author: MOTTO, P.J.,

text:
    Doe v. Eckerd Corporation

      C.P. of Lawrence County,
    No. 10479 of 2009, C.A.

      Douglas J. Olcott, for plaintiff.

      FrankM. Gianola, for defendants.
    June 12, 2014
   MOTTO, P.J.,

Before the court for disposition is a motion for summary judgment filed by defendant Just-Mark Construction Company (“JMC”) which contends that plaintiffs have failed to produce sufficient evidence to support their claim that Just-Mark Construction was negligent in the supervision and retention of defendant Jerry Valecko pursuant to the Restatement (Second) of Torts § 317 or to a general theory or negligence.

The instant case arises out of allegations that plaintiff — minor children were sexually assaulted by defendant Jerry Valecko on the premises of the construction site located in Ellwood City, Pennsylvania, defendant Just-Mark construction company was contracted by defendants orion and/or Rite Aid corporation as the general contractor for the construction of a Rite Aid Pharmacy located at 111 5th Street, Ellwood City, Pennsylvania. As the general contractor for the project, JMC was responsible for overseeing the work of the subcontractors hired to complete the project. On June 7, 2010, JMC hired valecko as their superintendant for the Ellwood City, project. As part of his job requirements, Valecko was required to be on-site everyday and supervise the subcontractors, schedule the subcontractors and provide daily reports on the progress of the project. Valecko worked at JMC as a superintendent until his termination on February 2,2011. According to Anthony Pivik, founder and part-owner of JMC, his son, Justin Pivik and another employee, Del Barr, were at the job site on one particular occasion on a Saturday in late January or early February of 2011. Justin Pivik testified that while working, he saw Valecko talking to a child, maybe 12-13 years old, in the parking lot of the construction site. When Valecko was asked who the child was, Valecko responded he was a “sidewalk superintendent.” Shortly after this incident Mr. Barr discovered that Valecko was a registered sex offender and was listed on the online Megan’s Law list. According to Ronald Speicher, JMC’s project manager for the drug store project, around the same time he received a call from one of the subcontractors advising that there were children at the job site. On the following Monday, Mr. Barr brought this information to the attention of Anthony Pivik, who promptly terminated Valecko’s employment at JMC that same day. JMC has acknowledged that valecko was fired because it was detrimental to have him as an employee. On that same day, Anthony Pivik also reported Valecko to the local police department.

After his arrest and subsequent firing from the company, Valecko admitted to sexually molesting three minor children in the construction trailer located on the site. At the time Valecko was hired by JMC, he had previously plead guilty to one count of indecent assault following a 1997 case in which he was placed on four years probation for fondling an eleven year old boy, had been fired from his previous job after being arrested and charged with molesting four other young boys and was a registered sex offender on the Commonwealth’s Megan’s Law website.

According to Valecko, shortly after beginning construction in October of 2004 he befriended minor plaintiffs John Doe #1, John Doe #2, and John Doe #3, children of plaintiff Jane Doe, all of Ellwood City. He allowed the minor plaintiffs and other neighborhood children to wander around the job site, climb on the construction equipment, and hang out in the construction trailer, which allegedly contained a video gaming system, children’s toys and games, pornographic materials, a video camera and miscellaneous living items. Valeclco’s molestations eventually resulted in his April 2005 arrest and guilty plea to involuntary deviate sexual intercourse with a child, indecent assault of a person less than 13 years of age and corruption of minors. According to the testimony, at least two subcontractors were aware of the inappropriate behavior on the park of Valecko; one stated that “kids followed him around like he was the pied piper,” and another described an incident in which he observed a young shirtless boy sitting on Valecko’s lap in the trailer, while several other shirtless underage males were also present.

Plaintiffs filed a complaint in the Court of Common Pleas of Lawrence County, Pennsylvania on March 26, 2009. The complaint names several defendants, including Just-Mark Construction Company. In their complaint, plaintiffs set forth a cause of action against JMC based on negligence. Specifically, plaintiffs claim that defendant JMC negligently retained Valecko as an employee when they knew or should have known that he was engaging in deviant sexual conduct with children. In a separate cause of action, plaintiffs also claim that JMC is liable under the Restatement (Second) of Torts §317. In this claim, plaintiffs assert that defendant JMC breached its duty to control Valecko when they knew, or should have known that he had criminal propensities. After the parties participated in discovery, defendant JMC has now filed a motion for summary judgment claiming that plaintiff has failed to establish that JMC is liable to plaintiffs for the negligent supervision and retention of defendant Jerry Valecko or liable pursuant to §317 of the Restatement (Second) of Torts, which governs an employer’s duties regarding employees acting outside of the scope of their employment.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa. Super. 2000)(citing Rush v. Philadelphia, Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may property enter summary judgment. Basile, Supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

First, defendant JMC contends that plaintiff has failed to present evidence to support their claim that JMC was negligent in their supervision and retention of defendant Jerry Valecko. Specifically, plaintiffs contend that JMC was negligent by failing to create and enforce regulations at the construction site, failing to properly monitor Valecko and by permitting him to engage in inappropriate sexual encounters with young male children despite numerous indications of his propensities and predisposition to do so.

It is well established that a claimant must demonstrate the following four elements to establish a claim for negligence: (1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risk; (2) breach of duty; (3) reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 654 (Pa. Super. 2002); Merlini ex rel. Merlini v. Gallitzin Water Authority, 602 Pa. 346, 354, 980 A.2d 502, 506 (2009). A party must first owe a duty in order for negligence to exist. See Atlhaus v. Cohen, 562 Pa. 547, 522, 756 A.2d 1166, 1168 (2000)(the primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff); Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 82, 890 (1994)(any action in negligence is premised on the existence of a duty owed by one party to another). In most cases, the question of whether a duty exists is a question of law and not fact. Huddelston v. Infertility Center of America, 700 A.2d 453 (Pa. Super. 1997).

With regard to duties owed by employers, the Supreme Court of Pennsylvania has held that employers may be held negligent for failure to exercise reasonable care in the hiring, retention or supervision of an employee if they knew or should have known that the employee had a propensity to commit criminal acts and that, by employing them, a third person may be in danger of harm. Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968). This duty on employers is inferred from the general duty placed on all persons not to put others at risk of harm by their own actions. Brezenski v. World Truck Transfer, Inc., 755 A.2d 36, 40 (Pa. Super. 2000). In Brezenski, the Superior Court noted:

An employer may be held negligent for the failure to exercise reasonable care in determining an employee’s propensity for violence in an employment situation when the violence would harm a third person. In these situations the victim must establish that the employer breached a duty to protect others against a risk of harm. When the victim does not enjoy a special relationship with the employer and is, in fact, a stranger, the duty owed may be inferred from the general duty imposed on all persons not to place others at risk of harm through their action. The scope of this duty is limited to those risks that are reasonably foreseeable by the actor in the circumstances of the case.

Brezenski, 755 A.2d at 40.

In describing negligence law as it relates to employers in their hiring, retention and supervision of employees the restatement of agency notes that:

The principal may be negligent because he has reason to know that the servant...because off his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. An agent, although otherwise competent, may be incompetent because of his reckless or vicious disposition, and if a principal without exercising due care in selection, employs a vicious person to do an act...he is subject to liability for harm caused by the vicious propensity. If liability results, it is because, under the circumstances, the employer has not taken the care which a prudent man would take in selecting the person for the business at hand. There is liability only to the extent that the harm is caused by the quality of the employee which the employer had reason to suppose would be likely to cause harm.

Restatement (First) of Agency §213, (d) Agent dangerous (1933).

In the instant case, JMC seeks summary judgment asserting that they should not be held liable for Valecko’s actions because there is insufficient evidence to show that JMC knew dr should have known that Valecko was acting inappropriately with the minor male children. JMC contends there is no evidence sufficient to show that JMC knew or should have known that Valecko was engaging in inappropriate behavior while employed as a superintendent at the Ellwood City job site. JMC asserts that from the time that Valecko was hired on June 7, 2010 to the date of his termination on February 2, 2011, JMC was completely unaware of any sexual contact occurring at the job site. In fact, with the exception of Justin Pivik, every employee of JMC that visited the job site during Valecko’s employment testified that they did not see any children or evidence of children. JMC contends that they only became aware of the presence of children in the vicinity of the job site a few days prior to Valeclco’s termination when Justin Pivik witnessed Valecko having a conversation with a child in the parking lot on a Saturday. Justin Pivik testified that he did not find this unusual and that any concern he had was related to the safety of a child at or near an active construction site. At no point did this conversation give him pause or reason to infer that something inappropriate was occurring. Shortly after Justin Pivik witnessed the conversation between Valecko and the child in the parking lot, Del Barr discovered that Valecko was a registered sex offender on Megan’s list. Upon discovering this information, Del Barr immediately brought it to the attention of Anthony Pivik, part-owner of JMC, who then made the decision to promptly terminate Valecko’s employment. Additionally, Valecko confirms in his affidavit that the subcontractors on the job site, the employees and the owners of JMC were all unaware of any inappropriate conduct or inappropriate activities occurring between himself and the children.

