author: LACHMAN, J.,

text:
    Frost v. Fox Rothschild, LLP

      Mark B. Frost, pro se.

      Thomas D. Paradise and Robert S. Tintner, for defendant.
    November 12, 2010
   LACHMAN, J.,

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff-Appellant Mark. B. Frost, Esquire (“plaintiff’), appeals from the entry of summary judgment in favor of defendant Fox Rothschild, LLP (“defendant” or “Fox Rothschild”), and the dismissal of this case. This is a legal malpractice action arising out of the divorce of plaintiff from his wife. Plaintiff is an attorney and represented himself in the legal malpractice action.

The divorce action was litigated in the New Jersey Superior Court for Burlington County, Chancery Division/ Family Part. Plaintiff hired defendant Fox Rothschild which assigned Barbara Ulrichsen, Esquire, a Fox Rothschild partner, to represent plaintiff in the divorce. Plaintiff alleges that Ulrichsen was his attorney from June 2004 until the end of 2007, and that Ulrichsen left the defendant’s firm in June 2007. A final judgment of divorce was entered on August 25, 2006.

Plaintiff filed two separate actions in the Philadelphia Court of Common Pleas against Fox Rothschild. The first action was commenced by writ of summons on May 27, 2008, at May Term, 2008, No. 03292. The second was commenced by complaint on July 23, 2008, at July, Term 2008, No. 03191. Fox Rothschild filed a motion to consolidate both cases on December 22, 2008. Judge Howland W. Abramson granted the consolidation motion on January 20,2009, and ordered that both “matters are to be consolidated under the May Term, 2008 NO 3292.”

A complaint was never filed in the May Term case. Instead, the parties treated the complaint filed in the July Term case as applicable to both actions. Both parties attached copies of that complaint to their filings on the summary judgment motion at issue in this appeal.

The first count of the complaint asserts a cause of action for legal malpractice based on the following alleged acts of negligence by defendant in the divorce case:

(a) negligently representing Frost;
(b) failing to obtain a vocational expert;
(c) failing to reach a settlement agreement as authorized by plaintiff;
(d) failing to provide valuations of plaintiff’s personalty;
(e) negligently causing the plaintiff to pay $19,835 of his ex-wife’s expert witness fees;
(f) negligently causing the plaintiff to pay 30%, or $48,367, of his former wife’s attorney’s fees and costs;
(g) failing to maintain attorney-client confidentiality;
(h) negligently causing the matter to become unnecessarily complex and protracted;
(i) failing to appeal the court’s order of equitable distribution in the amount of $269,036.24; and
(j) negligently representing the plaintiff with respect to post-trial motions and post-trial relief.

The second count of the complaint averred a claim for breach of fiduciary duty based on the following:

Plaintiff learned from third parties not affiliated with the litigation that certain personal and confidential information was stated to them concerning the representation in this matter.

The first case management order in the legal malpractice action required plaintiff to “identify and submit curriculum vitae and expert reports of all expert witnesses intended to testify at trial to all other parties not later than 04-JAN-2010.” See, case management order dated November 14, 2008, Abramson, J.

On December 7, 2009, Judge Abramson granted the plaintiff’s motion for extraordinary relief and extended all case management deadlines by sixty days. The new case management order required that “plaintiff shall submit expert reports not later than 01-MAR-2010.” See, case management order dated December 7, 2009, Abramson, J. On March 17, 2010, Judge Abramson denied plaintiff’s second motion for extraordinary relief and refused to extend the case deadlines.

Defendant filed a summary judgment motion on April 5, 2010. The sole issue raised by the motion was whether summary judgment should be granted because the plaintiff never identified an expert witness and did not produce an expert report. Defendant contended that the standard of care issues in this case were complex and were beyond the ordinary understanding of a juror so that expert testimony was needed to explain those issues. Plaintiff asserted that the standard of care issues were so simple that the jury could understand them without the need for an expert to explain them.

The court agreed with the defendant and granted the motion for summary judgment in an order dated June 29, 2010. The order was placed on the docket on July 1,2010. Plaintiff filed a timely notice of appeal on July 30, 2010.

