author: MINORA, J.,

text:
    Laabs v. Four Star Contracting, Inc.

      Brian J. Walsh, for plaintiffs.

      John T. McGrath, for defendants.
    April 23, 2013
   MINORA, J.,

INTRODUCTION

At issue are defendants’ preliminary objections as to improper venue. The preliminary objections are overruled.

FACTUAL SUMMARY

This case stems from a motor vehicle accident that occurred on June 2, 2010 on Route 590 in Lake Ariel, Wayne County, Pennsylvania. Plaintiff, Deborah Laabs (“plaintiff’), was stopped in traffic when defendant Sorayda Busillo crashed into plaintiff’s vehicle without warning. Plaintiff sustained serious and permanent injuries from the crash. At the time of the accident, Busillo was operating a vehicle registered to and owned by defendant, Four Star Contracting, Inc., a general contracting company with a registered Pennsylvania address at 361 The Hideout, Lake Ariel, Wayne County, Pennsylvania 18436. Plaintiffs live at 425 Mountain Spring Avenue, Hawley, Pike County, Pennsylvania, 18428. Defendant Busillo’s home is in The Hideout. D.T. 5/9/12 (Busillo dep.) at 15 (Q: Am I correct in saying that when you say it’s [Four Star Contracting, Inc.] in The Hideout, is it run out of your home? A: I own a home in there, yes.). Hereinafter, when referenced together, Four Star Contacting, Inc. and Busillo will be referred to as “defendants.” The alleged basis for defendants’ preliminary objections is that none of the parties live in Lackawanna County and that the accident itself did not occur there.

Defendant Busillo worked for Four Star Contracting, Inc. for nine (9) years and was employed by the company as a secretary. Busillo dep. at pp. 2, 6 & 15. Busillo was deposed by plaintiffs’ counsel on May 9, 2012 and asked about Four Star Contracting’s ties to Lackawanna County. Id. Busillo, in answering counsel, testified:

Q: I see that you advertise in Lackawanna County and through various ...
A: Well, we do, Lowe’s installs for roofing and siding, they sub us out, so we just do roofs and siding over in Lackawanna, but we don’t really get too many jobs.
Q: So you have an agreement with Lowe’s that if someone comes in and buys roofing material and needs a roofer —
A: Right, we sub them out.
Q: — then Lowe’s would contact your company?
A: Us, yes.
Q: Would your company actually do the work, or would you then sub the work out?
A: We sub it out.
Q: Sort of the middleman.
A: Yep.
Q: Okay. That contract you said is with Lowe’s. Do you have any other contracts with any other entities or individuals that would provide work in Lackawanna County for you?
A: No.

See Busillo dep. at p.16-17; plaintiff’s supplemental brief in response to defendants’ preliminary objections, exhibit A (Feb. 6, 2013).

Plaintiff’s counsel subpoenaed Four Star Contracting, Inc.’s records from Lowe’s. See plaintiff’s supplemental brief in response to defendants’ preliminary objections and exhibit B, Lowe’s records from 2006-2012. The records from Lowe’s show that Four Star Contracting, Inc. performed nearly eight hundred thousand dollars ($800,000) worth of business with Lowe’s from 2006 through 2012. Out of that, thirty-seven percent (37%) or $299, 157.58 is related to Lackawanna County work. Id. Busillo’s response in her deposition at p. 16 stating “we don’t really get too many jobs over there [Lackawanna County]” seems at best disingenuous and at worst an outright fabrication. Defendants have chosen not to provide this Honorable Court with any materials indicating any amount of business defendant performed in Lackawanna County or elsewhere. Defendants have had ample opportunity to secure this information because this court has ordered a delayed decision on this preliminary objection as to improper venue on four occasions, during a period of over a one year, due to stipulations of counsel seeking further discovery.

PROCEDURAL SUMMARY

On October 6, 2011, defendants filed preliminary objections alleging improper venue. Plaintiffs submitted their response and memorandum of law in support of their response to the preliminary objections on January 6,2012. On February 6, 2013, plaintiffs filed a supplemental brief in support of their preliminary objections.

LEGAL ARGUMENT OF THE PARTIES

Plaintiff’s Argument

Venue is proper in Lackawanna County because defendants have regularly solicited and transacted business, and carried on a continuous and systematic part of their business in Lackawanna County, through its business contract with Lowe’s of Scranton. Defendants’ preliminary objection to transfer venue should be denied.

Defendants’ Argument

Venue in Lackawanna County is improper because defendants place of business is in Wayne County, the car accident occurred in Wayne County, and plaintiff resides in Pike County. The amount of business that defendant does in Lackawanna County is too little to meet the “regularly conducts business” standard under Pa.R.C.P. 2179(a)(2) and Pa.R.C.P. 1006(c)(1).

LEGAL STANDARD

To transfer venue because it is improper, one must raise a preliminary objection. Kubik v. Route 252, Inc., 762 A.2d 1119 (Pa. Super. 2000) (citing Pa.R.C.P. 1028(a)(1)).

Plaintiff’s Choice of Forum

“Defendants bear the burden of supporting their objection to venue by pleading facts which provide an adequate legal basis for sustaining the objection.” Rogers v. Thomas, 2012 WL 2603107, at *7 (Trial order) (June 20, 2012) (citing Nutrition Mgmt. Servs. Co. v. Hinchcliff, 926 A.2d 531, 535 (Pa. Super. 2007); Del. Valley Underwriting Agency, Inc. v. Williams & Sapp, Inc., 359 Pa. Super. 368, 374, 518 A.2d 1280, 1283 (1986)). A plaintiff generally is given the choice of forum so long as personal and subject matter jurisdiction are satisfied. Purcell v. Bryn Mawr Hosp., 525 Pa. 237, 243, 579 A.2d 1282, 1284 (1990); Zampana-Barry v. Donaghue, 2007 Pa. Super. 60, 921 A.2d 500 (2007) app. denied, 596 Pa. 709, 940 A.2d 366 (2007). “Plaintiff’s choice forum is accorded less deference when plaintiff does not live in the forum district and none of the operative events occurred there.” Feltoon v. Nolen, 2002 WL 31474535 (Phila. Co. Nov. 1, 2002) (citing Int’l. Mills Servs., Inc. v. Allegheny Ludlum Corp., 2002 WL 748896, at *2 (Phila. Co. April 11, 2002).