Plaintiffs contend that various subcontractors were aware of Valecko’s inappropriate and predatory behavior and, therefore, JMC had constructive notice. Plaintiffs contend that universally, every subcontractor working on the job site thought that it was unusual that there were kids on the job site and in the job trailer on a daily basis. One of the subcontractors testified that he saw kids on the job site outside playing and catching footballs and he saw the kids go into the job trailer on numerous occasions and there was always one boy in particular boy who lived across the street. Another subcontractor testified that he saw Valecko on the job site with kids every day and that the kids followed Valecko around like the pied piper and that they would spend time alone with Valecko in the job trailer. John Halliday, a plumbing subcontractor who spent time on the job site testified that he saw kids in the building, on the scissor lifts and in the trailer. He stated that when he walked into the trailer kids would be sitting around with Valecko and occasionally Valecko would leave the job site and then come back with the children.

Timothy Taylor, one of the subcontractor employees working at the job site, testified that he noticed children on the job site every day. Mr. Taylor recalled commenting about this unusual behavior to his employer. Mr. Taylor specifically recalled one particular incident wherein he walked into the job trailer and found a young boy between the age of eight and nine sitting on Valecko’s lap without a shirt on. According to Mr. Taylor, he also found it unusual that Valecko kept a blanket and pillow in the job trailer. He also stated that when he learned Valecko was fired because he was a registered sex offender he was not surprised because it was obvious that Valecko was interested in little boys. Plaintiffs contend that there was nothing that would have prevented someone from JMC from seeing what was going on with Valecko and the young boys at the job site if they had showed up more often and at times later in the day. According to Mr. Taylor, Valecko never hid his conduct towards the young boys he permitted onto the construction site and into his job trailer.

Plaintiffs’ contend that they Pennsylvania superior court’s holding in Heller v. Patwil Homes, Inc., 713 A.2d 105 (Pa. Super. 1998) is instructive to the matter presently before the court. In Heller, William Strouse, an employee of Patwil Homes, fooled prospective home buyers through an investment scheme. Strouse utilized the offices of Patwil Homes, Inc. to solicit prospective home buyers to invest with him so they could upgrade the model home they intended to buy. Strouse made the solicitations in his Patwil Homes office and claimed, the scheme was endorsed by his employer. Strouse operated out of the employer’s shop and enticed clients under the promise of generating money to build their dream homes with Patwil Homes. Strouse’s clients were cultivated while he was an employee of the defendants, and Patwil Homes was an inducement to investment in the hope of generating money to erect or defray the cost of a Patwil Home. All of this was accomplished on company property, using company resources, and under the guise of advancing the company’s interests. In their analysis, the Superior Court stated:

We find the total absence of supervision once on the job exposes the employer/defendants to “constructive notice” that Strouse was engaging in activity mushrooming into criminal behavior leading to his incarceration. In the exercise of ordinary care, we hold the defendants should have known of Strouse’s conduct manifesting itself in the fleecing of Patwil Homes’ clients operating out of the Nittany Mall office over a period of two months and in plain view of anyone interested enough to engage in a modicum of managerial supervision of a new hire responsible for sales of property exceeding $100,000.

Heller, 713 A.2d at 108.

In the instant case, plaintiffs contend that JMC should have known of Valecko’s conduct on the job site wherein he showed a particular interest in young boys and signs of criminal behavior in plain view of anyone there to supervise. Evidence that is sufficient to put an employer on notice of an employee’s criminal propensities after hiring him supports a valid negligent retention claim. Dincher v. Great Atlantic & Pac. Tea Co., 356 Pa. 151, 51 A.2d 710 (1947). In McBride v. Hershey Chocolate Corp., 200 Pa. Super. 347, 188 A.2d 775 (1963), the employer was found liable for negligently supervising and retaining an employee who sprayed the plaintiff/ employee in the face with a pressurized water hose after plaintiff had complained about the employee to a supervisor that the employee was constantly belittling him and that the employee did anything he could in attempts to instigate a fight. In McBride, the plaintiff did not allege that Hershey Corporation knew of the employee’s dangerous propensities prior to hiring him. After a finding that there were numerous reliable indications of the employee’s violent tendencies in relation to the plaintiff, the court found the employee’s subsequent assault to have been reasonably foreseeable by Hershey. This case is similar to the case at hand, as plaintiffs have produced evidence that various subcontractors were aware of highly unusual and inappropriate behavior on the part of Valecko.

The evidence currently before the court creates a question of fact relative to the issue of whether JMC knew or should have known that Valecko was acting inappropriately with the minor male children. Plaintiff has provided testimony by several subcontractors on the job site who stated that Valecko had male children on the job site on a daily basis and that Valecko never hid his conduct towards the young boys he permitted onto the job site and into his trailer. Nothing prevented JMC from coming on to the job site more often to supervise their employees. Under the Restatement of Agency, the principal may be negligent because he has reason to know that the servant, because off his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. Restatement (First) of Agency §213, (d) Agent dangerous (1933). In Coath v. Jones, 277 Pa. Super. 479, 419 A.2d 1249 (1980), the Pennsylvania Superior Court held that an employer could be held negligent for selecting an alleged rapist as an employee where it was foreseeable that the employee could attack a customer, even after the employee had been terminated where the employer should have known that the employee would gain access to a woman’s house under the guise of performing duties for the employer and sexually assaulted her.

In the instant case, according to the various subcontractors’ testimony, Valecko did not hide his conduct on the j ob site and was often seen spending time with young boys around the j ob site and in his work trailer. While JMC argues that they were not aware of the children on the job site and had no suspicions of any inappropriate sexual acts occurring during the work day or after hours, plaintiffs have produced sufficient evidence for a jury to infer that that JMC had constructive notice of Valecko’s conduct and that the ensuing molestations were reasonably foreseeable. Considering the testimony by the various subcontractors that children were constantly playing at the site and were in and around the construction trailer, and that the kids following Valecko around like he was the pied piper, it is feasible that a trier of fact would infer that JMC should have known that Valecko was acting inappropriately with the male children; hence making Valecko’s actions reasonably foreseeable and consequently creating a duty on the part of JMC to prevent those actions from occurring. Plaintiff has produced sufficient evidence for a jury to find that JMC had constructive notice of Valecko’s intentions and propensities and to find that JMC breached its duty owed, by failing to take steps to ensure that Valecko’s inappropriate activities were not occurring at the job site. Therefore, the plaintiff has presented sufficient evidence to establish a question of fact as to whether JMC knew or should have known about the Valecko’s improper behavior, which has caused harm to the minor children. As such, defendant’s motion for summary judgment for the negligent supervision and retention of Jerry Valecko is denied.

Next, defendant JMC contends they are entitled to summary judgment because the evidence of record fails to support a claim under §317 of the Restatement (Second) of Torts. Count three of plaintiff’s complaint sets forth a claim against JMC pursuant to §317 of the Restatement (Second) of Torts, which governs an employer’s duties regarding employees acting outside of the scope of their employment. Section 317 governs employer duties regarding employees acting outside the scope of their employment and provides as follows:

§317. Duty of master to control conduct of servant
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if:
(a) The servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) The master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts, §317 Duty of Master to Control Conduct of Servant.

Subsection (b)(ii) requires that the master or employer have actual or constructive notice of the necessity and opportunity for exercising such control. To fasten liability upon an employer under Section 317, it must be shown that the employer knew, or in the exercise of ordinary care, should have known of the necessity for exercising control of his employee. See Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 570, 246 A.2d 418, 422 (1968). An employer cannot be held liable unless the employer had knowledge of its employee’s previous acts that are of the same nature or type that gave rise to the eventual injury. See Dempsey, 246 A.2d at 422 (an employer is liable when an employee performs an act and such act is one of a series of the same kinds of acts of which the employer had knowledge and in which it acquiesced, and if such act of the employee is in its nature dangerous, then the employer is liable to one injured by its employee). Thus, plaintiffs must show that defendant JMC either knew or should have known that Valecko was engaging in sexually deviant behavior with the minor children at the job site.

In McBride v. Hershey, supra., the plaintiff suffered severe injuries when a fellow employee seized a hose and discharged a scalding mixture of steam and water directly on his face, arms and chest. 200 Pa. Super. 347, 348, 188 A.2d 775, 776 (1963). The Pennsylvania Superior Court found that liability under Section 317 may be imposed since the employer knew or had reason to know that such an assault would occur. Specifically, the evidence on record in the case demonstrated that the two co-employees had an on-going feud for over eight years, which the employer was aware of. Id. at 350, 188 A.2d at 780. In addition, it was found that the employer knew that the assaulting employee frequently made belligerent remarks to the co-employee in an effort to instigate a fight. Id. Finally, the employer’s foreman was aware that the assaulting employee had committed the same act on a previous occasion. Id. at 348, 188 A.2d at 778. See also Hutchinson ex rel. Hutchinson v. Buddy, 560 Pa. 51, 742 A.2d 1052, 1059 (1999)(finding that diocese had a duty under § 317 to prevent priest from molesting more children where diocese knew that priest had engaged in pedophilic behavior in the past).

Here, plaintiff contends that all of the elements of the Restatement (Second) of Torts §317 are satisfied. Valecko was the servant of JMC. He was on the premises in the possession and control of JMC and was privileged to be there only as a servant to JMC. JMC knew or had reason to know that they had the absolute ability to restrict or limit. Valecko’s access to the job site and his use of the job site and knew or should have known that such restrictions were necessary given that Valecko constantly had children with him at the job site and in his work trailer. Plaintiff contends that it is undisputed that JMC had the ability to control Valecko and knew of the necessity and opportunity to control him on the job site and failed to exercise that control.

