. Super. 1999), allocatur denied, 745 A.2d 1220 (1999). In deciding if a prima facie case has been made, any inferences reasonably drawn from the evidence in the record that would support a guilty verdict are to be given effect and “the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177,1180 (Pa. Super. 2001). The weight and credibility of the evidence are not factors at this pre-trial stage. Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983).

1. Possessory offenses (1) Possess with intent to deliver; (2) Possession of a controlled substance; and (3) Possession of drug paraphernalia

The defendant is charged with three individual counts of possession pursuant to the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §780-113(a), subsections (16), (30), and(32), for possessing crack cocaine, possessing drug paraphernalia and possessing crack cocaine with the intent to deliver, respectively. This statute provides as follows:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(16)Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
(30)Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
(32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.

35 P.S. §780-113(a)(16), (30), (32).

In drug possession cases, the Commonwealth has the burden of proving that a defendant had knowing or intentional possession of a controlled substance and, if the substance is not found on the defendant’s person, they must satisfy that burden by proof of constructive possession. Commonwealth v. Valette, 613 A.2d 548, 549-50 (Pa. 1992). Location of contraband in an area usually accessible only to the defendant may lead to the inference that the defendant placed it there or knew of its presence if others did so. Commonwealth v. Thompson, 428 A.2d 223, 224 (Pa. Super. 1981).

Here, the crack cocaine was located in defendant’s back pocket of the pants he was wearing at the time of the incident. Defendant admitted to Officer Scarfo that the pants belonged to him although he denied knowing how the crack got into his pants. He then conceded that the crack was his but did not know it was in his jeans. Viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, the Commonwealth has established a prima facie case for each of the possessory offenses with which defendant is charged.

As to the count for “possession of a controlled substance” under subsection (a)(16), the Commonwealth must only establish that the defendant knowingly or intentionally possessed the cocaine. This burden has been met. The contraband was located on defendant’s person in an area that is normally only accessible to defendant. Further, defendant acknowledged ownership of the cocaine found on his body. We believe the Commonwealth has met this preliminary burden of establishing knowledge or intent to possess a controlled substance.

As to the count for “possession with intent to deliver” under subsection (a)(30); the Commonwealth must also establish that defendant possessed the cocaine with the intent to deliver the drugs. Intent to deliver can be inferred from an examination of all of the facts and circumstances surrounding the possession of the substance. Commonwealth v. Torres, 617 A.2d 812, 814 (Pa. Super. 1992); Commonwealth v. Perez, 931 A.2d 703, 708 (Pa. Super. 2007). “Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant.” Perez, 931 A.2d at 708. Thus, possession with intent to deliver can be inferred from the surrounding circumstances such as lack of paraphernalia for consumption. Torres, 611 A.2d at 814.

In this case, Officer Scarfo testified to seizing three dime bags each containing a rock of crack cocaine. The three bags were placed in a small zip lock bag and that bag was located in a bag of the same size. A large amount of cash totaling $845 was folded and secured by a hair tie and was located on defendant’s person. A separate fold of bills totaling $88 was kept apart from the large amount of cash and was located in a different pocket on defendant’s person. Officer Scarfo testified that from his training and experience as a police officer, the bags of crack and the money were consistent with street level drug sales. Furthermore, no paraphernalia used for ingesting crack was located on defendant, nor were his fingers burnt which is an indicator of one who uses crack cocaine.

Moreover, defendant stated to the officer during his questioning at police headquarters that he used crack every day. The officer remarked that he doubted defendant’s use of crack because of his physical shape. When questioned as to the truth of his statement, defendant replied “that’s my story for the Judge.” He further stated that he was involved with crack because times are hard and he has a hard time paying the bills.

Viewing the totality of the circumstances, sufficient evidence exists to establish that defendant was not a user of crack cocaine but possessed the cocaine with the intent to deliver it. The Commonwealth has satisfied its burden of establishing a prima facie case.

As to the count for “possession of drug paraphernalia” under subsection (a)(32), the Commonwealth must show that defendant possessed with the intent to use drug paraphernalia. Drug paraphernalia is defined as equipment, products or materials of any kind which are used, intended for use or designed for use in packaging a controlled substance in violation of the controlled substance, drug, device and cosmetic act. 35 P.S. §780-102. It includes capsules, balloons, envelops and other containers used, intended for use or designed for use in packaging small quantities of controlled substances. 35 P.S. §780-102(9).

Here, three rocks of crack cocaine were individually packaged in three separate dime bag sized plastic bags. The three bags were located in a small zip lock bag and that bag was secured in a bag of the same size. Defendant’s use of the dime sized bags to individually store the three rocks of crack as well as the zip lock bags to contain the three smaller bags is sufficient evidence to show that defendant had the intent to use the plastic bags to package cocaine. The Commonwealth has established its burden.

2. Maximum speed limits

The defendant is also charged with one count of violating the Pennsylvania Vehicle Code as to Maximum Speed Limits pursuant to 75 Pa.C.S.A. §3362. This section provides:

(a) General Rule. - Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this section or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:
(1.1) 65 miles per hour for all vehicles on freeways where the department has posted a 65-miles-per-hour speed limit.

75 Pa.C.S.A. §3362(a)(l.l). A freeway is defined as a “limited access highway to which the only means of ingress and egress is by interchange ramps.” 75 Pa.C.S.A. §102.

In this case, Officer Scarfo testified that while traveling on interstate 380 he was passed by defendant’s vehicle at a high rate of speed. The officer followed behind the vehicle and began to pace it at speeds in excess of one hundred miles per hour. Interstate 380 is a freeway as defined in section 3362 with posted speed limits of 65 miles per hour. Therefore, defendant’s exceeding the posted speed limit by more than 35 miles per hour is a violation of this statute. The Commonwealth has satisfied its burden of establishing a prima facie case.

3. Turning movements and required signals

Lastly, defendant has been charged with violating the Pennsylvania vehicle code as to turning movements and required signals, pursuant to 75 Pa.C.S.A. §3334(a). This section provides:

(a) General Rule. — Upon a roadway no person shall turn a vehicle or move from one traffic lane to another or enter the traffic stream from a parked position unless and until the movement can be made with reasonable safety nor without giving an appropriate signal in the manner provided in this section.

75 Pa.C.S.A. §3334(a). Officer Scarfo testified that while he was traveling behind defendant’s car on interstate 380, he observed the driver of the vehicle change lanes three times without first activating the required signals. In light of these facts, we find the Commonwealth has met its burden.

Motion to Suppress

Defendant argues that he was unreasonably searched in violation of his Pennsylvania and U.S. constitutional rights. Defendant avers that probable cause did not exist to justify the officer’s request of defendant to consent to the search of his person. Specifically, defendant argues that knowledge of the defendant’s criminal history was not enough cause to request a search of the defendant and that the search of defendant was, therefore, unconstitutional. We disagree. In addressing this issue, we note that defendant does not contend the initial stop of the vehicle to be improper nor are we aware from defendant’s brief motion whether he takes issue with the officer’s continued detention of the defendant. As such, we find it necessary and are compelled to briefly address the issue of whether the detention was lawful prior to our discussion of the officer’s request for consent.

In Pennsylvania, courts recognize.three categories of police officer and citizen interaction:

The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an “investigative detention”, must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or custodial detention must be supported by probable cause. An investigative detention constitutes a seizure of the person and must be supported by reasonable suspicion that those detained are engaged in criminal activity.

Commonwealth v. Carter, 779 A.2d 591, 593 (Pa. Super. 2001).

“To determine if any interaction rises to the level of an investigative detention...the court must examine all the circumstances and determine whether police action would have made a reasonable person believe he was not free to go and was subject to the officer’s orders.” Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003). Unlike a mere encounter, an investigative detention constitutes a seizure of a person and thus triggers the protections of article I, Section 8 of the Pennsylvania Constitution. Id. Therefore, to initiate an investigative detention, the officer must have at least reasonable suspicion that criminal activity is afoot. Id:, Commonwealth v. Jones, 874 A.2d 108,116 (Pa. Super. 2005).

In order to determine whether a police officer had reasonable suspicion, the totality of the circumstances must be considered. Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. Super. 2004) The court must give due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Id. The totality of the circumstances test does not limit our inquiry to only considering facts that clearly indicate criminal conduct. Id. Rather, even a combination of innocent facts, when taken together, may warrant further investigation of the individual by the police officer. Id.