Trial Court Discretion as to Venue

The trial court has discretion to determine whether a transfer of venue is appropriate. Feltoon, 2002 WL 31474535; Gilford v. Altman, 770 A.2d 341, 343 (Pa. Super. 2001); Purcell, 525 Pa. at 242, 579 A.2d at 1284. The standard of review is abuse of discretion. ZampanaBarry, 921 A.2d at 503; Schultz v. MMI Products, Inc., 30 A.3d 1224 at ¶ 6 (Pa. Super. 2011); Stier v. Bensalem Racing Ass’n, Inc., 2012 WL 6051000, at *1 (Pa. Com. Pl. Mar. 29, 2012); Purcell, 525 Pa. at 242, 579 A.2d at 1284. A court abuses its discretion when it transfers venue at a defendant’s request without requiring the defendant to present evidence in support of the petition. See Korn v. Marvin Fives Food Equip. Corp., 362 Pa. Super. 559, 524 A.2d 1380 (1987) (“[Defendant has the burden in asserting a challenge to the plaintiff’s choice of venue.”); See also Stier, 2012 WL 6051000, at * 1; Wimble v. Casino, 2011 WL 2518385, at *1 (Trial order) (Phila. Co. May 25, 2011); Feltoon, WL 31474535, at *1 (internal citations omitted).

LEGAL ANALYSIS

Venue in this Case

In the present case, because plaintiff’s complaint alleges liability against both defendant Busillo and defendant Four Star Contracting, Inc., Pa.R.C.P. 1006(c) (1) applies. Pennsylvania Rule of Civil Procedure 1006(c)(1) sets forth the general venue rule for actions claiming joint liability against two or more defendants. [A]n action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivisions (a) or (b).” Pa.R.C.P. 1006(c)

(1). Rogers, 2012 WL 2603107, at *8 (citing Gilford, 770 A.2d at 344; Shala v. Ryan, 53 D. & C. 4th 129, 135 (Lacka. Co. 2001)). Additionally, since Defendant Four Star Contracting, Inc. is a corporation, we apply Pa.R.C.P. 2179 to determine whether plaintiff’s choice of forum is appropriate. The rule states:

(a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of business is located:
(2) a county where it regularly conducts business',
(3) the county where the cause of action arose; or
(4) a county where a transaction or occurrence took place out of which the cause of action arose.

Pa.R.C.P. 2179 (emphasis added); Zampana-Barry, 921 A.2d at 502, ¶ 5; Feltoon, 2002 WL 31474535, at *3; Stier, 2012 WL 6051000, at *2.

Defendants’ preliminary objection as to improper venue is centered around whether Four Star Contracting, Inc. regularly conducts business in Lackawanna County. Under Pa.R.C.P. 2179(a)(2), whether a corporation regularly conducts business in a county is an issue of fact. Rogers, 2012 WL 2603107, at *8; Schultz, 30 A.3d at 1227; Feltoon, 2002 WL 31474535, at *3; Petty v. Hosp. Serv. Ass’n of Ne. Pennsylvania, 967 A.2d 439, 444 (Lacka. Co. Feb. 19, 2009), aff’d, 23 A.3d 1004 (Pa. 2011). Zampana-Barry, 921 A.2d at 504, ¶ 10. A plaintiff may bring her action in any county where one corporate defendant regularly conducts business notwithstanding that a co-defendant resides in another county. Rogers, 2012 WL 2603107, at *8-9; Zappalla, 589 Pa. at 531-32, 909 A.2d at 1281 (citing Bingham v. Poswistilo, 2011 WL 2262482, at *13 (Lacka. Co. 2011). “Pa.R.C.P. 2179(a)(2) “requires only that the business be conducted ‘regularly’ and not ‘principally.’ A corporation [or partnership] may perform acts ‘regularly’ even though these acts make up a small part of its total activities.” Zampana-Barry, 921 A.2d at 506, ¶ 18. “Pennsylvania employs a ‘quality-quantity’ analysis in determining whether a corporation or similar entity regularly conducts business in a given county, with each case resting upon its own facts.” Purcell, 525 Pa. at 244, 579 A.2d at 1285; Goodman v. Fonslick, 844 A.2d 1252, 1255 (Pa. Super. 2004). Zampana-Barry, 921 A.2d at 503, ¶ 10.

“Quality” Component to Pa.R.C.P. 2179(a)(2)

The quality component to the “regularly conducts business” analysis will be found if a corporation performs acts in a county that directly furthers or is essential to the entity’s business objective. Incidental acts in the county are not sufficient to meet the quality aspect of the test. Purcell, 525 Pa. at 243-44, 579 A.2d at 1284-85; Kappe v. Lentz, Cantor & Massey, Ltd., 2011 WL 4073343 at 6 (Trial Order) (Phila. Co. Aug. 5, 2011); Kubik, 762 A.2d at 1124. Mere advertisement or solicitation of business within the county generally is not sufficient to satisfy the quality test, because advertisement is generally incidental to the corporate object. Purcell, 525 Pa. 237, 579 A.2d 1282. See also Krosnowski v. Ward, 836 A.2d 143, 147 (Pa. Super. 2003) (en banc); Zampana-Barry, 921 A.2d at 503-504. If the defendant never entered the county in furtherance of the corporate obj ective, the mere fact that the defendant conducted some business with county residents is not sufficient to confer venue. Masel v. Glassman, 456 Pa. Super. At 49, 689 A.2d at 318; Feltoon, 2002 WL 31474535, at *3.