According to JMC, once they became aware that Valecko was a registered sex offender on the sexual offender registry, they immediately terminated Valecko’s employment and reported him to the local police. According to the testimony of Ronald Speicher, JMC’s project manager, JMC terminated Valecko once they were aware he was on the sexual offender registry because it was a detriment to have him as an employee because he was a convicted child molester, and not because he was an incompetent foreman or simply for allowing children on the job site. Mr. Speicher testified that after firing Valecko, he and the owner of JMC went to the Ellwood City Police Department and reported that they had just fired Valecko from his position with JMC because of his status on the sexual offender registry and they were uncomfortable with so many children being around the area.

This court finds that since JMC exercised control immediately after became aware ofValecko’s prior criminal history, the inquiry becomes whether JMC should have known, or did they have reason to know, ofValecko’s past and should they have taken affirmative steps sooner so as not to create an unreasonable risk of bodily harm the minor children. That answer turns on when it became reasonable for JMC to be aware that children were being molested on the job site. This is a factual inquiry for the jury. Valecko molested the minor plaintiffs on the premises in control of the employer, and, as previously discussed did so while acting outside the scope of his employment. Because this court has already addressed the possibility that a reasonable jury may infer that JMC should have known of Valecko’s actions, both prerequisites of §317 have been met. Accordingly, it cannot be said as a matter of law that plaintiffs cannot recover based on a §317 negligence theory. It was Valecko’s position as the construction site foreman that provided him with the means and access to spend time with the minor children and ultimately engage in sexual activity on the grounds of the employer. Valecko was able to groom the children because he had access to the job site and job trailer and the abuse itself occurred at the construction site. It is for the jury to determine if JMC was negligent under §317 because they should have known Valecko was molesting children at the job site. Under §317, a reasonable jury could conclude that JMC knew or should have known of Valecko’s actions, but nevertheless failed to exercise reasonable care to prevent Valecko, acting outside the scope of his employment, from intentionally harming the young boys while on the construction site.

For the reasons set forth in this opinion, the defendant’s motion for summary judgment is denied.

ORDER OF COURT

And now, this 12th day of June, 2014, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the motion for summary judgment of defendant Just-Mark Construction Co. is denied.


source: Caselaw Access Project

author: GRAY, J.,

license: Public Domain

text:
    Marzo v. Street
    C.P. of Lycoming County,
    No. 13-02828

      Kristin L. Waltz, for plaintiff.

      Ryan M. Tira and Michael Mussina, for defendants.
    June 12, 2014
   GRAY, J.,

This matter comes before the court on defendant, Vanessa K. Street’s, preliminary objections in the nature of a demurrer. Street objects to the complaint for failure to state a cause of action for partition Pa. R.C.P. 1551 et. seq. and for a proportionate share of the fair market rental value pursuant to68P.S.§101. After review of the objections, response, argument, pleadings, and briefs, the court overrules the objections. The court enters the following opinion and order.

Procedural and Factual Background

Plaintiff Benjamin P. Marzo invokes the equitable powers of the court to seek partition of real property pursuant to Pa.R.C.P. 1551 et. seq. Marzo claims an equitable interest in real property arising from an Article of Agreement executed on August 15, 2003. The Article of Agreement involves the purchase of real property known as 1850 Hayes Lane, Williamsport, located in Loyalsock Township (known as Lycoming Tax Parcel No. 26-022-307), recorded at Book 4692 at Page 90 (“property”). Marzo and Street entered an Article of Agreement to purchase the property from defendant Barbara D. Schramm, who was and still is the record owner of the property.

Under the Article of Agreement, Schramm agreed to sell and convey the property to Marzo and Street for $98,000 to be paid within 15 years, together with interest on all unpaid balances of principal. This amount was payable in one hundred eighty (180) monthly installments of $826.98 until full payment of principal and interest has been made. Upon payment of $98,000, Schramm would execute and deliver a deed conveying the property in fee simple free from encumbrances. See, Article of Agreement, complaint, exhibit “A” (emphasis added). The agreement reserved the right to demand payment in full upon 30 days’ notice once the 60th payment had been made. The agreement provided for late fees and the right for anticipated payments in full and part. The agreement required prior written consent for assignment. The agreement required that proof of payment of real estate taxes and insurance be provided to Schramm within 30 days of payment.

Since November 2007, Street has retained exclusive possession of a unit at the property. The property contains a residential building with 3 rental units. Street resides in the largest portion of the building, consisting of a 2 story, 3 bedroom unit. The fair market value of the property is at least $160,000. The outstanding balance owed under the article of agreement is approximately $40,000. Marzo and Street resided in the property together from 2003 until November 2007.

Marzo seeks partition of the property, including a sale and owelty. The wherefore clause in Marzo’s complaint requests the following relief:

a) The court decree partition of the property;
b) The court direct that a master be appointed to make such examinations and hold such hearings, and to conduct a private or public sale of the property pursuant to the Pennsylvania Rules of Civil Procedure governing partition actions; and
c) Such other relief as the court deems to be appropriate.

• Defendant Schramm has not filed any obj ection or pleading objecting to the partition.

Legal Standards

Preliminary Objections

1. A party may file preliminary objections based on the legal sufficiency or insufficiency of a pleading (demurrer) pursuant to Pa. R.C.P. 1028(a)(4).

2. A demurrer tests the legal sufficiency of the complaint. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 714 (Pa.Super. 2005).

3. When reviewing preliminary objections in the nature of a demurrer, the court must “accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012), citing, Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007).

4. “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)(emphasis added).

Partition

5. Pa. R.C.P. 1553 provides that an “action for partition may be brought by any one or more co-tenants.”

6. A complaint for partition must include a description of the property and “a statement of the nature and extent of the interest of each party in the property.” Pa. R.C.P. 1554.

7. It has long been the case that “equitable title is sufficient in Pennsylvania to recover upon in partition.” Willing v. Brown, 7 Serg. & Rawle 467, 1822 Pa. LEXIS 233 (Pa. 1822); see also, Blumner v. Metropolitan Life Ins. Co., 66 A.2d 245, 248 (Pa. 1949) (“It is well settled that an equitable estate may be partitioned”); see also, Hirschberg v. Molinelli, 27 Pa. D. & C. 5th (C.P. Monroe 2012), affirmed, 53 A.2d 929 (Pa. Super. 2012)(demurrer overruled where party seeking partition pleaded an equitable interest in the property with specific averments.)

8. If the court finds that the property is not capable for division without prejudice to or spoiling the whole, the court can direct that the property be sold in accordance with Pa. R.C.P. Rule 1563.

9. The court shall determine the “credit which should be allowed or the charge which should be made, in favor of or against any party because of use and occupancy of the property, taxes, rents or other amounts paid, services rendered, liabilities incurred or benefits derived in connection therewith or therefrom.” Pa. R.C.P. Rule 1570.

10. With respect to real estate held by two or more tenants in common, 68 PS. § 101 provides that “it shall be lawful for any one or more of said tenants in common, not in possession, to sue for and recover from such tenants in possession his or their proportionate part of the rental value of said real estate for the time such real estate shall have been in possession as aforesaid; and in case of partition of such real estate held in common as aforesaid, the parties in possession shall have deducted from their distributive shares of said real estate the rental value thereof to which their co-tenant or tenants are entitled.” 68 P.S. § 101 (emphasis added)

Discussion

The court concludes that Marzo plead facts sufficient to seek the relief requested pursuant to Pa. R.C.P. 1551 et. seq. It has long been established that an equitable interest in real property is sufficient to recover in partition. See, e.g., Willing v. Brown, 7 Serg. & Rawle 467, 1822 Pa. LEXIS 233 (Pa. 1822); see also, Blumner v. Metropolitan Life Ins. Co., 66 A.2d 245, 248 (Pa. 1949); see also, Hirschberg v. Molinelli, 27 Pa. D. & C. 5th (C.P. Monroe 2012), affirmed, 53 A.2d 929 (Pa. Super. 2012). A complaint in partition must include a description of the property and a statement of the nature and extent of the interest of each party in the property. Pa. R.C.P. 1554. A decision and order in partition must include a finding of fact as to credits for use and occupancy, and must include whether owelty is required and the amount required. Pa. R.C.P. 1570.

In the instant case, Marzo plead sufficient facts for the relief requested in partition pursuant to Pa. R.C.P. 1551 et. seq. Specifically, Marzo plead that he has an equitable interest in real property pursuant to an article of agreement which was duly recorded against the property. Marzo included a description of the property and provided a statement of the nature and extent of the interest of each party in the property. Marzo alleged that over 50% of the payments due under the agreement have already been made. Marzo further averred that street has been using and occupying part of the property to the exclusion of Marzo since November 2007. The relief sought by Marzo is that which the court is required to address in a decision and order rendered pursuant to Pa. R.C.P. 1570. Accordingly, this matter is not clear and free from doubt to warrant a dismissal; Marzo has sufficiently plead facts in support of the relief requested.