Initially, Officer Scarfo personally witnessed defendant speeding in excess of 100 mph as well as changing lanes without signaling in violation of 75 Pa.C.S.A. §§3362 and 3334. These motor vehicle violations, by themselves, gave the officer reasonable suspicion to initiate a traffic stop. However, the need for investigation of defendant did not stop there. Often during trafile stops, officers “observe facts that lead them to a reasonable suspicion that some alternate criminal activity is afoot, and therefore, the officers prolong their encounter with the driver although the purpose of the initial traffic stop has been achieved.” Commonwealth v. Dales, 820 A.2d 807, 812 (Pa. Super. 2003). The Pennsylvania Superior Court has held that “once the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave,” the further detention of an individual is characterized as “an investigative detention or arrest.” Id. at 813. Thus, to prolong a stop beyond the point at which the purpose of the traffic stop has been achieved, an officer must possess reasonable suspicion.

In this case, after speaking with and observing defendant and Freeman, Officer Scarfo’s initial reason for executing the traffic stop had been achieved and the officer’s observations gave rise to further reasonable suspicion that defendant was engaged in illegal activity. Upon approaching defendants vehicle and speaking with both defendant and Freeman, Officer Scarfo detected an odor of alcohol emanating from the vehicle as well as the occupants’ red, glossy eyes. When questioned about where they were coming from, defendant and Freeman provided inconsistent stories which gave Officer Scarfo some concerns about their activities. The officer was advised that neither party was listed on the rental agreement for the vehicle. He also learned that both defendant and Freeman had prior arrests for drug offenses. Coupled with the physical signs of intoxication, as well as the conflicting stories and rental agreement, defendant’s prior criminal history created an additional reason to further prolong the stop.

While one of these observations alone may not constitute reasonable suspicion, we find that the combination of factors, coupled with inferences Officer Scarfo could draw from them based on his training and experience, meets the evidentiary burden required. Accordingly, we find that based on the totality of the circumstances, Officer Scarfo possessed reasonable suspicion to extend defendant’s detention beyond the completion of the traffic stop. Furthermore, we find that the totality of the circumstances including, but not limited to, the knowledge of defendant’s background opened the door and gave rise to the officer’s continued reasonable suspicion to ask for consent to search defendant’s person.

Having determined that Officer Scarfo had sufficient facts at his disposal to support a reasonable suspicion that defendant was engaged in illegal activity, we must proceed to analyze whether defendant voluntarily consented to the search of the vehicle. See Commonwealth v. Reid, 811 A.2d 530, 545 (Pa. 2002) (“if the court finds that...a lawful interaction preceded an alleged consent, the court must then determine whether the prosecution has adequately proven that the consent was made voluntarily and was the not the product of duress or coercion.”).

The Pennsylvania Constitution guarantees that the “people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures.” Pa. Const. Art. I, §8. “A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000). Voluntarily given consent is one such exception. Id. “Generally, there is no threshold of suspicion needed for a request to search; consent to a search obviates the need for any level of suspicion on the part of the police.” Commonwealth v. Shelly, 703 A.2d 499, 502 (Pa. Super. 1996). If an individual “voluntarily gave permission for the search, then no analysis of the information known to the [police] is necessary.” Id.

Therefore, the only remaining issue to be analyzed is the validity of the-consent. “In order for consent to be valid, it must be unequivocal, specific, and voluntary.” Commonwealth v. Edwards, 735 A.2d 723, 725 (Pa. Super. 1999). Consent must also b¿ given free from deception, duress or coercion. Id. Voluntariness is a question of fact that is to be determined from the totality of the circumstances. Commonwealth v. Cleckley, 738 A.2d 427, 430 (Pa. 1999). Our Superior Court has enumerated a number of factors to consider in determining whether consent was voluntary:

(1) the presence or absence of police excesses; (2) whether there was physical contact; (3) whether police directed the citizen’s movements; (4) police demeanor and manner of expression; (5) the location of the interdiction; (6) the content of the questions and statements; (7) the existence and character of the initial investigative detention, including its degree of coerciveness; (8) whether the person has been told that he is free to leave; and (9) whether the citizen has been informed that he is not required to consent to the search.

Id.; Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008).

Here, the initial encounter between defendant and law enforcement involved only one officer. While two additional officers arrived on the scene a few minutes into the encounter, their involvement with the occupants was minimal. Officer Scarfo allowed defendant to remain in his vehicle during the initial interview and while he ran a background check on defendant. The initial encounter between the officer and defendant was a routine traffic stop and law enforcement’s actions were the same as those used with dozens of citizens briefly detained for traffic violations each day. Furthermore, Officer Scarfo openly explained to defendant that he had learned of defendant’s background and requested consent to search defendant’s person. The officer testified that defendant agreed to the search, and defendant did not refute the officer’s statements at hearing.

Accordingly, we find that Officer Scarfo had reasonable suspicion to prolong the traffic stop with defendant. Further, we find that the facts presented indicate that defendant voluntarily consented to the search of his person. Defendant’s motion to suppress will be denied.

ORDER

And now, October 12, 2010, upon consideration of defendant Jeffrey Pierre’s omnibus motion, it is ordered as follows:

1. Defendant’s motion for habeas corpus relief is denied.

2. Defendant’s motion to suppress evidence is denied.

      . Defendant’s motion to suppress evidence as a result of an unlawful search of the vehicle was withdrawn at the time of the omnibus hearing. Such issue is therefore moot and will not be addressed in this opinion.


source: Caselaw Access Project

author: AMMERMAN, J.,

license: Public Domain

text:
    Moshannon Valley Sch. Dist. v. Moshannon Valley Education Assoc.

      C.P. of Clearfield County,
    no. 2010-1370-CD.

      Brian K. Marshall, for plaintiff

      Randall C. Rodkey, for defendant.
    October 26, 2010
   OPINION

AMMERMAN, J.,

On August 2, 2010, Moshannon Valley School District (“District”) filed a Petition to Vacate Award of Arbitrator, thereby asking this Court to set aside an arbitrator’s award in favor of Moshannon Valley Education Association (“Association”). The underlying dispute involved the discharge of Michelle Rupp, a non-tenured teacher or a “temporary professional employee” in school system parlance. The District hired Ms. Rupp as a full-time elementary teacher in August 2007. Per the School Code, District personnel evaluated Ms. Rupp twice per year. Ms. Rupp received a satisfactory rating at both of her first year evaluations, as well as the first half of her second year. However, for the second half of the 2008-09 school year, she received an unsatisfactory rating. Subsequently, she was dismissed based on that evaluation. On June 30, 2009, the District sent Ms. Rupp, by Certified Mail, Return Receipt Requested, a letter informing her of the discharge. Ms. Rupp signed for the letter on July 1,2009. A grievance dated July 8,2009, was then filed on Ms. Rupp’s behalf by the Association.

Grievances of this sort are governed by a Collective Bargaining Agreement (“CBA”), which is effective July 1, 2008, through June 30, 2012. Generally, grievances must follow a multi-step process, beginning with the appropriate school principal. See CBA, VII. Grievance Procedures, at 4-5.

Grievances involving dismissals, however, follow a different procedure. Pursuant to the parties’ CBA:

Grievances involving suspensions (furloughs) or dismissals shall bypass the procedures contained in Section B and shall not be submitted to the principal. Grievances involving suspensions (furloughs) or dismissals shall be presented directly to the Superintendent of the School District, in writing on the form provided by the Employer, within five (5) work days after the happening of the incident or matter upon which the grievance was based.

CBA, VII.F, at 5.

The District maintains this grievance was untimely filed on July 10, 2009, and was filed with the principal, not the superintendent, as required. The Association asserts the grievance was properly filed.

Despite the disagreement over this procedural issue, the matter moved through the grievance process and ultimately reached arbitration. On April 27, 2010, a hearing was held before Arbitrator Bernard S. Fabian, and on July 2, 2010, he issued his decision, sustaining the Association’s grievance. In his opinion, Arbitrator Fabian noted the District did not address the timeliness issue at the hearing. Nonetheless, he considered the District’s argument and found the grievance was timely filed. The District now requests this court vacate the arbitrator’s decision, sustaining the Association’s grievance.

In State System of Higher Education (Cheyney University) v. State College University Professional Association, the Pennsylvania Supreme Court enunciated the standard a court should utilize when reviewing an arbitration award. 560 Pa. 135 (1999) (fCheyney”). Known as the “essence test,” the two-prong analysis requires the court first determine if the issue is properly defined within the terms of the CBA, and if so, to uphold the award so long as the arbitrator’s interpretation can be rationally derived from the CBA. Id. at 150. “That is to say, a court will only vacate an arbitrator’s award where the award indisputably and genuinely is without foundation in, or fails to logically flow from, the collective bargaining agreement.” Id. This standard is a highly deferential one, as evidenced by the numerous decisions upholding arbitrator’s awards as rationally based. The rationale behind the respect given to arbitration awards was best memorialized by the U.S. Supreme Court in United Steelworkers v. Enterprise Wheel & Car Corp.:

It is the arbitrator’s construction which was bargained for, and so far as the arbitrator’s decision concerns the construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.