“Quantity” Component to Pa.R.C.P. 2179(a)(2)

Although “there is no general principle which conclusively establishes in every cáse what constitutes ‘doing business,’ as each case is governed by its own particular facts,” courts have consistently decided issues of venue based on the proportional amount of business done in a county. See Kappe, 2011 WL 4073343, at *8 (internal citations omitted); Zampara-Barry, 921 A.2d at 502; Ranlett v. Kurt Weiss Greenhouses, Inc., 2012 WL 6931461 (Ct. Com. Pl. Oct. 26, 2012). To meet the quantity prong of the test, a defendant’s contacts with the county must be “so continuous and sufficient as to be considered habitual.” Kappe, 2011 WL 4073343, at *8; Purcell, 579 A.2d at 1285 (internal citations omitted). Rogers, 2012 WL 2603107; Zampana-Barry, 921 A.2d at 504; Goodman, 844 A.2d at 1255. “[S]ome cases say 1-2% of contacts in a particular county is enough to meet the ‘quantity’ test, while others say 3-5% is not enough.” Kappe, 2011 WL 4073343, at *9. In Kappe, the court held that “the one to two percent that was used in Canter is not a bright line test.” Id. (citing Purcell, 579 A.2d at 1285; Kisak v. Wheeling Park Comm’n, 898 A.2d 1083, 1086 (Pa. Super. 2006)); Canter v. American Honda Motor Corp., 231 A.2d 140 (Pa. 1967)). That venue is present in one county does not negate the existence of venue in another county. Zampana-Barry, 921 A.2d at 505, ¶ 15. The Zampara-Barry court noted that, if that was the case, “there would be only one county with venue over an action against a corporation or partnership, which would be in direct conflict with the language of the pertinent rules.” Id.

Plaintiff’s Choice of Forum is a Forum where Defendants Regularly Conduct Business

In the present case, the vehicle collision between P\ plaintiff and defendants did not occur in Lackawanna County but in Wayne County. Pl.’s complaint, Laabs v. Four Star Contracting, Inc. and Sorayda Busillo, No. 2011-CV-5073 at ¶¶ 6-7. The record does not reflect that defendants’ business in Lackawanna County was in any way related to the Wayne County car crash between plaintiff and defendants, other than the fact that defendant Busillo was driving a Four Star Contracting, Inc. vehicle at the time of the motor vehicle accident. Moreover, neither plaintiff nor defendants reside in Lackawanna County. Id. “[A] plaintiff’s choice of forum is accorded less deference when the plaintiff does not live in the forum district and none of the operative events occurred there.” Feltoon, 2002 WL 31474535 at *2 (citing Int’l Mills Servs, Inc. v. Allegheny Ludlum Corp., 2002 WL 748896, *2, 5-6 (Phila. Co. April 11, 2002). However, in determining venue under the quantity-quality analysis test, the Supreme Court of Pennsylvania has held “[t]he corporation’s contacts need not be related to the cause of action.” Purcell, 525 Pa. at 244, 579 A.2d at 1286; See Feltoon, 2002 WL 31474535 at 2. Where the defendant is physically present in the county, courts have generally accepted any amount of business as satisfying the quantity prong. Id.; Canter, 426 Pa. at 44, 231 A.2d at 143; Monaco, 417 Pa. 135, 143, 208 A.2d 252, 256 (Pa. 1965).

Defendants’ business in Lackawanna County is more than incidental. Purcell, 525 Pa. at 244, 579 A.2d at 1285; Kappe, 2011 WL 4073343; Kubik v. Route 252, Inc., 762 A.2d 1119 (Pa. Super. 2000). In defendant Busillo’s deposition, Busillo stated that Four Star Contracting, Inc.’s business with Lowe’s of Scranton was its business in Lackawanna County. Busillo dep. at 16. As a general contractor, Four Star Contracting, Inc. ’s work with Lowe’s occurs when Lowe’s subs them out for roofing and siding. Id. Defendants’ work in Lackawanna County is of the kind for which defendants’ business is organized. The business records between Lowe’s and defendant indicate that defendants conducted business with Lowe’s of Scranton from 2006 to 2012, with $299,157.58 worth of sales, where 37% of defendants’ sales with Lowe’s were with Lowe’s of Scranton. Plaintiff’s supplemental brief in response to defendants’ preliminary objections at 4 (Feb. 6, 2013) (citing exhibit B of plaintiff’s supplemental brief, (Lowe’s records from 2006-2012)). We note that the record does not reflect how defendants’ business with Lowe’s of Scranton compares to defendants’ business overall. Nevertheless we find that based on defendants’ business relationship with Lowe’s of Scranton over the six year period referenced above, where over one-third of defendants’ business with Lowe’s is in Scranton, defendants have conducted regular business in Lackawanna County, before during and after the date of the accident herein.

This is so because courts in Pennsylvania at the county, Superior Court, and Supreme Court levels have all held that venue was sufficient in cases where the percentage of total business conduct was far less than the 37% of Lowe’s business that defendants have in Lackawanna County. (See Lugo v. Farmers Pride. Inc., 967 A.2d 963, 971 (Pa. Super. 2009) app. denied, 602 Pa. 668, 980 A.2d 609 (2009) (venue proper when only 1.9% of the plant’s total B grade produce sales occurred in that county); Zampana-Barry, 921 A.2d at 506, ¶ 19 (3-5% of gross business in a county was sufficient to confer venue); Canter, 426 Pa. at 44, 231 A.2d at 143 (venue proper when defendant’s sales in that county were only 1-2% of total business); Monaco, 417 Pa. at 143, 208 A.2d at 256 (venue proper when fares in that county were only 5-10% of the total business); see also Ranlett, 2012 WL 6931461 (when sales to customers in county ranged from 0.08% to 0.17% of total sales, the percentage of income generated from the county was not sufficiently continuous and efficient to render that county a proper venue). Accordingly, defendants’ working relationship with Lowe’s of Scranton constitutes “regular business conduct” and therefore venue in Lackawanna County is appropriate in this case.