The court further concludes that 68 P.S. § 101 does not bar Marzo from seeking relief pursuant to partition, such as the proportionate share of fair market rent from real estate to which Marzo claims an equitable interest. The court notes that Marzo sought relief pursuant to partition Pa. R.C.P. 1551 et. seq. and did not seek relief pursuant to 68 P.S. §101. 68 P.S. §101 provides a cause of action for an out-of- possession tenant in common to .seek a proportionate part of the fair market rental value of real estate from the in-possession tenant in common. Significantly, a tenant in common may sue pursuant to 68 P.S. § 101 without seeking partition. However, in cases of partition, the rental value awarded pursuant to 68 P.S. § 101 shall be deducted from their distributive shares as appropriate given shares of any co-tenant or tenants. The court concludes that while 68 P.S. § 101 prescribes that the fair market rent awarded pursuant to 68 P.S. § 101 in cases of partition shall be deducted from distributed shares, it does not limit who may seek partition pursuant to Pa. R.C.P. 1551 et. seq. nor does it limit the type of relief available in partition. Instead, it provides a cause of action separate and apart from partition which Marzo did not pursue.

ORDER

And now, this 12th day of June, 2014, upon consideration of defendant’s preliminary objections, it is hereby ordered and directed that defendant’s objections are overruled. Defendants shall fine and answer within twenty days pursuant to Pa. R.C.P. 1028(d). A separate scheduling order will be entered separately placing this matter on the court’s September 2014 trial term.

      . At argument, counsel for defendant Schramm stated that Schramm does not oppose partition.

      . Since Marzo did not file a complaint or cause of action pursuant to 68 P.S. § 101, Street’s demurrer to such a cause of action is overruled. Street’s further statement in that demurrer that there are no provisions under the law to seek a proportionate share of the fair market rental value of a property is discussed further in the body of the opinion.


author: MINORA, J.,

text:
    Roche Supply, Inc. v. O’Hara

      C.P. of Lackawanna County,
    No. 2013 CV 4057

      John I. Siejk, for plaintiff.

      Bruce L. Phillips, for defendants.
    June 26, 2014
   MINORA, J.,

(1.) Plaintiff Roche Supply, Inc. (hereinafter “Roche”) presents a seven count civil collection complaint, based upon written instruments that is subject to preliminary objections by defendants James T. O’Hara, Individually (hereinafter “JTOH”) and James T. O’Hara, Inc. (hereinafter “JTOH, Inc.”). For the reasons that follow, all preliminary objections are overruled, denied and dismissed.

(2.) The cause of action arises out of a collection contract for goods sold between Roche and JTOH, Inc. As a condition precedent to these transactions, Roche and JTOH, Inc. entered into a credit application and sales agreement along with an individual guarantee by JTOH. (See exhibits A and B of plaintiff’s pleadings).

Plaintiffs Amended Complaint

(3.) Roche filed an original complaint which drew preliminary objections by defendants. Roche then amended as of course per our civil rules and the seven count amended complaint also drew a second set of preliminary objections by the defendants which are the subject of this opinion.

(4.) The first count of the amended complaint sounds in breach of contract based upon the above referenced credit application and sales agreement. It alleges the contract breach, the amount claimed and the interest rate per contract on the unpaid balance. JTOH, Inc. does not object to count I.

(5.) Count II of Roche’s amended complaint sounds in, “breach of implied in law contract — unjust enrichment.” It incorporates all the earlier allegations of JTOH, Inc.’s receipt of goods and non-payment for same along with new allegations that JTOH, Inc. received the goods and used them for it’s benefit and to the detriment of the plaintiff thus unjustly enriching JTOH, Inc.

(6.) Count III of Roche’s amended complaint sounds in, “breach of implied in fact contract — quantum meruit.” This count likewise incorporates the earlier allegations of JTOH, Inc.’s receipt of goods and non-payment of same along with new allegations that JTOH, Inc. should appreciate that the goods Roche delivered to JTOH had value and that JTOH, inc. should recognize they would then have a responsibility to pay for the same. In the face of this and a continued non-payment, JTOH, Inc. has breached the contract implied in fact.

(7.) Count IV of Roche’s amended complaint sounds in, “account stated.” This count is also incorporates all the previous allegations and adds that Roche has sent numerous invoices of JTOH, Inc. demanding payment for goods sold. Further, it is alleged JTOH, Inc. never disputed the amounts sought therefore, it concludes that JTOH, Inc. owes Roche the amount sought plus interest at the rate of 1.5% per month, service charges, collection costs and attorneys fees plus all other amounts allowed per the credit application and sales agreement at law. JTOH, Inc. does not object to count IV.

(8.) Count V of Roche’s amended complaint sounds in, “negligent misrepresentation.” It incorporates all earlier allegations and also adds that Roche relied upon JTOH’s written and oral representations regarding his creditworthiness, ability to pay, character, judgment and intention to pay for the goods sold. The count goes on to allege that JTOH knew or should have known his representations when made to Roche were untrue and that Roche would rely upon them. Roche did reply upon JTOH’s negligent representations and suffered harm and therefore, JTOH owes Roche for the harm Roche suffered.

(9.) County VI of Roche’s amended complaint sounds in, “fraudulent misrepresentation.” This count, like all others, incorporates all earlier allegations and also adds that Roche relied upon JTOH’s written and oral misrepresentations regarding his creditworthiness, ability to pay, character, judgment and intention to pay for the goods sold. This count further alleges that JTOH knew his representations to Roche were untrue and further JTOH knew that Roche would rely upon them to his detriment. Based upon this, Roche extended credit to JTOH, Inc. JTOH’s company and Roche sustained harm based upon JTOH’s intentional fraudulent misrepresentation.

(10.) Count VII of Roche’s amended complaint sounds in, “PA Contractor and subcontractor payment act.” This last count concludes with the same pattern of incorporating all earlier allegations made into the count. Additionally, this final count alleges that JTOH and/or JTOH, Inc. fit the statutory definition of contractor and/or a person authorized or engaged by an owner to improve real property. Alternatively, Roche argues they would fit similarly under the statutory definition of subcontractor or one working as a subcontractor to improve real property. Roche then invokes the provisions of the Pennsylvania contractor and subcontractor payment act to the facts alleged in his amended complaint.

Preliminary Objection

(11.) Despite the fact that Roche’s amended complaint contains seven counts, defendants JTOH, Inc. and JTOH have chosen to object to four counts only. Since the objections only apply to Roche’s amended complaint counts II, III, V and VI, we shall confine our analysis to those areas to which defendants object.

(12.) Defendants collectively first objected to both counts II and III pursuant to Pa. R.C.P. 1028(a)(2) and (a) (3) which allows preliminary objection for, “(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter.” Pa. R.C.P. 1028(a) (3) permits preliminary objection where there is, “(3) insufficient specificity in a pleading.” The substance of the objection raised by defendants is that Roche’s complaint is a breach of contract action arising out of the written “credit application and sales agreement.” Therefore, the gist of Roche’s action is a breach of contract based upon a violation of a written instrument. As such defendants claim that a breach of implied in law contract — unjust enrichment at count II and breach of implied in fact contract — quantum meruit at count III are improper since they change the gist of the action since both are equitable remedies to be invoked only in the absence of a written agreement.

(13.) Similarly, defendants next collectively object to both count V and VI pursuant to Pa. R.C.P. 1028(a)(2) and 1028(a)(4) Pa. R.C.P. 1028(a)(2) has already been referenced above at paragraph twelve.

(12). Pa. R.C.P. 1028(a)(4), references, “legal sufficiency of a pleading (demurrer).” The substantive objections are similar to those raised above. Defendants state that the gist of Roche’s action is breach of written contract and breach of a written guarantee agreement contained within the “credit application and sales agreement.” Counts V and VI of Roche’s amended complaint sound against JTOH individually and state claims based upon negligent misrepresentations and fraudulent misrepresentations by JTOH in his individual capacity. JTOH objects stating that any alleged misrepresentations are tort claims contrary to JTOH’s gist of the action as a breach of contract claim based upon written instrument.

Governing Law

(14.) For the reasons set forth below, all defendants’ preliminary objections are misplaced and inappropriate at this juncture and will be overruled, denied and dismissed. Pennsylvania is a fact pleading state and “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa. R.C.P. 1019(a).

(15.) It is well established that preliminary objections which seek to dismiss a complaint such as a demurrer under Pa. R.C.P. 1028(a)(4) can only be properly granted if the contested pleading on its face is legally insufficient.

(16.) Preliminary objections in the nature of a demurrer require the court to resolve issues SOLELY on the basis of the pleadings and NO TESTIMONY OR OTHER EVIDENCE OUTSIDE OF THE COMPLAINT MAY BE CONSIDERED TO DISPOSE OF THE LEGAL ISSUES PRESENTED BY THE DEMURRER. All material facts set forth in the pleading and all reasonable inferences reasonably deducible therefore must be admitted as true. [Emphasis added]. See Kirschner v. K&L Gates, LLP, A.3d, 2012 WL 1662075 (Pa. Super. 2012). [Internal citations omitted].

(17.) In determining whether to grant preliminary objections, we can only look to the COMPLAINT together with any documents or exhibits attached thereto, in order to evaluate the sufficiency of the facts contained therein. The impetus of our inquiry is to determine the legal sufficiency of the COMPLAINT alone and whether the COMPLAINT alone would permit recovery if ultimately proven. Such preliminary objections can only be sustained where the case is clear and free from doubt. Kirschner v. K&L Gates, LLP, supra. See also Bavada Nurses, Inc. v. Com. Dept. of Labor and Industry, 8 A.3d 866 (Pa. 2010).