393 U.S. 593, 599 (1960).

Both parties agree that the first prong of the essence test is satisfied. Therefore, the limited issue before this court is whether the arbitrator’s interpretation of the grievance procedure is logically derived from the CBA. The court finds it is.

The District argues that CBA unambiguously sets forth the procedure for filing a grievance, leaving no room for interpretation by the arbitrator. “[W]hen the words [of a CBA] are clear and unambiguous, the intent is to be gleaned exclusively from the express language of the agreement.” Greater Nanticoke Area Sch. Dist. V. Greater Nanticoke Area Educ. Ass’n, 760 A.2d 1214, 1219 (Pa. Cmwlth. 2000) (quoting Delaware County v. Delaware County Prison Employees Indep. Union, 552 Pa. at 189). But Delaware County is applicable only where the contractual language is “truly susceptible of only one meaning, and thus unambiguous as a matter of law.” Id.

In the instant case, the contract provision is not as clear as the District contends. The CBA requires grievances involving a discharge to be presented directly to the superintendent within five days of the matter giving rise to the grievance. First, the CBA does not describe how one “presents” a grievance. The arbitrator, based on his four decades of experience in labor relations, found a grievance is properly filed when it is reduced to writing and presented by mail or personally to the appropriate supervisor. Arbitrator’s Award at 8. His rationale was that the Association would have done all it could do and it should not be punished for things outside of its control. Id. at 8-9. Absent contractual language clearly requiring something to the contrary, such logic is sound and will be upheld.

Furthermore, the record before the arbitrator appears to be deficient. On page 4 of his opinion, Arbitrator Fabian noted, “It was not disclosed as to specifically how this grievance was filed, i.e., was it filed and given to the Superintendent of Schools personally or was it sent through the U.S. mail or interdepartmental mail within the District.” The District had the opportunity to present evidence of how it was filed, as well as with whom it was filed, but it failed to do so. The District also was silent when it was directly asked by the arbitrator at the hearing whether there were any procedural matters pending. Id. at 5. It was not until after the hearing in its post-hearing brief that the District raised the timeliness issue with the arbitrator. First, the District does not get another bite at the apple simply because it disagrees with the decision, particularly when it did little to advance its argument in the first place. Had the issue been so important, which admittedly it was, the District should have presented witnesses or evidence clearly showing who received the grievance and in what manner it was received at the hearing. Second, and just as importantly, even though the issue was arguably waived, Arbitrator Fabian still considered the District’s arguments, and yet, he expressly rejected them. Id. at 8.

Using the evidence that was before him, coupled with his own experience in the field, Arbitrator Fabian carefully explained how he interpreted the contract and concluded the grievance was timely “presented” within the five-day limit. Specifically, he found the Dismissal Letter was sent on June 30, 2009, and was signed for one day later. Id. at 7. He reasoned that July 2, 2009, was the day the clock started ticking in terms of the five-day limit because this was the first real opportunity, in his opinion, to react. Id. Therefore, excluding weekends, July 8, 2009, would have been the fifth and final day to file the grievance. Id. Because there was no evidence presented to contradict the date marked on the grievance, as discussed above, it was rational for the arbitrator to rely on that date - July 8,2009 - and conclude the grievance was timely.

Moreover, the arbitrator concluding that July 2, 2009, was day 1 is not necessarily contrary to the contractual language. If the clock were to run from the date of the letter (here, June 30, 2009), the District would have no incentive to expeditiously inform any employee of his or her reprimand or discharge. Rather, it could drag its heels for five days, then notify the employee, thus preempting him or her from challenging the decision. Therefore, it was not irrational for the arbitrator to exclude that day.

Likewise, the arbitrator cannot be faulted for excluding July 1, 2009, from the timeline. As Arbitrator Fabian explained in his opinion, it is unclear when Ms. Rupp received the letter that day. Perhaps the District offices closed at 3:30 p.m. that day, and Ms. Rupp’s mail was not delivered until 4:30 p.m. Whatever the factual circumstances, the arbitrator could rationally conclude Ms. Rupp should not be penalized for failing to take action immediately upon receiving the notice. Thus, excluding this day was also not illogical.

The court’s examples, above, are just a few hypotheticals the arbitrator could have considered in making his decision. There are feasibly many more illustrations that would have justified the arbitrator’s decision. Similarly, there are probably an equal number of instances that would have demanded a different result. However, it is exactly this type of second-guessing that a court is to avoid in reviewing an arbitration decision. The court need not reach the conclusion that Arbitrator Fabian’s interpretation was the correct one. Even if it were incorrect, it is rationally based on the contract language and is not “indisputably and genuinely without foundation.” Cheyney, supra, at 150. The court should not vacate an arbitrator’s award simply because it favors its own interpretation of the CB A over the arbitrator’s interpretation. See also Conneaut Sch. Serv. Pers. Ass’n v. Conneaut Sch. Dist., 508 A.2d 1271, 1275 (Pa. Cmwlth. 1986) (“Because the timeliness of the grievance was covered by the contract and therefore squarely committed to the arbitrator’s discretion, courts have ‘no business’ overruling the arbitrator merely ‘because their interpretation of the contract is different from his.’”) (quoting Leechburg Area Sch. Dist. v. Dale, 492 Pa. 515 (1981)).

Based on the foregoing, the court enters the following:

ORDER

And now, January 28, 2011, it is the order of this court that Moshannon Valley School District’s Petition to Vacate Award of Arbitrator be and is hereby denied.


text:
    Delvecchio v. Muller’s Diner d/b/a Muller’s Dinner/My Place Bar and Grill and Pocono Area Restauranters, Inc.

      C.P. of Monroe County,
    no. 4457 Civil 2010.

      Michael T. van der Veen, for plaintiff.

      Matthew P. Barrett and Norman D. Namey, for defendants.
    October 21, 2010
   OPINION

SIBUM, J,

Plaintiff filed a complaint against defendants seeking damages for injuries allegedly sustained by plaintiff when he went to defendant Muller’s diner to assist in breaking up a fight. In his complaint, plaintiff alleges that on February 19, 2010, he was visiting a friend’s business in Monroe County when his friend received a telephone call requesting assistance in breaking up a fight at defendant Muller’s diner d/b/a Muller’s diner/My Place Bar and Grill (“defendant”). Plaintiff and his friend proceeded to defendant’s business. When they arrived, the fight had spilled into defendant’s parking lot. Plaintiff and his friend assisted in breaking up the fight. While helping to break up the fight, plaintiff was beaten and pistol-whipped in defendant’s parking lot. As a result of the beating, plaintiff sustained a left pneumothorax, rib fracture, partial amputation of the right thumb, nasal fracture, head lacerations, concussion, right eye contusion, thumb fracture, multiple facial fractures, and multiple abrasions and contusions. The injuries were inflicted upon plaintiff by unidentified patrons of defendant’s business. Plaintiff asserts in his complaint that defendant is liable under a theory of negligence in failing to provide proper security for allowing the dangerous condition to exist, and for failing to warn plaintiff of the dangerous activity. Plaintiff also alleges negligence under the Dram Shop Act and asserts a claim for punitive damages, as well. Defendant filed preliminary objections to the complaint. Both parties filed briefs, and oral argument on the preliminary objections was heard before the court on September 7, 2010. We are now prepared to dispose of defendant’s preliminary objections.

DISCUSSION

In its preliminary objections, defendant has filed a demurrer as to plaintiff’s entire action alleging that defendant, as a matter of law, is not liable to plaintiff for the injuries plaintiff sustained from unnamed patrons of defendant’s business. Alternatively, defendant moves to dismiss plaintiff’s action for failure to j oin an indispensable party and by failing to join the person or persons who assaulted him. Defendant also demurs to plaintiff’s claim for punitive damages and has filed a motion to strike for insufficient specificity of pleading. We will begin by addressing plaintiff’s demurrer to the entire action.

Preliminary objections may be filed by any party to any pleading on several grounds, including legal insufficiency of a pleading (demurrer). Pa. R.C.P. 1028(a)(4). In ruling on preliminary obj ections, we recognize that the court must accept as true “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom....” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth.1990). The court need not accept as true, however, “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998).