Defendants Have Failed to Meet Their Burden to Show a Change in Venue is Necessary

We also note that since having filed their preliminary objection as to improper venue, defendants have failed to provide this court with any material evidence supporting the allegation that their business conduct within Lackawanna County is not regular enough in order for this county to be an appropriate venue. In support of defendants’ preliminary objection as to venue, defendants merely reiterate facts averred from plaintiff’s complaint that the accident occurred in Wayne County and that neither party resides in Lackawanna County. Def.’s brief in support of preliminary objections of defendants Four Star Contracting, Inc. and Sorayda Busillo at 1-2 (Oct. 6, 2011). Defendants even go so far in their supporting brief to say that they never conduct business in Lackawanna County. Id. at 2. Defendants ’ claim in this regard is in direct conflict with the business records between Lowe’s and Four Star Contracting, Inc. that was supplied by Lowe’s during discovery. Pl.’s response to def.’s preliminary objections, exhibit B (Lowe’s business records from 2006-2012).

In Jacobson v. The Shay Agency, LLC, 2012 WL 407390, at *3 (Lacka. Co. 2012), the court held that venue in Lackawanna County was improper because defendants had not alleged any facts relative to the quantity and quality of their business activities in Lackawanna County. In that case, no factual representations had been made regarding defendants’ total volume of business, the percentage of that business in Lackawanna County or the nature and extent of the agency’s activities in Lackawanna County. Id. The burden of proof to show that a change of venue is necessary is on defendants. Zampana-Barry, 921 A.2d at 503, ¶ 9; Purcell, 525 Pa. at 243, 579 A.2d at 1284; Rogers v. Thomas, 2012 WL 2603107; Nutrition Management Services Company v. Hinchcliff, 926 A.2d 531, 535 (Pa. Super. 2007); Delaware Valley Underwriting Agency, Inc. v. Williams & Sapp, Inc., 359 Pa. Super. 368, 374, 518 A.2d 1280, 1283 (1986)). Defendants have failed to meet their burden. It would be an abuse of this court’s discretion if we granted defendants’ preliminary objections without defendants having presented any evidence whatsoever in support of their requested relief. See Korn, 362 Pa. Super. 559, 524 A.2d 1380 (1987). See Stier, 2012 WL 6051000, at *2; Wimble, 2011 WL 2518385, at *1; Feltoon, 2002 WL 31474535, at *1.

Accordingly, defendants’ preliminary objections as to improper venue are overruled. Pa.R.C.P. 2179(a)(2); Pa.R.C.P. 1006(c)(1). An appropriate order follows.

MEMORANDUM AND ORDER

Defendants’ preliminary objections as to improper venue are denied, dismissed and overruled. Defendants should file an answer to plaintiff’s complaint within twenty (20) days of the date of this order.

      . Plaintiff’s supplemental brief in response to defendant’s preliminary objections (Feb. 6, 2013) states in n.l that in the Lowe’s records attached as exhibit B, store #242 represent defendant’s business with Lowe’s Scranton store and store #652 represents Lowe’s Wilkes-Barre, PA store.

      . Court order Indicating that decision on defendant’s preliminary objections is stayed until further discovery is completed, No. 2011-CV-5073, (Minora, J.) (Jan. 27, 2011); order indicating that decision on defendant’s preliminary objections is delayed until after deposition of defendant’s Busillo, No. 2011 — CV-5073, (Minora, J.) (Apr. 18,2011); order that the court will not make a decision on defendant’s preliminary objections until the court receives information from counsel, No. 2011-CV-5073, (Minora, J.) (June 6, 2011); order that the court receives information from counsel, No. 2011-CV-5073, (Minora, J.) (June 6, 2011); order that the court will not make a decision on defendant’s preliminary objections until the parties complete further discovery, No. 201 l-CV-5073, (Minora, J.) (Nov. 27, 2012). .

      . Feltoon v. Nolen, 2002 WL 31474535 (Rule 1006 of the Pennsylvania Rules of Civil Procedure states: (a) Except as otherwise provided by Subdivision (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.) (b) Actions against the following defendant, except as otherwise provided in Subdivision (c), may be brought in and only in the counties designated by the following rules . . . corporations and similar entities. Rule 2179; (c) An action to enforce a joint or joint and several liability against two or more defendants, except in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of Subdivisions (a) or (b)).

      . If an issue of fact is raised by preliminary objections and the plaintiff’s response to those objections, “[t]he trial court may not reach a determination based upon its view of the controverted facts, but must resolve the dispute by receiving evidence thereon through interrogatories, depositions, or an evidentiary hearing.” Rogers v. Thomas, 2012 WL 2603107 (Ct. Com. Pl. June 20, 2012) (internal citations omitted). If the responding party’s answer to the preliminary objections simply asserts legal conclusions and does not contain disputed factual averments, it is not necessary for the trial court to conduct an evidentiary hearing due to the lack of properly contested factual issues. Id.; Petty v. Hosp. Serv. Ass’n of Northeastern Pennsylvania, 967 A.2d 439, 444 (Pa. Cmwlth 2009), aff’d, 23 A.3d 1004 (Pa. 2011).

      . Purcell v. Bryn Mawr Hosp., 525 Pa. at 244, 579 A.2d at 1284; Masel, 456 Pa.Super. at 46, 689 A.2d at 317 (internal citations omitted) (Incidental acts include advertising, solicitation of business, education programs for personnel, hiring of personnel, and purchase of supplies from county.).

      . The defendant must have had physical presence in the county, for example by operating a branch office in the county, or by entering the county to make sales. Kappe. 2011 WL 407334; Feltoon, 2002 WL 31474535 at *3; see also, Mathues v. Tim-Bar Corp., 438 Pa.Super. 231, 234, 652 A.2d 349, 351 (1994); Battuelo v. Camelback Ski Corp., 409 Pa. Super. 642, 645, 598 A.2d 1027, 1029 (1991); Gale v. Mercy Catholic Med. Ctr. Eastwick, Inc., 698 A.2d 647, 652 (Pa. Super.Ct. 1997), Canter, 426 Pa. 38, 43, 231 A.2d 140, 143 (Pa. 1967); Monaco, 417 Pa. at 142, 208 A.2d at 256.


source: Caselaw Access Project

license: Public Domain

text:
    Malo v. Burns

      Alan Brian Jones, for plaintiffs.