(18.) With these standards in mind, we now examine whether Roche has properly pleaded causes of action for negligent misrepresentation and fraudulent misrepresentation. Roche’s complaint alleges that both JTOH and JTOH, Inc. breached duties imposed upon them by their mutual consensus and agreement. The allegations in counts V and VI factually allege that fraud in the application process at the outset of the written agreement and guaranty fraudulently induced Roche to enter into these agreements. {See amended complaint).

(19.) Roche alleged that both defendants made financial misrepresentations to him. Roche alleges these financial misrepresentations were fraudulent; they were material to the transactions; that defendants intended that Roche rely upon these fraudulent misrepresentations and that this reliance caused Roche to suffer harm. This represents the elements necessary to plead fraudulent misrepresentation Shane v. Hoffman, 324 A.2d 532 (Pa. Super. 1974); Restatement of Torts § 525-552. Fraudulent herein requires defendants possess scienter. Ibid.

(20.) When you substitute the term “negligent” for fraudulent in paragraph 22, second sentence, you have also pled negligent misrepresentation.

(21.) Since both types of misrepresentation, fraudulent and negligent, are properly plead, the objections by JTOH and JTOH, Inc. under Pa. R.C.P. 1028(a)(4) must fail. The amended complaint presents and pleads, in a legally sufficient manner, both types of fraudulent misrepresentation.

(22.) Defendant’s objections per Pa. R.C.P. 1028(a)(2) raise the gist of the action doctrine as barring counts II and III as well as V and VI because with regard to Roche’s counts II and III defendants substantively objects to plaintiffs pleading unjust enrichment and quantum meruit as being barred when suit is brought based upon a writing. Regarding Roche counts V and VI, JTOH individually objects to individual liability as being violative of the gist of the action doctrine converting a breach of contract action based upon a written instrument into an intentional tortuous action.

Legal Standard

(23.) Pa. R.C.P. 1019(a) requires that the material facts upon which a cause of action is based be stated in a concise and summary from and be sufficiently specific as to enable a defendant to prepare a proper defense.

(24.) Pa. R.C.P. 1028 governs preliminary objections and Pa. R.C.P. 1028(a)(2), (3) and (4) have been raised by defendants herein. As noted, 1028(a)(2) deals with the failure of a pleading to conform to law or rule of court. Pa. R.C.P. 1028(a)(3) deals with insufficient specificity in a pleading and Pa. R.C.P. 1028(a)(4) deals with legal insufficiency in a pleading (demurrer).

(25.) As first glance, defendant’s objections under the gist of the action regarding a written instrument not allowing for unjust enrichment and quantum meruit and tortuous conduct not being allowed in a contract action have some surface appeal.

(26.) On further research and reflection however, these arguments of defendants fail both procedurally and substantively. From a procedural standpoint, preliminary objections should not be sustained unless it appears with certainty that the law would permit no recovery. Bavada Nurses. Inc. v. Com. Dept. of Labor and Industry, 958 A.2d 1050, 1053 (Pa. Cmwlth. 2008). As noted here, the substance of drafting in Roche’s counts II, III, V and VI is not being questioned. The coupling of Roche’s counts of torts or equitable actions with a breach of contract action is the substance of defendant’s objection. If there exists any doubt as to whether preliminary objections should be granted it should be resolved in favor of overruling the objection. Sheffield v. Dept. of Corrections, 894 A.2d 836 (Pa. Cmwlth. 2006).

(27.) In reviewing preliminary objections in the nature of a demurrer, the material facts set forth in the pleading and all inferences reasonably deductible therefrom must be admitted as true. Cooper v. Frankford Health Care System, Inc., 960 A.2d 134 (Pa. Super. 2008) appeal denied 970 A.2d 431 (Pa. 2009). A demurrer objection required the court to resolve the issues solely on the basis of pleadings. Id.

(28.) Finally, from a procedural standpoint, Pa. R.C.P. 1020 entitled, “Pleading More Than One Course of Action. Alternative Pleading. Failure to Join. Bar” at subparagraph (a) specifically permits a plaintiff to plead more than one cause of action. Pa. R.C.P. 1020(a) states:

“(a) The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.”

(29.) Further at Pa. R.C.P. 1020(c) it states that, “causes of action and defenses may be pleaded in the alternative.

(30.) On a substantive note, while the case of Braun v. Wal-Mart Stores, Inc., 24 A.3d 875 (2011) does stand for the proposition noted by defendants that the doctrine of unjust enrichment is inapplicable when the relationship between parties is founded on a written agreement or express contract. Such an objection being raised at the preliminary objection phase is premature. Our only concern here is whether the plaintiff pleads his alternative pleadings or counts in a legally correct fashion or format. This narrow concern arises out of our focus only in the pleadings. Neither defendant has yet to file an answer. Hypothetically they could deny they signed the contract in their answer and the written instrument count could fail thus mooting or voiding any gist of the action issue. The objection noted here is more properly raised on summary judgment after the conclusion of discovery. Even at that stage however, plaintiff’s right to amend their cause of action is to be liberally granted and at the resting of Roche’s case at trial they can move to amend their case to conform to their proof at trial. Accordingly, all of these gist of the action arguments raised by JTOH and JTOH, Inc. are dismissed and denied as not appropriate to raise at the preliminary objection juncture.

(31.) This same argument addresses the Defendant’s argument raised in Mirizio v. Joseph, 4 A.3d 1073 (2010). In Mirizio, at page 1084, our Superior Court stated,

“...in determining whether a particular tort claim is barred by the gist of the action doctrine the central analysis is whether the claim is based on contractual duties or conversely whether the contract is collateral to the tort claim that is based on duties imposed by larger societal policies embodied in the law of torts.”

Further in Mirizio, Ibid, at page 1085 the Superior Court concluded, “...we conclude that Mirizio’s actions constituted fraud in the inducement and therefore the claim for fraud and misrepresentation was not barred by the gist of the action doctrine.”

(32.) Roche adequately plead that JTOH individually and on behalf of JTOH, Inc. has made improper misrepresentations in the credit application and sales agreement and in the guarantee agreement. Roche has pled a scheme by both defendants to induce Roche to offer JTOH, Inc. credit and access to his goods based upon same. Therefore, the gist of Roche’s fraud claim sounds in fraudulent inducement by both JTOH and JTOH, Inc. to induce Roche to enter into the written document at issue. The performance of defendant’s duties under the agreement is essential to the inducement of Roche by both defendants.

Accordingly, the fraud claim is not barred by the gist of the action doctrine. Accordingly, we conclude that Roche’s fraud claims at counts V and VI are not barred by the gist of the action doctrine. Mirizio, Ibid, at 1087.

ORDER

And now to wit, this 26th day of June 2014, all defendants’ preliminary objections to Roche’s complaint are overruled, denied and dismissed. Both defendants are ordered to file their answer on the merits within twenty (20) days of the date of this order.


author: O’DELL-SENECA, P.J.,

text:
    Cservak v. Pa. Department of Transportation

      C.P. of Washington County,
    No. 2013-1361
    July 2,2014
   O’DELL-SENECA, P.J.,

The matters on appeal are the result of a jury verdict rendered on April 2, 2014, in favor of plaintiffs Frank J. and Judith Barie Cservak (hereinafter “Cservaks”) and against defendant Pennsylvania Turnpike Commission (hereinafter “the Commission”) awarding $704,500 as Fair Market Value of the Cservak real estate, and $597,000 as a Replacement Housing Supplement (RHS). This court molded the verdict to the amount of $701,500.

In September 2009, defendant contacted the Cservaks to inform them that their home — 3852 Morganza Road, Cecil Township, Washington County, PA 15317 — would be taken pursuant to the Eminent Domain Code. The parties haggled over the value of the property until February 2012, when the commission filed a declaration of taking with this court. Plaintiffs requested a board of viewers, and the same filed an amended report on November 20, 2013, which found that the commission owed the Cservaks $579,500. The commission appealed, and a jury trial was held before this court.

DEFENDANT’S MATTERS COMPLAINED OF ON APPEAL

Testimony of Brian Kelly

Defendant complains that the Cservak’s witness Brian Kelly should not have been permitted to testify based on his appraisal which treated the condemned property as two tracts of land. This court will not consider the merits of same, as the commission’s objection was untimely and are therefore waived. Defense counsel listened to plaintiff’s entire direct examination of Mr. Kelly without objection. Only after defendant conducted substantial cross examination and pursued the same line of questioning, did defendant object. (T.T. Vol. 2, 284:12-13). A party who “fail[s] to object in the first instance to such questioning and then pursue [s] the same line of questioning itself. . . cannot sit idly by during the introduction of evidence both by the adversary and itself and then when the responses are not to its liking attempt to erase from the record such evidence.” Evans v. Otis Elevator Co., 168 A.2d 573, 579-80 (Pa. 1961). Accordingly, the issue is waived.

Jury’s Calculation for Replacement Housing Supplement (RHS) Damages

The commission next contends that the jury erred in its award of RHS damages, because the figure was premised upon the cost of building a replacement home “which is inapplicable under the code and the relocation act when a comparable replacement dwelling is available on the private market.” Concise statement of errors complained of on appeal, ¶ 2. However, defendant’s argument fails, as it is incorrect in its position that a replacement dwelling was both available on the market and comparable to the condemned property. Plaintiffs provided undisputed testimony that the commission’s proposed replacement dwelling, 104 Marlboro Drive in Peters Township, had not been available on the market since 2010. (T.T. Vol. 1, 108:10-13). Therefore, the comparability of the two homes is immaterial, and the jury was free to consider the Cservaks’ costs in building a replacement home.