When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the cases which are clear and free from doubt. King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996). Alternatively, a motion to strike a pleading may be granted when lack of conformity to a law or a rule of court occurs. Pa.R.C.P. § 1028(a)(2).

A demurrer tests the legal sufficiency of the pleading. Sutton v. Miller, 592 A.2d 83 (Pa. Super. 1991). In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 479 A.2d 517,519 (Pa. Super. 1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id; see also Cianfrani v. Commonwealth, State Employees’ Retirement Bd., 479 A.2d 468, 469 (Pa. 1984). If any theoiy of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, 479 A.2d at 519; Cianfrani, 479 A.2d at 469. Conclusions of law and unjustified inferences are to be disregarded when ruling on a demurrer. Aetna Electroplating v. Jenkins, 484 A.2d 134 (Pa. Super. 1984).

Defendant’s preliminary objection in the nature of a demurrer challenges plaintiff’s complaint as failing to set forth a cause of action for which relief may be granted. Specifically, defendant argues that it had no duty to warn or protect plaintiff from the fight or the dangers arising therefrom. As such, defendant asserts that plaintiff has failed to state a cause of action for negligence against it and that the complaint should be dismissed.

As a possessor of land, the duty owed by defendant to plaintiff depends upon plaintiff’s status. As an invitee, a plaintiff is granted the highest status under the law. But even under this highest standard, a defendant is not an insurer of a plaintiff’s safety. Rather, a defendant’s duty is only to use reasonable care to protect his or her invitees from unknown or non-obvious dangers. Holpp v. Fez, Inc., 656 A.2d 147, 149 (Pa. Super. 1995). Our Pennsylvania Supreme Court delineated the liability of a possessor of land who holds that land open to patrons for business purposes. Moran v. Valley Forge Drive-In Theater, Inc., 246 A.2d 875, 878 (Pa. 1968). In the Moran case, the Supreme Court affirmed that the law regarding this duty is set forth in Section 344 of the Restatement of Torts, Second. In setting forth the standard of liability for the possessor of land who holds open that land to patrons for business purposes, the Supreme Court noted:

A possessor of land who holds it out to the public for entry for his business purposes is subject to liability to members of the public while upon the land for such a purpose for bodily harm caused to them by the accidental, negligent, or intentionally harmful acts of third persons...if the possessor by the exercise of reasonable care could have
(a) discovered that such acts were being done or were about to be done, and
(b) protected the members of the public by
(i) controlling the conduct of the third persons, or
(ii) giving a warning adequate to enable them to avoid the harm....

Id. at 878. The Supreme Court in Moran went on to recite, at section 344 of the Restatement of Torts, Second, as follows:

Since the possessor is not an insurer of the visitor’s safety, his is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience that there is a likelihood of conduct on the part of the third persons in general which is likely to endanger the safety of the visitor, even though he had no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience is such that he should reasonably anticipate a careless or criminal conduct on the part of a third person, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Id.

Applying the above law to the well pled factual allegations contained in plaintiff’s complaint, we must conclude that plaintiff’s complaint has failed to allege a cause of action upon which relief can be granted. Accepting the well pled factual allegations of plaintiff’s complaint and giving plaintiff all reasonable inferences derived therefrom, plaintiff’s complaint has established the following: plaintiff appeared at defendant’s business after being prescent when his friend received a phone call requesting the friend’s assistance to break up a fight at defendant’s place of business. According to plaintiff’s complaint, plaintiff and his friend then “proceeded to defendant’s business and, while assisting in breaking up the fight that spilled into the parking lot by the time of their arrival, plaintiff was beaten and pistol-whipped in the parking lot, causing plaintiff to suffer severe bodily injuries.” Based upon the allegations of plaintiff’s own complaint, plaintiff was not initially involved in the fight. Rather, he learned of the fight while at another location and then knowingly presented himself to the area of the fight. Accepting plaintiff’s well pled facts as true, we conclude that the danger to the plaintiff, the fight, was known and obvious and, therefore, defendant had no duty to warn plaintiff of the known and obvious danger of the fight.

In his brief, plaintiff tries to distinguish the instant matter from the Holpp v. Fez case, supra., in an attempt to impose upon defendant a duty to protect plaintiff from harm. Plaintiff argues that Holpp is inapplicable to the present case because Holpp involved injuries sustained by a police officer while on duty. We disagree. In Holpp, the plaintiff was a police officer who had been called to the defendant’s establishment to quell a disturbance. Holpp, 656 A.2d at 148. He agreed to return at a later time to provide further assistance if necessary. Id. When he returned, he was acting in his official capacity, was aware of the potential for violence among patrons who had been consuming alcoholic beverages, and was conscious of the attendant risks. Id. at 149.

The issue of the plaintiff’s occupation as an on-duty police officer pertained only to the determination of his status as either a licensee or an invitee and the resultant duty owed to the plaintiff by the defendant. The Holpp court held that regardless of whether the plaintiff police officer was an invitee or a licensee, the trial court could conclude, as a matter of law, that the defendant had breached no duty to the plaintiff. Id.

Plaintiff also cites to the case of Moran v. Valley Forge Drive-In Theater, Inc., supra., for the proposition that defendant owned a duty to warn and protect plaintiff from harm. In that case, the plaintiff went to the restroom while patronizing the defendant’s drive-in movie theater. Moran, 246 A.2d at 877. While approaching the restroom, plaintiff observed 6 to 8 boisterous teenagers in the vicinity of the restroom. Id. While the plaintiff was using the facilities, a lighted firecracker exploded causing plaintiff temporary hearing loss and related injuries. Id.

The record in that case further revealed that there were approximately 12 prior incidents of firecrackers being set off on the theater premises over the preceding two years, including on one occasion, a firecracker explosion in the men’s bathroom. Id. The theater gave no warning, either by prohibiting the lighting of firecrackers or by signs warning patrons of the possibility of firecrackers being exploded on the premises, although three security personnel charged with maintaining decorum were on duty the night of plaintiff’s accident. Id. at 877-78.

In finding that the plaintiff had establish sufficient facts from which the jury could reasonably infer negligence on the part of the theater, the Moran court found that under the facts as alleged in that case, the plaintiff had reason to know of the firecracker danger. Id. at 878-79. The Moran court specifically noted that a landowner has a duty to protect visitors of dangers of which the landowner knew or had reason to know. Id. at 878. The court found that the prior occurrences of rowdiness by teenagers, the multitudinous firecracker explosions, and the inability of theater personnel to maintain proper decorum were sufficient to put the defendant on notice of the danger and to create a duty for defendant to warn or protect the plaintiff from firecracker danger. Id. While we agree with the law as stated and applied in the Moran case, we find that the present matter is factually distinguishable from Moran for several reasons.

First, the issues before the court in Moran were whether the defendant theater knew or had reason to know of the danger (the firecracker explosion in the men’s restroom) and whether the defendant theater took adequate measures to either warn patrons of the possible danger or to prevent acts on the part of third persons which might injure patrons of the theater. Second, the danger in Moran was unknown to the plaintiff prior to the incident. Here, unlike Moran, the plaintiff learned of the danger, the fight, prior to proceeding to defendant’s place of business. The fight was a known danger to plaintiff when he went to defendant’s business. In fact, plaintiff went with his friend who had been called to defendant’s premises in order to assist in breaking up the altercation. There are no allegations in plaintiff’s complaint of any danger unknown to plaintiff from which defendant would have had an obligation to warn or protect plaintiff. As such, the issue of whether defendant knew of the danger or took adequate measures to protect patrons is irrelevant.

Even if the issue were of relevance to our inquiry, we note that plaintiff’s complaint does not contain any well pled allegations of previous physical altercations or similar events by the unknown individuals who beat plaintiff or other third parties at defendant’s place of business which would impose a duty to warn or protect on defendant. Admittedly, paragraph 13 of plaintiff’s complaint contains boiler plate allegations which attempt to impart such a duty on defendant. However, the allegations are just that - boilerplate. They are not well pled factual allegations and do not contain any specificity. Without the requisite specificity, defendant is not able to defend plaintiff’s complaint, nor is the court able to consider the allegations when deciding defendant’s preliminary objections. Based upon the allegations set forth in plaintiff’s complaint, we find that defendant owed no duty to warn or protect plaintiff from the known danger of the fight in question.

Having found that defendant owed no duty to warn plaintiff, we are compelled to conclude that any alleged violation of the Dram Shop Act by defendant was not the proximate cause of plaintiff’s harm. Holpp v. Fez, Inc., 656 A.2d at 150; Miller v. Brass Rail, 702 A.2d 1072, 1078 (Pa. Super. 1997). Based on the foregoing, we will sustain defendant’s preliminary objection in the nature of a demurrer. Accordingly, we enter the following order.