      John T. Zelinka and Paul G. Batyko, III, for defendant.
    May 1, 2013
   MINORA, J.,

INTRODUCTION

Before this court is plaintiff’s motion for partial summary judgment and request for expedited hearing on plaintiff’s damages. The motion for partial summary judgment is granted. Plaintiff’s request for an expedited hearing on damages is scheduled before this court on June 20, 2013 at 9:30am.

FACTUAL SUMMARY

Contract Between Defendant and Plaintiff’s Deceased Mother (Decedent)

Erma L. Malo (“decedent”), late mother of plaintiff Christine J. Malo (“plaintiff’), owned a residence at 221 Grayson Drive, Clarks Green, Pennsylvania 18411. On or about December 15, 2006, and various times thereafter in December 2006 and January 2007, decedent entered into oral contracts with defendant Joseph Bums d/b/a J. Bums General Contractor (“defendant”) to make home improvements to the property for $37,518.00. Prior to performing the work, defendant agreed with decedent that he would obtain required building permits from the Borough of Clarks Green. Defendant never acquired the required building permits. Despite this, Bums began work on decedent’s property. A “stop work order” was issued by the Borough of Clarks Green as a result of defendant’s failure to obtain the permits. The order prevented further work on decedent’s property.

On February 19, 2007, plaintiff addressed a letter to defendant specifying the problems with the work on the property and the fact that defendant failed to obtain the required permits. Defendant did not resolve the home improvement problems nor did he obtain the required work permits. On or about February 26, 2007, defendant abandoned the building work and never proceeded further. Nor did Bums reimburse decedent. Decedent and her attorney thereafter demanded that the $37,518.00 contract deposits be returned to her. Defendant refused to return the deposits. Decedent died testate, and on May 22,2009, the Register of Wills of Lackawanna County appointed plaintiff as executrix of decedent’s estate.

Prior Litigation on the Exact Matter Before This Flonorable Court

Defendant filed a Chapter 13 bankruptcy petition with the United States Bankruptcy Court for the Middle District of Pennsylvania on January 22, 2007 naming decedent as an unsecured creditor in his bankruptcy petition. On March 5, 2007, the court converted defendant’s Chapter 13 Bankruptcy case to a Chapter 7 Bankruptcy case. Decedent filed an adversary proceeding against defendant in the bankruptcy court on July 6,2007 seeking to remove her unsecured debt from defendant’s bankruptcy case. During the pendency of the bankruptcy proceedings, defendant again visited decedent at her property without ever informing her of his pending Chapter 13 Bankruptcy proceeding and that he had named decedent as an unsecured creditor in it. At the time of his visit, defendant demanded and received two (2) checks from decedent (one for $3,000.00 and one for $3,518.00). Defendant’s receipt of the checks was allegedly in violation of the Bankruptcy Code because the checks should have been made payable to the bankruptcy trustee and not defendant.

The legal and factual issues resolved before the bankruptcy court and before this Honorable Court are identical. In both the bankruptcy court and in this court, the complaints by decedent and plaintiff pleaded the exact factual allegations and legal conclusions against defendant. In both tribunals, the complaints alleged that defendant: 1. committed fraud; 2. breached oral contracts he had with decedent; 3. unduly enriched himself at decedent’s expense; 4. converted decedent’s monies to his own use; and 5. violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

On June 3, 2008 and June 4, 2008, a two-day adversarial proceeding on the matter was held before Judge Opel at the bankruptcy court. See plaintiff’s motion and petition for partial summary judgment at ¶ 17; plaintiff’s complaint at ¶ 10. On July 11,2008, Judge Opel at the bankruptcy court found that defendant defrauded decedent, by having made a materially false representation with the intent to deceive decedent when he fraudulently represented to decedent that he would complete the renovations on her property. Malo v. Burns, Adv. No. 5-07-ap-50119 RNO (Ch. 7 Case No. 5-07-bk-50140 RNO) at 7 (M.D. Pa. July 11, 2008). Judge Opel also dismissed decedent’s unsecured indebtedness from defendant’s Chapter 7 bankruptcy case. Malo v. Burns, Adv. No. 5- 07-ap-50119 RNO (Ch. 7 Case. No. 5-07-bk-50140 RNO) (M.D. Pa. July 11, 2008); Commonwealth of Pennsylvania, Thomas Corbett Jr., Attorney General v. Joseph J. Burns, Order, Adv. No. 5-ap-07-50121 RNO (July 11, 2008). The Honorable Thomas I. Vanaskie denied and dismissed defendant’s appeal. Burns v. Malo, 3:CV-08-1953 (M.D. Pa. Mar. 9, 2010) (affirming the July 11, 2008 order finding debt owed to Erma Malo is nondischargeable). Defendant took no further appeal. Final judgment of the bankruptcy court became the law of this case, when its order was affirmed on appeal by the district court without further appeal. “Adjudication of the bankruptcy court is a final valid judgment on the merits... and this judgment is entitled to full faith and credit in [the state courts].” Mintz v. Carlton House Partners, Ltd., 407 Pa. Super. 464, 475, 595 A.2d 1240, 1246 (1991) (citing U.S. Const. Art. 4 Section 1; 28 U.S.C.A. Section 1738; Delaware Valley Citizens’ Council for Clean Air v. Com. of Pa, 755 F.2d 38 (3rd Cir. 1985), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed. 54 (1985)).