This court notes that the condemned premises was so unique with regard to location, acreage, and distinctive amenities (e.g., art studio, pond, pastoral setting, ready access to Interstate 79) that the proposed replacement dwelling was not comparable. The commission asserted it could provide the Cservaks with a comparable property. Its bold and erroneous assertion disregards the critical facts that the proffered real estate was in a crowded residential neighborhood, without the land space for all of the distinctive amenities to restart the Cservaks’ lives, which were disrupted by this process. The commission claimed that it did not have to replace the Cservaks’ home and boldly stated it did not do that contrary to the testimony of its own agent. Further, on rebuttal, the Cservaks produced Mr. Krzywiecki, who testified that the commission did exactly that (i.e., built him a new brick ranch home), because the commission claimed it could not find a comparable home for Mr. Krzywiecki when, in fact, it had tom down 70 homes similar to his. Clearly, the jury found credibility on the side of plaintiffs.

Testimony of Kenneth Kulak

Defendant further complains that plaintiffs’ witness Kenneth Kulak should not have been permitted to testify regarding the Cservaks’ reproduction costs, as Mr. Kulak was not a qualified, valuation expert. The commission is incorrect, as Mr. Kulak did not opine as to the market value of the Cservaks’ new home, but instead testified regarding the actual cost of building the home. He has specialized knowledge on the subject of home constmction costs, and was therefore qualified to proffer such testimony pursuant to Pa.R.E. 702.

Defendant’s “Offers of Compromise”

The commission argues plaintiffs “should have been precluded from offering into evidence two offers of compromise” that it made, “as prior settlement offers are inadmissible as evidence pursuant to Pa.R.E. 408.” Concise statement of errors complained of on appeal, ¶ 4. Defendant’s argument fails. First, the jury could not have made a determination as to whether the commission delayed in paying just compensation without knowing of defendant’s appraisals and offers. Second, defendant’s offers were not “settlement offers” within the context or meaning of Pa.R.E. 408. They were, instead, de facto administrative decisions that the Cservaks were forced to either accept or appeal. The policy behind rules excluding settlement offers is the encouragement of settlement negotiations “after a controversy has actually arisen.” Hiram Ricker & Sons v. Students Int’l Meditation Soc’y, 501 F.2d 550, 553 (1st Cir. 1974). Thus, Rule 408 is certainly not appropriate in this eminent domain matter where the commission’s offer was in fact the reason for the controversy.

Attorneys’ Fees

Defendant complains that “[t]he jury should not have been instructed regarding an award of attorneys’ fees pursuant to § 716 of the Code, as that section is inapplicable to the facts of this case.” Concise statement of errors complained of on appeal, ¶ 5. This is a non-issue, as no attorneys’ fees were awarded over and above the $4,000 statutory limit, pursuant to 26 Pa.C.S.A. § 716. See court order of January 31, 2014.

Replacement Home

The commission last complains that it “should have been permitted to introduce testimony of new comparable replacement homes.” Concise statement of errors complained of on appeal, ¶ 6. This issue was disposed of via this court’s order dated January 31, 2014, and, for the reasons stated therein, that decision will not be revisited herein.

Accordingly, the April 2, 2014, jury verdict should be affirmed.


text:
    Barr v. Easton

      C.P. of Lycoming County,
    No. 13-02461

      Leslie M. Fields, for plaintiff.

      Brigid Q. Alford, for defendants.
    July 7, 2014
   GRAY, J.,

This matter comes before the court on two sets of preliminary objections filed by separate defendant groups in this matter. After review of the objections, response, argument, complaint, and briefs, the court enters the following opinion and order, overruling the objections to counts 2-5 and granting the objection to count 5.

Procedural and Factual Background

This matter arises from a drunk-driving hit and run motor vehicle accident that occurred at 2:45 a.m. on October 9, 2011. Defendant, John M. Easton, Jr., (“Easton”) while operating a 1994 Ford pickup truck, veered into the left lane and collided with a parked pickup truck and struck Alonzo D. Barr, plaintiff, who was standing next to a truck after just opening it.

Until 7 p.m. on October 8,2011, Easton had been working at a trailer park in Loyalsockville. After work, Easton socialized and consumed alcoholic beverages with residents and friends at the trailer park. From there, Easton drove the 1994 Ford pickup to the defendant Loyalsock Hotel. The employer related defendants owned and controlled the 1994 Ford pickup truck that Easton had at the job site and operated at the time he injured plaintiff. At the Loyalsock Hotel, Easton started drinking beer, later switching to rum and cokes. At about 8 p.m. defendant left the hotel and went to a party where he drank more rum and cokes. Easton returned to the hotel, consuming rum and cokes until closing time of 2:30 a.m. on October 9, 2011. After closing, Easton drove the 1994 Ford pickup to the Shamrock Grill at 762 West 4th Street, but it was closed. Approximately 15 minutes after leaving the Loyalsock Hotel, Easton drove the 1994 Ford pick-up truck from West 4th street to around Elmira Street and West 3rd Street, where he collided with a parked pick-up truck and struck plaintiff. Easton fled the scene, and was later arrested and charged with several felonies, misdemeanors and traffic summary offenses.

Plaintiff suffered severe, painful, serious and permanent injuries including the following: a concussion with amnesia, a right pneumothorax, bilateral pulmonary contusions, bilateral renal lacerations withrightperinephric hematoma; right knee laceration; right nondisplaced oblique tibiofibular fracture; nondisplaced left 10th rib fracture; T5 body and bilateral pedicle fractures; T5 and T6 grade 1 retrolisthesis; LI and L2 grade 1 retrolisthesis and blood loss anemia..

The complaint includes 5 counts. Count 1 consists of the negligence claim against Easton, the driver. No preliminary objections have been made with respect to count 1.

Counts 2 & 3 consist of negligent entrustment claims against Easton’s employer (Carey Pallet, Inc., D.R. Carey & Son Lumber and Pallet, Inc., Daniel F. Carey, Matthew D. Carey and Palcon, LLC., (collectively “employer-related defendants”)). Plaintiff alleged that the 1994 Ford pickup truck operated by Easton was owned and controlled by these defendants. Count 2 is directed at defendant Corporation which includes: Carey Pallet, Inc., t/d/b/a/ Carey Pallet, D.F. Carey & Son Lumber and Pallet, Inc., and Palcon, LLC. Count 3 is directed at officers of the corporations, i.e., Daniel F. Carey and Matthew D. Carey, the president and treasurer, respectively, of D.F. Carey & Son Lumber and Pallet, Inc. Defendants’ preliminary objections to count 2 and 3 are in the nature of a demurrer with respect to allegations required for negligent entrustment.

Counts 4 and 5 consist of dram shop claims against the establishment-related defendants for serving alcohol to Easton. These defendants are: The Loyalsock Hotel, Inc. and d/b/a/ The Loyalsock Hotel, Estate of Mary E. Temple, David J. Eck and Earl J. Eck, co-executors, and t/d/b/a Loyalsock Hotel (collectively “establishment related defendants,” and the estate of Mary E. Temple, David J. Eck and Earl J. Eck, as the “estate”). These defendants filed preliminary objections to both count 4 and 5 for failure to state a cause for which relief may be granted (demurer). Count 4 consists of a claim for dram shop statutory liability and count 5 is for common-law dram shop liability.

The complaint avers that the establishment-related defendants, by their employees / servants / agents, repeatedly served alcoholic beverages to Easton when Easton was visibly intoxicated and this was the proximate cause of plaintiff’s injuries. First, defendants object that since the Loyalsock Hotel was not incorporated on October 8-9,2011, and therefore could not be liable under count 4 or 5. Second, defendants object that since an estate cannot be liable for torts committed during the administration of the estate, the estate cannot be liable under counts 4 or 5. Lastly, defendants demur to count 5 and moved to strike paragraphs 40(a), (e)-(m) under this count, asserting that dram shop statute precludes claims based upon common-law negligence.

Legal Standards

Preliminary Objections

1. A party may file preliminary objections based on the legal sufficiency or insufficiency of a pleading (demurrer) pursuant to Pa. R.C.P. 1028(a)(4).

2. A demurrer tests the legal sufficiency of the complaint. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 714 (Pa. Super. 2005).

3. When reviewing preliminary objections in the nature of a demurrer, the court must “accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012), citing, Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007).

4. “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)(emphasis added).

Negligent Entrustment

5. Pennsylvania has adopted RESTATEMENT (SECOND) OF TORTS § 308. Wittrien v. Burkholder, 965 A.2d 1229, 1232 (Pa. Super. 2009); See also, Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998)(Judgment notwithstanding the verdict should have been granted to car dealership who failed to require production of a valid license prior to allowing test drives.)

6. “It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” RESTATEMENT (SECOND) OF TORTS § 308.

7. Comment b to § 308 notes that “[t]he rule stated in this section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use.” RESTATEMENT (SECOND) OF TORTS § 308, Comment b.