On August 26,2010, the court entered an order pursuant to Pa.R.A.P. 1925(b) requiring plaintiff to serve upon the court a copy of the statement of issues he intended to raise on appeal within 21 days. On September 16, 2010, plaintiff filed his Pa.R.A.P. 1925(b) statement setting forth the following issues on appeal:

1. The Judge wrongfully granted defendants [sic] motion for summary judgment on June 29, 2010. Under Pa.R.C.P. 1035.2, a court shall enter summary judgment if “there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery.” Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186, 194-195 (Pa. 2007). In this case summary judgment was not appropriate because there is a genuine issue of fact in dispute: whether or not Ulrichsen and defendant Fox Rothschild failed to exercise ordinary skill in representing plaintiff in his divorce.
2. Plaintiff submitted evidence sufficient to prove legal malpractice, even without expert testimony. Plaintiff does not need to submit expert testimony in order to prove that these actions and omissions by defendant constituted malpractice. Expert testimony is not required when the matter under consideration is simple and the lack of ordinary care is obvious and within the range of comprehension of the average juror. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Storm v. Golden, 538 A.2d 61(Pa. Super. 1988); Burns v. City of Philadelphia, 504 A.2d 1321 (Pa. Super. 1986). In this case, defendant’s failures to exercise ordinary care will be easy for jurors to understand without the benefit of an expert. Expert testimony is therefore unnecessary in this case.
3. Plaintiff submitted evidence sufficient to support a claim for breach of fiduciary duty. In a legal malpractice case, a breach of contract occurs when an attorney fails to follow a specific instruction of his client. Hoyer v. Frazee, 470 A.2d 990 (Pa. Super. 1984). In the instant matter, defendant clearly breached its contract with plaintiff because defendant failed to follow plaintiff’s instructions to settle the case, which resulted in damages in excess of one hundred thousand dollars in attorney’s fees and other monetary damages.

The June 29, 2010, order granting summary judgment should be affirmed because none of the issues set forth in plaintiff’s Pa.R.A.P. 1925(b) statement has merit.

ANALYSIS

A. The Issues in This Case Required Expert Testimony

Plaintiff’s first two issues on appeal will be addressed together because both are dependent upon whether expert testimony was needed in this case.

In order to establish a claim of legal malpractice, a plaintiff/aggrieved client must demonstrate three basic elements:

(1) employment of the attorney or other basis for a duty;
(2) the failure of the attorney to exercise ordinary skill and knowledge; and
(3) that such negligence was the proximate cause of damage to the plaintiff. Kituskie v. Corbman, 552 Pa. 275, 281, 714 A.2d 1027, 1029 (1998).

“Expert testimony becomes necessary when the subject matter of the inquiry is one involving special skills and training not common to the ordinary lay person.” Storm v. Golden, 538 A.2d 61, 64 (Pa. Super. 1988). Thus, “by its very nature, the specific standard of care attributed to legal practioners [sic] necessitates an expert witness’ explanation where a jury sits as the fact finder.” Id. at 375-376, 538 A.2d at 64.

However, “[i]f all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as are witnesses possessed of special training, experience or observation, then there is no need for the testimony of an expert.” Storm at 376, 538 A.2d at 64, quoting Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967).

Storm refused to establish a “bright line” rule for when expert testimony is required in legal malpractice actions, explaining:

Legal malpractice claims run a wide gamut of circumstances from clear cut claims of a breach of an attorney’s duty for allowing the statute of limitations to run against the former client’s cause of action to the complex determination required of a claim of breach of duty involving the attorney’s choice of trial tactics in which a layperson’s judgment obviously requires guidance. Between these two extremes lie a myriad number of legal malpractice actions for which the necessity of expert evidence to establish the attorney’s duty and breach thereof will not be readily evident without careful examination of the factual circumstances upon which they arise. Generally, the determination of whether expert evidence is required or not will turn on whether the issue of negligence in the particular case is one which is sufficiently clear so as to be determinable by laypersons or concluded as a matter of law, or whether the alleged breach of duty involves too complex a legal issue so as to warrant explication by expert evidence. Storm at 376-377, 538 A.2d at 65 (case citations omitted).