• Pending Action

After defendant received his discharge in bankruptcy from the bankruptcy court, plaintiffs commenced this multicount action against defendant. Plaintiff’s complaint, Malo v. Burns, No. 10-CV-5496 (Aug. 6, 2010). Plaintiffs in this action requested money damages from defendant. Id. With the exception of plaintiff’s request for money damages, this action mirrors the action before the bankruptcy court. As Judge Opel stated in the bankruptcy court’s opinion where he determined that defendant’s debt to decedent was nondischargeable: “.. . the instant parties are already involved in state court litigation over this exact issue.... given the pendency of the state court action, I will refrain from establishing a numerical amount of damages. Malo v. Burns, Adv. No. 5-07-ap-50119 RNO (Ch. 7 Case No. 5-07-bk-50140 RNO) at 6-7 (M.D. Pa. July 11, 2008).

PROCEDURAL SUMMARY

Plaintiff’s brief in support of plaintiff’s motion for partial summary judgment was filed on December 18, 2012. Defendant’s brief in opposition to plaintiff’s motion for partial summary judgment was filed on February 4, 2013.

LEGAL ARGUMENT OF THE PARTIES

Plaintiff’s Motion for Partial Summary Judgment

In order to eliminate possible inconsistent results in judicial verdicts between this Honorable Court and the bankruptcy court, this Honorable Court should grant partial summary judgment to the plaintiffs on the liability issues all as contained in the plaintiff’s complaint based on the doctrine of collateral estoppel.

Defendant’s Argument

The legal and factual issues before the bankruptcy court and this Honorable Court are not identical. The bankruptcy court in no way addressed whether defendant is subject to liability for the count of conversion. Judge Opel’s decision referenced the possibility of unworkmanlike construction work, but he did not make specific findings that reflected that the work performed by defendant was defective and deficient. This salient issue needs to be fully litigated using expert testimony.

LEGAL STANDARD

Collateral Estoppel

Collateral estoppel in the form of issue preclusion will bar relitigation of an issue if the precise issue has been decided in an earlier adjudication by a final judgment on the merits; the party against whom the doctrine is asserted was a party, or is in privity with a party, to the prior proceeding; and the party against whom it is asserted has had a full and fair opportunity to litigate the particular issue in the prior proceeding. Angelico v. Lehigh Valley Hospital, Inc., 2005 WL 5163656 (Lehigh Co. Dec. 2005) (citing Murphy v. Duquense Univ., 777 A.2d 418, 435 (Pa. 2001)); Schultz v. Connelly, 378 Pa. Super. 98, 548 A.2d 294 (1988); Day v. Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313, 1319 (Pa. Super. 1983) (internal citations omitted); Hudson v. Shoemaker, 1992 WL 551115, 16 Pa.D. & C.4th 143 (Phila. Co. Oct. 21, 1992); Middlesex United Presbyterian Church in the United States v. Middlesex Presbyterian Church, 44 Pa. D. & C.3d 98, 1986 WL 20653, (Butler Co. Oct. 30, 1986); Office of Disciplinary Counsel v. Kiesewetter, 585 Pa. 477, 889 A.2d 47 (2005). Application of the doctrine of collateral estoppel ensures consistency of judgments by prohibiting Respondent from denying facts that were previously found to be the facts of the case by an impartial tribunal. Id.

The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit. Schultz v. Connelly, 548 A.2d 294, 296 n.4 (Pa. Super. 1988). See also Hebden v. W.C.A.B. (Bethenergy Mines), 142 Pa. Commw. 176, 187, 597 A.2d 182, 188 (1991); Hudson, 1992 WL 551115. Also unlike res judicata, there is no requirement that there be an identity of parties between the two actions to invoke the bar. Day, 464 A.2d at 1318-19 (internal citations omitted); Matson v. Housing Authority of City of Pittsburgh, 326 Pa. Super. 109, 473 A.2d 632 (1984); Middlesex United Presbyterian Church in the United States, 44 Pa. D. & C.3d 98, 1986 WL 20653.

To apply res judicata, one must meet all four of the following conditions: (1) identity in the thing being sued upon; (2) identity for the cause of action, (3) identity of persons and parties to the action; (4) identity of the quality or the capacity of parties suing or being sued, (emphasis added) In re: Estate of William Cornell, deceased, 2004 WL 5149446, (Ct. Com. Pl., Orphans’ Div. Dec. 29, 2004) (citing Estate of Tower, Appeal of Tower, 463 Pa 93, 343 A.2d 671 (1975); Notoro v. Estate of Hyer, 239 Pa. Super 10, 361 A.2d 766 (1976); see also Jones v. Walker, 442 Pa. Super. 463, 660 A.2d 76 (1995)); In re Jones, 442 Pa. Super. 463, 660 A.2d 76, (1995) (Previous distribution decree in intestate proceeding did not have res judicata effect as to newly discovered heirs petitioning for review of decree; no identity of parties existed).

Summary Judgment

Summary judgment may properly be granted on the grounds of collateral estoppel if the trial court, consistent with Pennsylvania Rule of Civil Procedure 1035(b), determines that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mintz, 407 Pa. Super, at 474, 595 A.2d at 1245 (citing Day, 318 Pa. Super, at 231, 464 A.2d at 1316. In reviewing a summary judgment motion, the court must view the record in the light most favorable to the non — moving party and must resolve in favor of the non-moving party all doubts regarding the existence of a genuine issue of material fact. Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 3, 2.A.3d 1174, 1175 (2010); Vinikoor v. Pedal Pennsylvania Inc., 91A A.2d 1233, 1238 (Pa. Cmwlth. 2009). The moving party bears the burden of demonstrating that there is no genuine issue of material fact that it is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Nissley v. Candytown Motorcycle Club, Inc., 913 A.2d 887, 889 (Pa. Super. 2006). A prior judgment rendered by a court of competent jurisdiction is a matter of record that a party can assert as an incontrovertible fact in a subsequent action, thereby requiring only a legal determination as to the effect of that prior judgment. Day, 464 A.2d 1313.

LEGAL ANALYSIS

Collateral Estoppel

In the present case, all four elements required to assert collateral estoppel against defendant are satisfied.