8.The second illustration to§ 308 provides the following. “A lends his car to B, whom he knows to be intoxicated. B’s intoxicated condition leads him to cause harm to C. A is negligent toward C.” RESTATEMENT (SECOND) OF TORTS § 308, Illustration 2.

9.Illustration 3 provides the following. “A and B have agreed to take two young women, in A’s car, to a dance at a roadhouse and have stocked the car with liquor. A, the owner of the car, is prevented from going on the party and lends his car to B. The party takes place and B gets drunk, as A knows that he has done on other similar occasions, and while drunk drives the car recklessly, causing harm to C. A is negligent toward C.”

RESTATEMENT (SECOND) OF TORTS § 308, Illustration 3b.

10. A valid claim for negligent entrustment requires that plaintiff plead that the defendant (1) permitted a third person, (2) to use a thing under the control of the defendant, and (3) that the defendant knew of should have known that third person intended to or was likely to usé the thing in such a way that would harm another. See, Ferry v. Fisher, 709 A.2d 399 (Pa. Super. 1998).

Dram Shop Liability

11. 47 P.S. § 4-493, known as the Dram Shop Act, provides as follows:

(1) FURNISHING LIQUOR OR MALT OR BREWED BEVERAGES TO CERTAIN PERSONS. For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor: Provided further, That notwithstanding any■ other provision of law, no cause of action will exist against a licensee or the board or any employe, servant or agent of such licensee or the board for selling, furnishing or giving any liquor or malt or brewed beverages or permitting any liquor or malt or brewed beverages to be sold, furnished or given to any insane person, any habitual drunkard or person of known intemperate habits unless the person sold, furnished or given alcohol is visibly intoxicated or is a minor, (emphasis added).

12. “A violation of the statute is negligence per se and if the violation was the proximate cause of the plaintiff’s injury, the defendant is liable for it.” Schuenemann v. Dreemz, LLC, 34 A.3d 94, 100 (Pa. Super. 2011), citing, Cron v. Sarjac, Inc., 552 Pa. 269, 714 A.2d 1024, 1025 (Pa. 1998).

13. To recover, plaintiff must prove: “(1) that an employee or agent of [the defendant] served the decedent alcoholic beverages at a time when he was visibly intoxicated; and (2) that this violation of the statute proximately caused [the decedent’s] injuries and ultimate death.” Schuenemann, supra, 34 A.3d at 100, citing, Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 525-526 (Pa. Super. 1998); Miller v. Brass Rail Tavern, Inc., 702 A.2d 1072, 1078 (Pa. Super. 1997).

14. While no appellate court has dealt squarely with the question of whether 47 P.S. § 4-493, precludes common law liability, the statutory language requires visible intoxication as a prerequisite to dram shop liability. “No cause of action will exist” unless the alcohol was furnished to an individual who is “visibly intoxicated or is a minor.” 47 P.S. § 4-493.

Liability against an Entity Incorporated after the Tort

15. “With respect to successor liability in this Commonwealth, it is well-established that ‘when one company sells or transfers all of its assets to another company, the purchasing or receiving company is not responsible for the debts and liabilities of the selling company simply because it acquired the seller’s property.’” Cont’l Ins. Co. v. Schneider, Inc., 582 Pa. 591, 599-600, 873 A.2d 1286, 1291 (Pa. 2005), quoting, Hill [v. Trailmobile, 412 Pa. Super. 320,] 603 A.2d [602, at] 605 [(Pa. Super. 1992); and also referencing 15 William Meade Fletcher, FLETCHER CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS § 7122 (perm, ed., rev. vol. 2004).

16. “This general rule of non-liability can be overcome, however, if it is established that (1) the purchaser expressly or implicitly agreed to assume liability, (2) the transaction amounted to a consolidation or merger, (3) the purchasing corporation was merely a continuation of the selling corporation, (4) the transaction was fraudulently entered into to escape liability, or (5) the transfer was without adequate consideration and no provisions were made for creditors of the selling corporation.” Cont’l Ins. Co., supra., 873 A.2d at 1291, citing, Hill, 603 A.2d at 605; Fletcher, supra, § 7122.

17. “This Commonwealth has also recognized a “product-line” exception to the general rule against successor liability, which permits successor liability to be imposed for injuries caused by defective products manufactured by a predecessor if the successor continues to manufacture the product.” Cont’l Ins. Co., supra., 873 A.2d at 1291 n.8, citing, Hill, 603 A.2d at 605-606.

Liability against an Estate

18. Recovery sought against an estate and not from administrators in their individual capacity “is not permitted, it being uniformly held in this Commonwealth, and generally elsewhere, that an estate is not liable for the tort of an executor or administrator committed by him, his servants, agents or employes, during the administration of the estate[.]” Miller v. Jacobs, 361 Pa. 492, 495, 65, A.2d 362, 364 (Pa. 1949) (citations omitted).

19. “The general rule is that an executor or administrator cannot as such commit a tort, but any tort committed by him is committed individually, and renders him as an individual, and not the estate, liable in damages, except where the estate has derived pecuniary advantage from the representative’s tortious act, and the rule is the same whether the injury results from intentional wrong or negligence.” Miller v. Jacobs, 65 A.2d at 364, n.1 (emphasis added) (citations omitted) quoting 33 C.J.S. 1260, § 250. Furthermore, it was noted that “[t]he trustee is subject to personal liability to third persons for torts committed in the course of the administration of the trust to the same extent that he would be liable if he held the property free of trust.” Miller v. Jacobs, 65 A.2d at 364, n.1, quoting, REST. TRUSTS, § 264 (citations omitted).

20. In Miller, supra, the Pennsylvania Supreme Court further suggested that another exception may exist “where a business is conducted by an executor in pursuance of the express direction and authority of the testator[.]” Miller v. Jacobs, 65 A.2d at 364, citing, 65 C J. 661 [§ 524] c; and 43 DICKENSON LAW REVIEW 143, 145.

Discussion

The preliminary objections are discussed below.

1. Counts 2 & 3 Negligent Entrustment — Demurrer

The court overrules the demurrer to the negligent entrustment counts which was based upon the assertion that plaintiff failed to allege specific facts establishing that the defendants had the requisite knowledge to incur liability under negligent entrustment. The court concludes that plaintiff broadly alleged the requisite knowledge on the part of the defendants at this stage in the proceedings. Specifically, plaintiff alleged that the defendant corporation (which includes Carey Pallet, Inc., D.R. Carey & Son Lumber and Pallet, Inc., and Palcon, LLC) and defendants Daniel and Matthew Carey were negligent in entrusting their 1994 Ford pickup truck to John Easton, “whom they knew or should have known, through the exercise of ordinary care, was incapable of operating the aforesaid vehicle safely and in compliance with the law because of his propensity to operate vehicles while under the influence of alcohol and/or while imbibing alcoholic beverages.” See, complaint, ¶¶27, 31. The court notes that the defendants did not object on the grounds of insufficient specificity of a pleading and did not request a more specific pleading. This is without prejudice to raising the issue in new matter and/or a claim for summary judgment that may arise if plaintiff cannot substantiate the averment of the requisite knowledge by any or all of the defendants or other elements of negligent entrustment.

2. Date of Incorporation of Loyalsock Hotel

In a so called “speaking demurrer,” the Loyalsock Hotel defendants aver that since the hotel was not incorporated on October 8-9,2011, it could not be liable to plaintiff for a tort that occurred on that date. In a “speaking” brief, the plaintiff puts forth allegations supporting legal theories of how the defendant Loyalsock Hotel can be liable for a tort occurring prior to the date of incorporation, including exceptions to the general rules of predecessor liability. Since none of the averments are properly before the court at this time and accepting as true all “well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder, supra, 52 A.3d at 1253, the court overrules the objection. This is not a case that is clear and free from doubt at this stage in the proceedings.

3. Liability of the Estate

The general rule is that “an estate is not liable for the negligence of an executor for the tort of an executor or administrator committed by him, his servants, agents or employees, during the administration of the estate[.]” Miller, supra, 361 Pa. at 495. However, the executors could be sued individually for their negligence. Id. Also, an Estate may be liable if it benefits financially from the negligent activity. Miller, supra, 361 Pa. at 495 n.1. Lastly, the Pennsylvania Supreme Court has suggested that an estate may be liable “where a business is conducted by an executor in pursuance of the express direction and authority of the testator[.]” Id.

The court believes that sufficient facts are alleged at this point in the proceeding to overrule the objection based upon in the immunity of the estate for negligence of an executor. Giving the plaintiff the benefit of all inferences, the court concludes that the estate may be liable because it can be inferred that it would have financially benefited from the sale of alcohol at the hotel, and because it can be inferred that the hotel business was conducted by the co-executors pursuant to direction and authority of the testator. The Ecks were alleged to have been running the hotel business at all relevant times. The court overrules the objection without prejudice to raising the defense in new matter or in a motion for summary judgment.

4. Common-law Dram Shop Negligence

Defendants demur to count 5 and moved to strike paragraphs 40(a), (e)-(m), under this count, stating that the averments of negligence cannot form the basis of recovery. Count 5 consists of a claim for dram shop common-law negligence. While no appellate court has dealt squarely with the question of whether 47 P.S. § 4-493 precludes common law claims, the statute provides that “No cause of action will exist” unless the alcohol was furnished to an individual who is “visibly intoxicated or is a minor.” 47 P.S. § 4-493. The plain meaning of the statue makes it clear that a licensee or agent may only be held liable by serving a visibly intoxicated person. Consequently, as a practical matter, other ways of establishing liability under common law dram shop negligence become moot. Accordingly, the court grants the preliminary objections to count 5. Count 5 is hereby stricken from the complaint.