ORDER

And now, October 20, 2010, defendant’s preliminary obj ection to plaintiff’s complaint in the nature of a demurrer is sustained. Plaintiff’s complaint as to defendant, Muller’s Diner, d/b/a Muller’s Diner/My Place Bar and Grill, only, is dismissed with prejudice.

      . Defendant Muller’s Diner, d/b/a Muller’s Diner/My Place Bar and Grill, acknowledges in its preliminary objections that it has been incorrectly identified in plaintiff’s complaint as well as the caption to this action. Defendant’s correct name is Eight Wonders of the Poconos, Inc., t/a/ Muller’s Diner.


author: AMMERMAN, J,

text:
    CitiBank (South Dakota), N.A. v. Knepp

      C.P. of Clearfield County,
    no. 2010-1161-CD.

      Derek C. Blasker, for plaintiff.

      John R. Lhota, for defendant.
    October 6, 2010
   AMMERMAN, J,

This action is another in a litany of cases before this court involving an attempt to collect credit card debt. On July 6, 2010, plaintiff CitiBank (South Dakota), N.A. (hereinafter “plaintiff’), filed a complaint against defendant Jean E. Knepp (hereinafter “defendant”), seeking damages of §11,136.10 On August 9, 2010, defendant filed preliminary objections to plaintiff’s complaint, and on August 30, 2010, plaintiff filed a response to defendant’s preliminary objections. On September 1, 2010, counsel for the parties appeared before this court for argument on said preliminary objections. At that time, plaintiff’s counsel provided a brief to the court, and defense counsel was directed to file a letter brief within twenty days, which it has.

Defendantraises two preliminary objectionstoplaintiff’s complaint. Both preliminary obj ections pertain to perceived violations of rule 1019 of the Pennsylvania Rules of Civil Procedure. First, defendant claims plaintiff failed to attach to the complaint documentation of a payment agreement. Second, defendant objects to plaintiff’s failure to attach to the complaint documentation supporting the amount claimed. Plaintiff responds that such documentation is not necessary, as the instant action is one based on an account stated cause of action, not breach of contract. Therefore, exhibit A, a copy of defendant’s December 2009 credit card statement, is sufficient.

Before the court addresses the merits of the preliminary objections, it briefly examines the nature of an account stated. An account stated is “an account, in writing, examined, and accepted by both parties.” 16 Summ. Pa. Jur. 2d Commercial Law § 8:10 (2010). It is based on an existing debt and arises from a pre-existing account or course of dealings between the parties. Id. Therefore, to state a cause of action based on an account stated, a plaintiff must show the account was rendered and the other party accepted, agreed to or acquiesced to the account’s accuracy. C-E Glass v. Ryan, 70 Pa. D. & C. 2d 251 (C.P. Beaver 1975) (quoting 1 P.L. Encyc., Accounts, § 4). Such assent may be either express or implied. Rush’s Service Center, Inc. v. Genareo, 10 Pa. D. & C. 4th 445 (C.P. Lawrence 1991).

In this case, plaintiff avers it mailed billing statements to the defendant on a monthly basis, complaint at ¶ 6, and that defendant had made payments on said account for “many months.” Id. at ¶ 7. Plaintiff argues the end result of the above two actions was an account stated. In its brief, it lists several cases in which courts have held this is sufficient to state a cause of action as an account stated. The court notes these cases are all trial court opinions or decisions from other states, and while they may be persuasive, they certainly are not binding on this court. Additionally, there are decisions in which the exact opposite is found. See, e.g., Am. Express Centurion v. Decker, 9 Pa. D. & C. 5th 299 (C.P. Centre 2009); Target Nat’l Bank v. Kilbride, 10 Pa. D. & C. 5th 489 (C.P. Centre 2010); Capital One Bank (USA) N.A. v. Clevenstine, 7 Pa. D. & C. 5th 153 (C.P. Centre 2009).

The only thing apparent from the decisions is that there is no consensus as to what is sufficient, with one exception - merely receiving a statement in the mail and not objecting to its contents is not acquiescing. C-E Glass v. Ryan, supra, at 253. Ordinarily, in cases such as these, appending one monthly billing statement to a complaint will be ineffective. Here, plaintiff went a step, albeit a small one, further. It also avers that defendant “had for many months made payments on account of the billing statement.” Complaint at ¶ 7. Therefore, the question for this court is whether such a generalized allegation is enough to push plaintiff’s case over the threshold. The court finds it is not.

Pennsylvania is a fact-pleading state. The purpose of the pleading rules is to put the defendant on notice of what charges she is to defend herself against. Plaintiff’s generic complaint hardly accomplishes this. First, there is nothing to indicate how often or even when defendant last made a payment on the account. The last payment could have been last week, last month, last year, or earlier. When the latest payment was made is important in determining whether defendant assented to the billing statement plaintiff contends is an accurate rendering of the account. For instance, if the last payment occurred in June 2009, the court would be hard-pressed to find that the defendant assented to December 2009 billing statement attached as exhibit A of plaintiff’s complaint, especially in light of the fact that no payments had been made in six months. The six-month lapse in making payments could, very well, be the result of defendant contesting the amount allegedly due. Therefore, there would be no assent on which an account stated could be based. On the other hand, if the defendant had made a payment in November, it would be easier for the court to conclude she agreed with the statement as presented.

Likewise, it is equally important to know with what regularity, if any, such payments were made. The plaintiff simply avers “many payments” were made. The number of payments and the time span during which such payments were made is essential in determining if there was a course of dealing between the parties, which resulted in an account stated. In C-E Glass v. Ryan, supra, the court held that four transactions over a period of seven months was not sufficient despite the fact that plaintiff mailed monthly statements to defendant. It also pointed out: “[a] ‘statement of account’ in business dealings and an ‘account stated’ in law are not synonymous.” Id. Essentially, plaintiff is asking this court to recognize an account stated based on one billing statement and brief mention that “many payments” had been made at some undetermined time. This is not the sort of fact pleading required in Pennsylvania to put defendant on notice of the charges against her. Nor does merely labeling a cause of action as one based on an account stated make it so.

Plaintiff is not, at this stage at least, required to set forth a detailed list of transactions and charges. See Genareo, supra, at 447-48. As plaintiff correctly points out, this would require it to plead evidence not facts, which is not required or even permitted under the rules. Additionally, plaintiff is not seeking special damages, which must be specifically pleaded.

Plaintiff is, however, required to state a valid cause of action and plead sufficient facts to put defendant on notice of the allegations against her so that she can prepare a defense. The mere attachment of one billing statement and an averment that defendant made “many payments” sometime does not establish that she acquiesced, forming an account stated.

Based on the foregoing reasons, the court enters the following:

ORDER

Now, October 6,2010, upon consideration of the parties ’ arguments, it is the order of this court that defendant’s first preliminary objection to plaintiff’s complaint be and is hereby granted. Plaintiff shall file an amended complaint within no more than twenty (20) days from this date. Defendant’s second preliminary objection be and is hereby denied.

      . The court notes that nowhere in its complaint does plaintiff actually aver that there was a default, entitling it to judgment. In paragraph 7 of its scant eight-paragraph complaint, it mentions, almost in passing, that statements were retained “without payment.”


author: FORD, J.,

text:
    Walsh v. Walsh

      C.P. of Lehigh County,
    no. 2010-FC-0328.

      Robert Davison, for plaintiff.

      Melissa Rudas, for defendant.
    December 29, 2010
   FORD, J.,

Plaintiff, George M. Walsh (father), filed a complaint for custody on March-3, 2010. In it, he asks that he be made the primary physical custodian of the parties’ two minor children. Defendant, Jasmin V. Walsh (Mother), who began participating in the case immediately after the filing of the complaint, asks that she be named the primary physical custodian.

The case proceeded to trial on December 9, 2010. I entered an order on December 17, 2010, wherein the parents were named joint legal custodians, mother was made the primary physical custodian of the children, and father was granted significant partial custody rights. In this opinion, I explain the reasons for the entry of the order.

Findings of Fact

1. Father traveled to the Philippines in 1999. He met mother there. He brought her to the United States in that same year.

2. The parties were married on January 7, 2000. The parties’ son, Chad C. Walsh, was bom on December 13, 2000. The parties’ second son, David C. Walsh, was born on March 12,2002.