1. Identity of Issues

First, to determine whether the requisite identity of issues exists, the court must be able to identify with sufficient certainty the issue necessarily decided in the prior case. The necessity of identifying the issue in the prior case requires an examination of the relevant portions of the record in the prior case. See Restatement (Second) of Judgments § 27 comment f. Matson, 326 Pa. Super, at 114, 473 at 632. In Alpensjo v. Sandvik Materials Technology, Inc., 2013 WL 578493 (Lacka. Co. Feb. 13, 2013), this Honorable Court held that, in a worker’s compensation case citing Rothrock v. Rothrock Motor Sales, Inc., 584 Pa. 297, 883 A.2d 511, 517 (Pa. Super. 2005), when the factual issue in the worker’s compensation case decided prior to the case at issue “is not only sufficiently similar [but] virtually identical” to the issue in the action before the court, element one of collateral estoppel is met. Alpensjo, 2013 WL 578493. As was the case in Alpensjo, the legal and factual issues before the bankruptcy court and this Honorable Court in the present case are identical. Thus the first element of collateral estoppel is satisfied.

2. The Prior Action Resulted in Final Judgment on the Merits

The second prong to collateral estoppel is that the prior action resulted in a final judgment on the merits. Alpensjo, 2013 WL 578493, supra. In Alpensjo, this Honorable Court held that the decision rendered by Worker’s Compensation Judge Harris was a final decision since it was never appealed and the time to appeal had expired. Accordingly, prong two was satisfied. Id. Similarly, the second element of collateral estoppel is also met in the present case, because there has been final judgment on the merits on the matter that is at issue before us. The bankruptcy court found that defendant defrauded decedent. Malo v. Burns, Adv. No. 5-07-ap-50119 RNO (Ch. 7 Case. No. 5-07-bk-50140 RNO) at 7 (M.D. Pa. July 11, 2008). Judge Opel’s opinion and order was sustained on appeal by Judge Vanaskie, and Judge Vanaskie dismissed defendant’s appeal. Burns v. Malo, 3:CV-08-1953 (M.D. Pa. Mar. 9, 2010). Since defendant took no further appeal, the affirmed final judgment of the bankruptcy court is the law of this case. Mintz at 475 (citing U.S. Const. art. 4 Section 1; 28 U.S.C.A. section 1738; Delaware Valley Citizens’ Council for Clean Air v. Com. of Pa, 755 F.2d 38 (3rd Cir. 1985), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed. 54 (1985)). The second element of collateral estoppel is therefore met.

3. Defendant was a Party to the Prior Proceeding

The third element of collateral estoppel is also satisfied. In Alpensjo, supra, when defendant was at the worker’s compensation hearing and was also the defendant within the Alpensjo case as well, prong three was met because the parties at both proceedings were either identical or in privity. Id. In the case now before us, defendant, the party against whom the plea is asserted, was also a party defendant to the prior bankruptcy court adjudication. Malo v. Burns, Adv. No. 5-07-ap-50119 RNO (Ch. 7 Case. No. 5-07- bk-50140 RNO) at 7 (M.D. Pa. July 11, 2008); Burns v. Malo, 3:CV-08-1953 (M.D. Pa. Mar. 9, 2010). In the bankruptcy case, decedent Erma L. Malo, mother of the plaintiff initiated the case. Decedent is not the plaintiff in the current action but rather her daughter brings this claim as executrix of her estate. Nevertheless, because the defendants in both matters are the same, the privity requirement for collateral estoppel is satisfied. Fischer v. Dawley, 2009 WL 3244892 (Phila. Co. Aug. 26, 2009). Therefore, prong three is met. We note that because it was plaintiff’s mother (decedent) that was plaintiff in the prior action, we find collateral estoppel but not res judicata as well. Day, 464 A.2d at 1318-19 (internal citations omitted); Matson, 326 Pa. Super. 109, 473 A.2d 632; Middlesex United Presbyterian Church in the United States, 44 Pa. D. & C.3d 98, 1986 WL 20653 (Res judicata requires that there be an identity of parties between the two actions to invoke the bar whereas with collateral estoppel there need only be privity).

4. Defendant Had a Full and Fair Opportunity to Litigate the Issue in the Prior Action

Prong four requires that the party against whom collateral estoppel is being asserted had a full and fair opportunity to litigate the issue in the prior action. Alpensjo, supra. There was a full and fair opportunity for defendant Bums to defend the factual and legal issues posed in the plaintiff’s bankruptcy court adversary proceeding. In the two (2) day adversary proceeding trial before Judge Opel in the bankruptcy court, the defendant’s attorney, Kevin Walsh, Esq., cross-examined all of the plaintiff’s witnesses and the defendant took the stand and testified in his defense. Malo v. Burns, Ch. 7 Case No. 5-07-bk-50140 RNO, Adv. No. 5-07-AP-50119 RNO (July 11, 2008) (noting consolidated two-day trial on Chapter 7 Bankruptcy Matter was held June 3, 2008)); app. denied, Burns v. Malo, 3:CV-08-1953 at 2 (Mar. 9, 2010); See also plaintiff’s brief in support of plaintiff’s motion for partial summary judgment against the defendants with request for an expedited hearing on plaintiff’s damages at 10 (Feb. 4, 2013). Absent disqualifications of the depositions and the hearing transcripts that would prohibit the use of the doctrine of collateral estoppel, prong four of collateral estoppel is met. Alpensjo, supra.

Summary Judgment

Having determined we have identical factual issues and that the elements or prongs of collateral estoppel have also been met, we now review whether plaintiff meets the elements needed to be granted partial summary judgment. Alpensjo, supra.