ORDER

And now, this 7th day of July, 2014, upon consideration of defendants’ preliminary objections, it is hereby ordered and directed that

1. Defendants’ objections in the nature of a demurrer to the negligent entrustment claims are overruled. Defendants shall file an answer within twenty days pursuant to Pa. R.C.P. 1028(d).
2. Defendants’ objections in the nature of a demurrer for a claim against the Loyalsock Hotel and the Estate of Mary Temple are overruled. Defendants shall file an answer within twenty days pursuant to Pa. R.C.P. 1028(d).
3. Defendants’ objections to count 5 are granted. Count 5 is stricken from the complaint. No answer to those averments need be filed.
4. A separate scheduling order will be entered placing this matter on the court’s January 2015 trial term.

      . The employer-related defendants include: Carey Pallet, Inc., t/d/ b/a/ Carey Pallet, D.F. Carey & Son Lumber and Pallet, Inc., and Palcon, LLG, Daniel F. Carey and Matthew D. Carey, as officers.

      . In the present case, the court concludes that the co-executors were not sued in their individual capacities to subject them to personal liability. The caption, description in the complaint, and the prayer for relief support the conclusion that David and Earl Eck were solely sued in their capacities as co-executors of the Estate. The pertinent portion of the caption lists the defendants as “THE LOYALSOCK HOTEL, INC. AND D/B/A/ THE LOYALSOCK HOTEL AND ESTATE OF MARY E. TEMPLE, DAVID J. ECK AND EARL J. ECK, CO-EXECUTORS.” ¶9 of the complaint identifies defendants David and Earl Eck as follows:

        “Defendant, estate of Mary E. Temple, by and through its co-executors, David and Earl J. Eck, and t/d/b/a Loyalsock Hotel, is the estate of the late Mary E. Temple, with an address at 4160 State Route 87, Upper Fairfield Township, Montoursville [.]” The prayer for relief does not seek a judgment against the Ecks individually. Therefore, the court concludes that the Ecks were not sued in their individual capacities.


author: GLAZER, J.,

text:
    315 Arch Street Condominium Association v. 315 Arch Street Realty, 2005 L.P.

      William G. Roark and Robert E. Slota, Jr., for plaintiff.

      Thomas J. Gregory, for defendant.
    April 1, 2014
   GLAZER, J.,

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Plaintiff 315 Arch Street Condo Association (the “Association”) is an association of the owners of condominium units at 315 Arch Street, Philadelphia (the “Condominium”). The Condominium has approximately 53 units, including a commercial unit on the ground floor.

2. Defendant 315 Arch Street Realty 2005, L.P. (the “Developer) was the developer of the Condominium and the declarant that issued the Declaration of Condominium (the “Declaration”) for the Condominium.

3. In 2006, the Developer controlled the Condominium board and hired its manager and billing consultant. Once enough units in the Condominium were sold to persons not associated with the Developer, the Board began to act independently of the Developer.

4. The Developer continues to own, and rents out, residential Units 206, 504, 603, 703 and 704 and the commercial Unit 101.

5. In March, 2011, the Association notified the unit owners, including the Developer, that there were leaks in the exterior wall of the Condominium and extensive masonry work had to be undertaken to solve the problem.

6. The exterior of the Condominium is a “Common Element” and all unit owners must contribute to its repair and upkeep, in the form of a special assessment, in proportion to their shares, as set forth in the Declaration.

7. In 2011, the Condominium Board approved a special assessment for exterior repair in the amount of $205,000. The repairs were made and the Association paid the bills in that amount.

8. In the Spring of 2012, the Association billed the unit owners for their proportional share of the special assessment for the exterior repair costs.

9. The Association billed the Developer $2,392.92 as the special assessment for Unit 206, but the Developer failed to pay that special assessment.

10. The Association billed the Developer $1,549.72 as the special assessment for Unit 504, but the Developer failed to pay that special assessment.

11. The Association billed the Developer $1,662.57 as the special assessment for Unit 603, but the Developer failed to pay that special assessment.

12. The Association billed the Developer $1,373.56 as the special assessment for Unit 703, but the Developer failed to pay that special assessment.

13. The Association billed the Developer $2,046.78 as the special assessment for Unit 704, but the Developer failed to pay that special assessment.

14. Under the provisions of the Declaration, the charges for electric and water utilities may be sub-metered for each unit and billed directly to each unit. Pursuant to this scheme, the Association pays the utility companies for the Condominium’s entire usage and then the individual unit owners are supposed to reimburse the Association for each unit’s usage.

15. When the Developer hired the billing consultant for the Condominium, the Developer had it bill the Developer’s tenants for utilities rather than the Developer itself. Some of those bills were not paid.

16. Once the Association took over from the Developer and discovered the Developer was not being billed directly, the Association directed the billing consultant to bill the Developer directly for its units’ usage. The Developer has not paid all of those bills.

17. The Developer failed to pay $7,138.07 billed for electricity and $3,381.25 billed for water with respect to Unit 206.

18. The Developer failed to pay $8,601.88 billed for electricity and $1,655.69 for water with respect to billed Unit 504.

19. The Developer failed to pay $2,014.51 billed for electricity and $49.10 billed for water with respect to Unit 603.

20. The Developer failed to pay $2,825.15 billed for electricity with respect to Unit 703.

21. The Developer failed to pay $2,648.74 billed for electricity and $909.20 billed for water with respect to Unit 704.

22. The commercial unit, Unit 101, which is owned by the Developer, has a heating unit that utilizes a large brick chimney that runs up the exterior of the Condominium Building.

23. Unit 101 is the only unit that utilizes the chimney, so the chimney is a limited common element appurtenant to Unit 101. As such, Unit 101 is the only unit responsible under the Declaration for paying to repair the chimney.

' 24. The Association hired a structural engineer to assess the chimney.

25. His inspection revealed straps in place holding the chimney together, straps holding the. chimney to the building, numerous vertical cracks running along the chimney, and places where the chimney was pulling away from the building.

26. In his professional opinion, which the court found to be credible, the chimney needs to be repaired urgently or removed.

27. The cost to remove the top portion of the chimney and stabilize the remainder is estimated to be $41,578.00.

28. The Association has not yet completed this work because it lacks the necessary funds to do so.

29. Pursuant to the Declaration, the Association may recover from a unit owner the attorneys’ fees incurred by the Association in collecting delinquent assessments.

30. The Association incurred attorneys’ fees in the amount of $28,653.08 in prosecuting these consolidated actions.

31. The Developer as owner of Units 206, 504, 603, 703 and 704 must pay the Association $9,025.55 for those units ’ portion of the special assessment for exterior repairs.

32. The Developer as owner of Units 206, 504, 603, 703 and 704 must pay the Association $29,223.59 for electricity and water consumption by those units.

33. The Developer as owner of commercial Unit 101 must pay $41,578.00 to the Association to cover the cost of removing and repairing the chimney, which is a limited common element appurtenant to Unit 101.

34. The Developer must pay the Association’s attorneys’ fees of $28,653.08 incurred in these consolidated actions.

CONCLUSION

Based upon the foregoing, judgment shall be entered against defendant and in favor of plaintiff in the amount of $108,480.22.

ORDER

And now, this 1st day of April, 2014, after a non-jury trial of these consolidated matters, and in accord with the findings of fact and conclusions of law issued simultaneously, it is ordered and decreed that judgment is entered in favor of plaintiff and against defendant on plaintiff’s claims in the amount of $108,480.22.

      . Trial Exhibit (hereinafter “Ex.”) A, § 1.1.

        . See Pa C.S. §3303.

      . Ex. C; November 4, 2013 Trial Transcript (hereinafter “Tr.”) pp. 26-27.

      . Ex. A, §4.1, §5.1 and Exhibit B thereto; Tr. p. 26. See 68 Pa. C.S. § 3314(b).

       Fx F

      . Tr. pp. 29-32, 34.

      . Tr. p. 34.

      . Ex. B; Tr. p. 35

        . Id.

      . Id.

      . Id.

      . Id.

      . Ex. A, § 13.19.

      . Tr. pp. 36-37. See 68 Pa. C.S. § 3314(c)(3).

      .Tr.pp. 37-38.

      . Id.

      . Tr. p. 42; Exs. B, G, H, I.

      ?fr. pp. 42-44; Exs. B, H, I, J.

      . Tr. pp. 45-46; Exs. B, H, I, K.

      . Tr. pp. 47-48; Exs. B, H, I, L.

      . Tr. pp. 48-49; Exs. B, H, I, M.

      . Tr. pp. 23-24.

      . Tr. p. 50; Ex. A, §3.2.2.

      . Ex. A, § 3.3; Ex. N. See 68 Pa. C.S. §3314(c).

      .TEx. P; Tr. pp. 83-86.

      . Ex. P; Tr. pp. 87-89, 95-97.

      . Ex. Q; Tr. p. 102.

      .Tr.p. 51.

      . Ex. A. §13.12, §13.17. See 68 Pa. C.S. §3315(a).

      . Tr. pp. 110-112; Exs. R, S.