3. The parties ’ final separation occurred on Febraary 1, 2010, when father told mother she had to leave the marital home in Slatington, Lehigh County. After mother resided with a few friends over a three month period, she moved into a townhouse in Slatington where she still resides. Slatington is in the Northern Lehigh School District. Since the separation, father also moved from the marital home. He has resided in Coplay, Lehigh County, for about five months. Coplay is in the Whitehall Coplay School District. The parties’ present homes are located ten to eleven miles from each other. Both homes are comfortable, safe, and properly suited for the children.

4. Father is 44 years old. He has a bachelor’s degree. He has been employed throughout the marriage. He has worked for more than eight years as a corrections officer at the Northampton County Prison. He presently works the 10:00 p.m. to 6:00 a.m. shift, Monday through Friday, and every other weekend. His work schedule will change on January 9, 2011, when he will work the 6:00 a.m. to 2:00 p.m. shift.

5. Mother is 30 years old. Her skills in the English language are limited. She has less than a high school education. She did not work outside the home until she secured part-time employment in March of 2009. Mother, as the stay-at-home parent, primarily raised the children. Father, in addition to his steady employment, assisted in raising the boys. However, his routine when he would return home from night shift would be to spend several hours on the home computer, then sleep and then be available for the family.

6. Mother continues to work part-time selling jeweliy at shows. This has required that she travel out of state for several days at a time each month. Mother anticipates that, from this point forward, she will have to travel about four days per month. That would be less than her previous travel.

7. Through the years, both parents have regularly engaged in enjoyable and worthwhile activities with the boys, both in the marital home and beyond it.

8. Chad is a fourth grade student at Slatington Elementary School. He performs satisfactorily in his studies. In recent months, he has had problems with language skills and these problems are somewhat reflected in his grades. Both parents, during their respective times with Chad, are working with Chad to address these issues.

9. David is a third grade student at Slatington Elementary School. He is doing well academically.

10. Both children have spent all of their elementary school years in the Northern Lehigh School District with the last few years in Slatington Elementary School.

Both boys are adjusted to their school in Slatington and they are happy in that school.

They have anetwork of friends at school and inmother’s neighborhood in Slatington. The boys have not formed any friendships with children who may live in father’s Coplay neighborhood.

11. Without mother’s permission, father attempted to enroll the boys in the Whitehall Coplay School District for the present academic year. When mother learned of this and objected, father filed a petition asking the court to permit him to enroll them. By order dated September 3, 2010, after hearing, the judge denied that petition. Since father first raised the subject of switching the boys’ school district, mother has objected to it and father has known that. In a web posting in late August, 2010, father wrote: “despite a last (sic) phone call from a mystery lady telling the school district not to do so, i (sic) got the boys registered for school today. I (sic) not allowed to say who made the phone call, but if your (sic) thinking nutty and just a bit slutty your (sic) on the right track.”

12. Through an interim order that was entered on May 11, 2010, the parties have equally shared physical custody of the children with four exchanges of the boys between the two households during each repeating 14-day custody cycle. Mother lives in the same town as the children’s school so attendance and promptness of the children have not been a problem when the children are in her custody. When it has been father’s responsibility to get the children to school, he has been tardy with them on a few occasions but, despite the distance between his home and the school, he has done well on this topic. This shared custody schedule, with its frequent changes between the households is difficult for the parents and the children. At trial, neither party sought a continuation of shared physical custody.

13. Both parents love the children and the children love the parents.

14. Father lives within a five to ten minute drive from where his mother and sister reside. Father is emotionally close to his mother, Sharon Weber. She has assisted father at times in meeting the needs of the boys. Both she and father plan for her to move into father’s home to assist in taking care of the boys during father’s custodial periods.

15. Mother’s family resides in the Philippines. Her family continues to be important to her. She talks with familymembersbyphoneregularly.Becauseofthedistance, visits with her family are rare. Until approximately 2008 or 2009, mother had no significant friendships outside of the home.

16. Since mother’s entry into the United States with father in 1999 through the date of trial on December 9, 2010, father has been unreasonably controlling of significant aspects of mother’s life. Because mother was a stay-at-home mother, she relied upon Father for spending money. He refused her requests for money at times or sparingly gave it to her, usually in twenty dollar or thirty dollar increments. Mother expressed a desire to obtain a driver’s license several times during the marriage and she attempted to educate herself on what was needed to obtain a learner’s permit. Father did not encourage her to get a license. Father discarded her driver educational materials when he saw them around the house. Father set limits on the time that mother was permitted to be away from the marital home.

17. In 2008, father made mother leave the marital home. He placed her belongings in garbage bags which he left outside the home. The parties reconciled after that.

18. Since the parties’ final separation in February, 2010, and before the agreed order of May 11, 2010, father has dictated when mother could see the children. Her time with them was limited by father to a few hours. He supervised each of these visits. They took place at locations that he designated. When father could not care for the boys because of work or other commitments, he arranged for female acquaintances or his own mother to watch the children even though he knew that mother wanted custody time with them. Father gave mother three hours of visitation with the boys during Thanksgiving of 2010. Father denied mother any contact with the boys on Christmas day, 2009, but allowed the paternal grandmother to spend time with the children on that day.

19. Father refused mother two visits with the children between February andMay, 2010, even though she traveled to the former marital home and asked to spend time with the boys when they were present, right there, in father’s home.

20. At some point in 2009, mother made the decision that she did not have to be so isolated and, through the internet, she met a male by the name of Andy. That developed into a physical relationship which lasted until a date shortly before the December 9 trial. On occasions over the last year or two, mother has engaged in sexually explicit conversation over the Internet with a male or males. She has also sent sexually explicit images of herself to the male or males. (There is no competent proof that Chad or David read or saw any of these computer exchanges.)

21. During the marriage, father subscribed to pornographic magazines. He has left them laying about the marital home. On one occasion, several years ago, the boys saw and looked at the pages in one of the pornographic magazines. They joked about what they saw. When mother heard and saw this, she stopped it. When she brought this to the attention of father, his response was, “boys will be boys.” Father discontinued his subscriptions to pornographic magazines several years ago.

22. When father became suspicious of mother’s computer use, he applied a program to monitor her use of the computer. He discovered her written exchanges with the male(s). He also discovered the compromising images of mother that she sent over the computer. He had a confrontation with mother about these which led to the separation on February 1, 2010. Father also sent copies of the compromising images of mother to one of her family members in the Philippines and to acquaintances that mother had made in this area. Father took copies of mother’s explicit email exchanges and the images of mother to Mrs. Tonya Smuts, one of mother’s friends. He offered to show these to Mrs. Smuts who refused to look at them.

23. Mrs. Tonya Smuts resides with her husband and three children in Slatington. She has lived with her family for years in the same neighborhood where the parties lived before the separation. Her son, Travis Smuts, is Chad’s schoolmate and best friend. Mrs. Smuts witnessed some of the events when father put mother out of the marital home in 2008. Outside the marital home, she saw the garbage bags with mother’s belongings. Since that incident, mother and Tonya Smuts have developed a close friendship. Mother’s present home, different from the marital residence, is located in the same neighborhood as Mrs. Smuts’s home.

24. After father told mother on February 1, 2010, that she had to leave the home, mother stayed at two friends’ homes and then, for three weeks in April, she stayed at the home of Mrs. Smuts. Mother gave father the addresses for each of these friends upon moving into their homes. Despite father’s contention at trial that he had no idea where mother was living since February 1, 2010, he knew where she was living at all times in 2010.

25. On April 22, 2010, after school, the boys went to Mrs. Smuts’s home on their bicycles to play with her son, Travis. Mother, who then resided in the Smuts home, was present. Mrs. Smuts invited the boys to stay for dinner with her and their mother. The boys were excited about this. Mrs. Smuts called father who did not answer his phone. She left a message that the boys would be staying with her and their mother for dinner. She then went to the grocery store to buy things for dinner. While she was still at the store, father returned her call. He yelled at Mrs. Smuts and demanded that the children be brought home by 5:00 p.m. He asked who was with the children. Mrs. Smuts responded that it was Jasmin. He stated, “[H]ow dare you? You have no rights. I have a custody order.” These statements were made by father before the entry of any custody order. Father also stated that he would make his own rules regarding custody. He would decide “where, when, how long; and only by appointment through him would Jasmin be able to see the boys.”