The Pennsylvania Rules of Civil Procedure that govern summary judgment instruct that the court shall enter judgment whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense. Id. (citing Pa.R.C.P. 1035). See Id.; Schultz v. Connelly, 548 A.2d 294 (Pa. Super. 1988); Office of Disciplinary Counsel, 585 Pa. 477, 889 A.2d 47 (where the court held that the factors for collateral estoppel were met and no unfairness had arisen from the application of collateral estoppel in an action based upon a civil verdict of fraud); See also Santiago v. DSWA Inc. 2010 WL 2357858 (Lancaster Co. Mar. 8, 2010) (where when all four elements of collateral estoppel were met, the court granted defendant’s motion for partial summary judgment). In this case all four elements are collateral estoppel are met. Partial summary judgment is appropriate. Accordingly, plaintiff’s motion for partial summary judgment is granted.

Plaintiff’s Request for an Expedited Hearing on Plaintiff’s Damages

Plaintiff seeks damages for defendant’s fraudulent misrepresentation. In the bankruptcy court proceeding on the facts of this case, when Judge Opel determined that defendant defrauded decedent, he stated:

It is apparent to this Court that Erma Malo did suffer damages as a result of the Debtor’s representations. However, almost no testimony was presented to the Court regarding actual monetary damages.....given the pendency of the state court action, I will refrain from establishing a numerical amount of damages.

Malo v. Burns, Adv. No. 5-07-ap-50119 RNO (Ch. 7 Case. No. 5-07-bk-50140 RNO) at 6-7. As was the case when this matter was presented before Judge Opel, no testimony has yet been presented to this Honorable Court regarding Plaintiff’s issue of damages.

A trial court may order bifurcation of trial issues in furtherance of convenience or to avoid prejudice. Ball v. Bayard Pump & Tank Co, Inc., 2008 WL 8797493 (Montgomery Co. Apr. 29, 2008) (citing Ptak v. Masontown Men’s Softball League, 607 A.2d 297, 299-300); Coleman v. Philadelphia Newspaper, 570 A.2d 552, 555 (Pa. Super. 1990); Sacco v. City of Scranton, 540 A.2d 1370, 1372 (Cmwlth. Ct. 1988)). The decision whether to bifurcate is entrusted to the sound discretion of the trial court, which is in the best position to evaluate the necessity for such measures. Stevenson v. General Motors Corp., 521 A.2d 413, 415 (Pa. 1992). “[In] order to bifurcate any trial issues, there must be a determination and demonstration that the bifurcated issues are ‘totally independent’ of each other before bifurcation.” Ball, 2008 WL 8797493. Before ordering bifurcation, atrial court should carefully consider the issues raised, and the evidence to be presented, in order to determine whether the liability and damages issues are interwoven. Stevenson, 521 A.2d at 419; Ball, 2008 WL 8797493. Using our trial court discretion, this court bifurcates the issue of liability from the issue of damages. Stevenson, 521 A.2d at 415. The expedited hearing to determine plaintiff’s monetary damages will be held on June 20, 2013 at 9:30am. An appropriate order follows.

ORDER

And now, on this 1st day of May 2013, plaintiff’s motion for partial summary judgment is granted. An expedited hearing on plaintiff’s damages is scheduled for June 20, 2013 at 9:30am before this Honorable Court.

      . Borough of Clarks Green, Stop Work Order Re: Construction without a Permit, issued by Zoning Officer Willard Ziesemer (Feb. 26, 2007).

      . See Malo v. Burns, No. 5-07-bk-50140 RNO, Adv. No. 5-07-ap-501119 RNO at 5 (July 11, 2008) (where, in facts of opinion where bankruptcy court held decedent’s defendant’s debt pursuant to dection 523(a)(2)(A) was non-dischargeable, the court notes the procedural history of defendant’s Chapter 7 bankruptcy case); second amended complaint objecting to the discharge of the debt of Erma Malo—Chapter 7 case, at ¶ 7 (Feb. 1, 2008).

      . See second amended complaint objecting to the discharge of the debt of Erma Malo—Chapter 7 case, at ¶ 8 (Malo v. Burns, No. 5-07-bk-50140 RNO, Adv. No. 5-07-ap-501119 RNO) (Feb. 1, 2008).

      . See Burns v. Malo, 3:CV-08-1953 (M.D. Pa. Mar. 9, 2010); plaintiff’s motion and petition for partial summary judgment ¶ 15 (Dec. 18, 2012) (noting decedent filed suit under 11 U.S.C. section 523(a)(2) (A) to deem defendant’s debt nondischargeable).

      . Defendant visited decedent on Jan. 26, 2007 and Feb. 16, 2007. See plaintiff’s complaint at ¶ 21; plaintiff’s brief in support of plaintiff’s motion for partial summary judgment against the defendants with request for an expedited hearing on plaintiff’s damages, No. 10-CV-5496 (Dec. 12, 2012).

      . Plaintiff’s motion and petition for partial summary judgment ¶ 16 (Dec. 18, 2012) (Stating that in plaintiff’s adversary proceeding at the bankruptcy court, plaintiff alleged fraud, breach of contract, unjust enrichment, conversion, and a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection law; plaintiff’s complaint, Malo v. Burns, No. 10-CV-5496 (Aug. 6, 2008).

      . In this case, the bankruptcy court determined the nondischargeability of a debt pursuant to 11 U.S.C. section 523 (a)(2)(A) and 11 U.S.C. section 523(a)(7). See plaintiff’s amended complaint objecting to the discharge of the debt of Erma Malo — In re: Joseph J. Burns, debtor Chapter 7 case, Case No. 05:07-bk-50140, Malo v. Burns, Adversary No. 05:07-50119, at 1.

      . See plaintiff’s complaint, Malo v. Burns, No. 10-CV-5496 at ¶¶ 9-16; (Aug. 6, 2010), Malo v. Burns, No. 10-CV-5496; plaintiff’s brief in support of plaintiff’s motion for partial summary judgment at 2-3 (Dec. 18, 2012); Malo v. Burns, Adv. No. 5-07-ap-50119 RNO (Ch. 7 Case. No. 5-07-bk-50140 RNO) at 7 (M.D. Pa. July 11, 2008) at 7 (stating that the bankruptcy court and state court cases regard the exact issue).