26. On April 27, 2010, Chad and David came to Mrs. Smuts’s home after 4:00 p.m. to play with Travis. Mother was still living in the Smuts home. Mrs. Smuts invited the boys to stay overnight in her home with mother. She intended to call father about this. Before she could call, Father came to her home and pounded on her door. He demanded to take the boys. Father tried to enter the Smuts home. Mrs. Smuts would not let him enter. Father screamed and used profanity directed at Jasmin. Among other things, he called her “f — ing whore.” Chad, David, and the Smuts children witnessed this incident. David cried and put his head under a pillow. Chad sat on a couch, shook and cried. Mrs. Smuts asked father to leave repeatedly. He stated that he was not leaving without the children. He asked Mrs. Smuts if she realized what a whore Jasmin is. Father continued to yell and use profanity despite requests by Mrs. Smuts to stop. Father remained on the Smuts porch while the other individuals were in the home. Mrs. Smuts called the police. When the police arrived, father asked them if they realized what mother was doing on the Internet and do they realize what a whore she is. Father then left the premises.

27. After the agreed order of May 11, father misrepresented activities that he had arranged with the boys to extend his custody time and lessen mother’s time. There were other occasions when the children were told in advance by father or the paternal grandmother of attractive activities that they would be doing with the children but they would be done during mother’s court-ordered custody time. This created expectations in the children. Mother was then confronted with the choice of allowing the children to do, during mother’s court-ordered time, what they had been promised or giving up her own custody time. So as not to disappoint the boys, mother gave in.

Discussion and Conclusions of Law

As the court and counsel recognize, the paramount consideration in a custody case is the best interests of the children. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (Pa. 1992). In my attempts to determine Chad Walsh and David Walsh’s best interests, I considered “all factors which legitimately impact upon the child(ren)’s physical, intellectual, moral and spiritual well-being....” Zummo v. Zummo, 574 A.2d 1130, 1137 (Pa. Super. 1990); see also Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004).

The best chance for the children’s happiness and full development is to create a situation whereby the children will have an open and unfettered relationship with each parent. With all of their faults, each parent loves the children and the children love the parents.

With history and evaluation of the witnesses as the gauges, mother will support father’s important place in the children’s lives. She will do this no matter what custody schedule is established. Father will not do the same for mother. This was a significant consideration in the custody schedule created with the order of December 17, 2010.

Mother has materially contributed to the break-up of this marriage. She has done this through her affair with the man identified as Andy. (That was the only affair that was actually proven, not that only one affair is any less reprehensible.) She has also done this with her antics of exchanging sexually explicit Internet conversation and images with Andy and perhaps others. All of this began at some point in 2008. While mother was doing these things from the marital home, there is no evidence that the children were exposed to any of it.

Throughout the children’s lives, mother has been their primary care-giver except for the period following the final separation on February 1, 2010, when father took over, very much against mother’s wishes. That mother took care of the children well throughout their lives is undisputed. Since the restrictions that father placed on mother’s contact with the children, especially since February 1, 2010, mother has yearned to spend meaningful time with them. There were stretches, created by father, when she missed the children and the children missed her. She has proven herself to be a very good mother. There is no evidence that she ever denigrated father to the children. There is no evidence that she attempted to restrict the children’s access to father. She acknowledged from the witness stand that the children love father. She acknowledged the love that the children have for the paternal grandmother too. I conclude from the evidence that she will continue to be supportive of father’s important role in the children’s lives. Mother was credible throughout her testimony and her testimony was supported, in large part, by the credible witness, Mrs. Smuts.

Father also materially contributed to the break-up of the marriage. A degree of social isolation and difficulty adjusting would be expected of a young person brought from the Philippines to a new life in America. However, father has engaged in a course of conduct that contributed to mother’s isolation. He unreasonably controlled her. He stifled her opportunities to get a driver’s license. He controlled the purse strings and was parsimonious in giving (and often refusing) the debit card and cash requests. He controlled her socially in terms of acquaintances and times to be away from the home. He expelled mother from the home in 2008 despite her language difficulties and her lack of acquaintances here. He did the same thing on February 1,2010.

Once the final separation occurred, father dictated the times and circumstances under which mother could see the boys. Mother’s visits with the boys were few and contrived between February 1 and May 11, 2010, due to father’s requirements for these visits. Father actually refused mother two visits with the children even though she traveled to the former marital home and asked to spend time with the boys when they were present, right there, in father’s home. Under the shared custody order of May 11, father still managed to deprive mother of time granted to her as I have explained.

There is no hint in the testimony that mother ever denigrated father by word or action. Father has horribly denigrated mother. He has distributed her compromising emails and images to some of her friends here and to a family member in the Philippines.

He called her an “f---ing whore” in front of his children and then to the police. He referred to mother as “nutty” and “just a bit slutty” on Facebook. (See Exhibit D-2.)

Father has not been straightforward with Mrs. Smuts, mother, or the court. In believable testimony, Mrs. Smuts described how father told her that he had an order for physical custody of the children. That was not true at the time that he made that statement. Father’s testimony that mother just took off for the three months from February until May, 2010, and that he did not know where she was living during that period of time was not believable. From Mrs. Smuts’s testimony and mother’s testimony, it is clear that father knew that mother was living with three different female friends over the course of that three months. Father was disingenuous in describing his unilateral enrollment of the children in the Whitehall Coplay School District. Father proposed to the court that the alleged lack of objection by mother to his enrolling the children in Whitehall Coplay gave him the authorization from her to do that. The evidence establishes that mother did object to that enrollment and father knew it. In order to shorten mother’s custody time, father was not honest with mother in describing arrangements he had made with the children. Father’s stated reason for refusing mother unsupervised and limited visitation during the three months following the separation was that he was concerned about her Philippino contacts here and that she might abscond with the children. There was no evidence that mother had knowledge of anyone who could accomplish this or any other evidence that mother would abscond with the children. Father was not a credible witness.

For too many months, the children have been suffering from father’s denying them a meaningful relationship with their mother. Chad, in particular, wants and needs to spend more time with mother. Both children need the time to be unrestricted by unreasonable controls that father has placed upon the mother-child relationship. Father’s control of that relationship must end.

If father is made primary physical custodian, he will have added reason to arbitrarily control mother’s relationship with the boys. Conversely, with mother as primary physical custodian, she will attempt to positively co-parent the boys with father. The setting is created for a healthy relationship among the four people involved in this custody case. The best interests of Chad and David require that mother be made primary physical custodian and that father be given meaningful partial physical custody, as I have done in the December 17 order.


author: TERESHKO, J.,

text:
    Motz v. Brian P. MeVan, LLC

      Keith W. Kofsky, for plaintiff.

      Theodore M. Schaer and Noah S. Shapiro, for defendant.
    December 1, 2010
   TERESHKO, J.,

PROCEDURAL HISTORY

Plaintiff LenaMotz appeals from the order dated August 17, 2010, wherein this court granted defendants’ motion to transfer venue to Montgomery County Pennsylvania.

FACTUAL BACKGROUND

The case at hand arises out of the alleged legal malpractice of Attorney Brian McVan d/b/a Brian P. McVan, LLC in connection with his representation of plaintiff in an action for damages arising out of a slip and fall accident. Prior to commencing the action that is the subject of this appeal, it was alleged that on September 3, 2006 Lena Motz fell on a raised portion of concrete sidewalk in Brigantine, New Jersey, sustaining serious injuries. (Complaint ¶6) On or about September 12,2006, Joe Motz contacted Attorney McVan about pursuing a personal injury claim on his mother’s behalf. (Complaint ¶10) Attorney McVan forwarded plaintiff a contingency fee agreement and authorization for health information disclosure, which she promptly executed. (Complaint ¶14)

New Jersey law provides that a private property owner is immune from suit when the basis of liability is a sidewalk defect. (Complaint ¶ 40) The only potential defendants to plaintiff’s falldown claim were the City of Brigantine and the City of Brigantine Shade Tree Commission because the property at issue was privately-owned. (Complaint ¶ 20) As public entities, the City of Brigantine and the City of Brigantine Shade Tree Commission were entitled to notification of the claim within 90 days oftheloss.N.J.S.A. 59:8-8. Non-compliance with the 90-day period may be permitted if an application for late claim is presented within one year of the loss and exceptional circumstances are demonstrated. N.J.S.A. 59:8-9. Attorney McVan allegedly failed to notify the City of Brigantine and the City of Brigantine Shade Tree Commission within the original 90-day time period and failed to file an application for late claim. (Complaint ¶30)

Amotion for summary judgment for failure to comply with N.J.S.A. 59:8-8 was granted on January 23, 2009, resulting in the dismissal of all claims against the City of Brigantine and the City of Brigantine Shade Tree Commission. (Complaint ¶ 36)

Plaintiff thereafter commenced this action against defendants, Brian P. McVan, LLC and Brian P. McVan, Esquire by filing her complaint on May 21, 2010, seeking damages for injuries, pain and suffering, and loss of earnings stemming from attorney McVan’s mishandling of her September 3, 2006 falldown claim. (See Docket, Complaint ¶¶44-48) Motz alleges specific injuries including fractures to the left radial and ulnar shafts and right olecranon fracture. (Complaint ¶44) In addition to physical pain and suffering, Motz also alleges suffering mental anguish and humiliation. (Complaint ¶49)

Plaintiff alleges her claims were dismissed due to attorney McVan’s non-compliance with New Jersey law, although attorney McVan allegedly led her to believe that the state of the law was unfavorable. (Complaint ¶38) Plaintiff further asserts that had she been able to pursue her claims against the City of Brigantine and the City of Brigantine Shade Tree Commission, she would have been able to recover damages for the injuries she sustained in the September 3 falldown. (Complaint ¶41)

Motz is a resident of Maple Glen, Montgomery County, Pennsylvania. (Complaint ¶ 1) Attorney McVan is also a resident of Montgomery County. (Complaint ¶ 3) Brian P. McVan, LLC has its office for services in Glenside, Montgomery County. (Complaint ¶2) Service of attorney McVan was made at his office in Montgomery County, (defendant’s amended preliminary objections ¶ 10) The underlying action that is the basis of the instant lawsuit arose in New Jersey, and plaintiff’s personal injury complaint was filed in New Jersey. (Complaint ¶ 31)

Defendants Brian P. McVan, LLC and Brian P. McVan, Esquire (hereinafter “defendants”) filed preliminary objections to venue on July 6, 2010. (See docket)

Defendants subsequently filed amended preliminary objections on July 19, 2010. Id. The amended preliminary objections argued that venue in Philadelphia was improper because all parties to the lawsuit are residents of Montgomery County, and the accident out of which the instant cause of action arose occurred in New Jersey, (defendant’s amended preliminary objections ¶ 10) Plaintiff filed her response to preliminary objections on August 9, 2010. (See docket) This court issued an order granting preliminary objections on the basis of venue and transferring the action to Montgomery County on August 18, 2010. Id.

Plaintiff appealed the court’s order granting defendants’ preliminary obj ections on the basis of venue to the Superior Court on August 20, 2010. (See docket) On September 14, 2010, this court issued its notice for plaintiff to file her statement of errors pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)./&. Plaintiff filed her 1925(b) statement of errors on October 1, 2010. Id.

The sole issue to be addressed on appeal is whether the trial court abused its discretion when it sustained defendants’preliminary obj ections to Venue andtransferred this case to Montgomery County. (Statement of errors pg. 3)

LEGAL ANALYSIS

Pennsylvania law vests the trial court with considerable discretion in making determinations whether or not to grant a petition to transfer venue. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 242, 579 A.2d 1282, 1284 (1990). The standard of review in such cases is abuse of discretion. Id. Provided that the trial court’s decision to transfer venue is a reasonable one in light of the record it will not be overturned. Monaco v. Montgomery Cab Co., 208 A.2d 252, 256 (Pa. 1965). It is not enough for an appellant to persuade an appellate court that it might have come to a different result. McCrory v. Abraham 657 A.2d 499, 501 (Pa. Super. 1995). The burden rests on the appellant to show that the trial court misapplied or overrode the law or the decision was manifestly unreasonable, or resulted from partiality, prejudice, bias or ill will. Id. “If there exists any proper basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand.” Masel v. Glassman, 689 A.2d 314, 316 (Pa. Super. 1997).

Pennsylvania Rule of Civil Procedure 1006 governs where venue may be laid against an individual. Pa. R.C.P. 1006(c)(1) states where a claim for joint and several liability is pled as in this case, venue is proper in any county where venue may be laid against any of the defendants.

Motz does not contest that venue in Philadelphia is improper for Brian Me Van, individually. (Statement of errors pg. 4) No evidence has been produced to show any other county would be proper to serve Mr. Me Van besides Montgomery County, where he lives.

However, because this case also involves Mr. Me Van’s law firm, plaintiff contends that venue in Philadelphia is proper as to Me Van, LLC because the law firm regularly conducts business in the county. In cases such as this one, where one defendant is a corporation or similar entity, Pa. R.C.P. 1006(c) dictates that Pa. R.C.P. 2179 is applicable. Rule 2179 states in relevant part:

[A] personal action against a corporation or similar entity may be brought in and only in:
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of which the cause of action arose, or
(5) a county where the property or apart of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property. Pa. R.C.P. 2179(a) (2008)(emphasis added).

The office of Brian P. McVan, LLC is located in Montgomery County. (Complaint ¶ 2) Plaintiff hired defendants to pursue claims arising out of a slip and fall accident that occurred in New Jersey. (Complaint ¶31) The alleged malpractice in connection with the slip and fall occurred in Montgomery County where legal services were performed. Defendants do not have a registered office or a principal place of business in Philadelphia.

Thus, the focus of this analysis is whether Brian P. McVan, LLC regularly conducts business in Philadelphia County pursuant to Pa.R.C.P. 2179 (a)(2). Although plaintiff contends that Brian P. McVan, LLC does regularly conduct business in Philadelphia County, she does not provide sufficient evidence to meet her burden.

“In determining whether venue in an action against a corporation is proper on the ground that the corporate defendant regularly conducts business in the county in which it is sued, we must focus on the nature of the acts the corporate defendant allegedly performs in that county.” Battuello v. Camelback Ski Corp., 598 A.2d 1027, 1029 (Pa. Super. 1991). More specifically, whether a company “regularly conducts business” in a particular county must be assessed both as to the “quality” and “quantity” of business contacts the company has with that county. Id. In Purcell v. Bryn Mawr Hospital, 579 A.2d 1282 (Pa. 1990), the Pennsylvania Supreme court elaborated upon the standard:

“A single act is not enough,” while “each case must depend on its own facts.” “Quality of act” means “those directly, furthering or essential to, corporate objects; they do not include incidental acts.” Quantity means those acts which are “so continuous and sufficient to be general or habitual.” In combined form...the acts of the corporation must be distinguished: those in “aid of a main purpose” are collateral and incidental, while “those necessary to its existence” are “direct.” Id. at 1285 (citations omitted)(quoting Shambe v. Delaware and Hudson R.R. Co., 135 A. 755(Pa. 1927)).

Fritz v. Glen Mills Schools deals with insufficient quantity and quality of acts to establish venue in Philadelphia. 840 A.2d 1021 (Pa. Super. 2003). That case involved a school located in Delaware County that helps rehabilitate juveniles. Id. at 1023. The school had 35% of its students coming from Philadelphia County and the school was in a contract to serve those Philadelphia students. Id. The school had to utilize the Philadelphia court system occasionally to enforce those contracts if breached. Id. The Pennsylvania Superior court ruled that such contacts were not enough to confer venue in Philadelphia County as the contacts were incidental and not essential to the existence of the school. Id. at 1024. The court held that Glen Mills would go on without the Philadelphia students attending the school. Id.

Likewise, Brian P. Me Van, LLC is a suburban-based law firm serving mostly suburban clients. The firm may use the Philadelphia court system to litigate clients’ claims from time to time, but there is no assertion that these cases are essential to the existence of Brian P. Me Van, LLC. Defendant has not asserted that Philadelphia clients or cases are any more than incidental to the firm’s existence.

Plaintiff cannot establish that Brian P. Me Van, LLC “regularly conducts business” in Philadelphia County pursuant to Pa.R.C.P. 2179(a)(2). Aside from plaintiff’s inclusion of a docket sheet in her response to preliminary obj ections, which depicts a summary of actions commenced by Brian P. Me Van LLC in Philadelphia County, no further evidence was pled to substantiate that defendant regularly conducts business in Philadelphia County. (Plaintiff’s response to defendants’ preliminary objections)

In reviewing the summary of actions by Brian Me Van, LLC, the docket sheet shows that in a fourteen (14) year period of time, Brian Me Van, LLC only filed nineteen (19) actions in Philadelphia County. This amounts to slightly more than one legal action per year, which does not satisfy the quantity analysis as set forth in Purcell, supra. Specifically, plaintiff does not set forth what percentage of the firm’s total business the Philadelphia actions comprised to prove that it is continuous and sufficient to be general or habitual. Plaintiff also does not show that the contacts were of a sufficient quality that was directly necessary to the law firm’s existence.

Based on the aforementioned analysis, this court believes that plaintiff has not met her burden of proving that Brian P. Me Van, LLC regularly conducts business in Philadelphia.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the August 20, 2010 order granting defendant’s preliminaiy objections and transferring the case to Montgomery County Court of Common Pleas be affirmed.

      . Pursuant to Pa.R.C.P. 2176, “corporation or similar entity” includes limited liability companies.