The court in Storm held that expert testimony was necessary to explain a lawyer’s duty and responsibility in connection with representing a client in a real estate transaction. The court disagreed “with appellant’s assertions that the sale of real estate is an elementary and non-technical transaction which requires only simple common sense. At issue is not the simplicity of the transaction but the duty and degree of care of the attorney. Whether an attorney failed to exercise a reasonable degree of care and skill related to common professional practice in handling a real estate transaction is a question of fact outside the normal range of the ordinary experience of laypersons.” Storm at 377, 538 A.2d 65. (emphasis added, citation omitted)

Summary judgment was appropriate as a matter of law because each of the plaintiff’s claims of legal malpractice required expert testimony on the issues of standard of care and breach of that standard, or was not supported by evidence in the record. Consequently, plaintiff failed to demonstrate the existence of a genuine issue of material fact as to any claim.

1. Failure to settle the divorce case

Plaintiff stated in his response to the summary judgment motion that attorney Ulrichsen “failed to settle the [divorce] case when plaintiff wished to settle and was willing to accept his former wife’s settlement terms.” The only evidentiary support plaintiff cited for this assertion was pages 16-17 of his deposition which he attached as part of Exhibit “B” to his response. The referenced testimony not only did not support plaintiff’s factual claims, it directly refuted them.

Plaintiff testified in his deposition that after the parties agreed in principal to a settlement, attorney Ulrichsen obj ected to particular language in the settlement agreement that would have required plaintiff to pay higher amounts of alimony as his income rose.

Plaintiff testified as follows:

She said, No, this provision is really one, whereby, you would be subjected to come into court all of the time. And she said, I really want you to go forward with this trial. I said okay.

Exhibit “B” p. 17 (emphasis added). This testimony clearly states that the plaintiff, who is himself an attorney, agreed with attorney Ulrichsen’s recommendation to reject the settlement and to proceed to trial. Plaintiff’s assertion that attorney Ulrichsen disobeyed his instructions is not supported by plaintiff’s own testimony or by any other evidence in the record.

This is not a case where the attorney failed to communicate settlement offers to her client. Nor is this a case where the attorney failed to communicate to the opposing side her client’s acceptance of the opponent’s settlement offer.

Instead, this case involves the standard of care applicable to an attorney presented with a proposed settlement agreement in a divorce case and the reasonableness of her recommendation to forego settlement because a particular provision in the settlement agreement was too onerous. Like the real estate transaction in Storm, whether attorney Ulrichsen failed to exercise a reasonable degree of care and skill related to common professional practice in handling the divorce action is a question of fact outside the normal range of the ordinary experience of laypersons. Storm at 377, 538 A.2d 65.

Avery similar situation occurred in Weldes v. Walter, No. 01-02444 (C.P. Montgomery, April 13,2006, J. Nicholas), aff’d mem., 919 A.2d 985 (Pa. Super. 2007). That case involved the representation of an attorney for plaintiff-wife concerning the husband’s proposed marital property settlement agreement. The trial court granted summary judgment because plaintiff-wife did not have an expert witness to opine as to the defendant attorney’s breach of the standard of care applicable to an attorney negotiating a marital property settlement agreement. Without such an expert, the plaintiff did not adduce sufficient evidence to establish the existence of genuine issues of material fact as to (1) whether the attorney’s representation of plaintiff fell below the level of competence for an attorney, and (2) whether the attorney’s alleged legal malpractice was the proximate cause of the damages claimed by plaintiff. Slip op. pp. 5-6.

Expert testimony was necessary regarding Ulrichsen’s analysis of the proposed settlement agreement and the validity of Ulrichsen’s recommendation to forego settlement, and concerning the propriety of Ulrichsen’s strenuous recommendation to go to trial. Summary judgment was properly granted on those issues because plaintiff failed to have an expert witness.

2. Other alleged instances of legal malpractice

Plaintiff claimed that attorney Ulrichsen was negligent by failing to obtain a vocational expert who would have testified to the earning potential of plaintiff’s ex-wife because she was a college graduate and had a history of employment. Plaintiff asserted in his deposition that his ex-wife’s potential salary could have been used to offset the plaintiff’s income when the divorce court was deciding the issue of alimony. Complaint ¶ 19; plaintiff’s response to summary judgment motion exhibit “B”, p. 24 (“Exhibit ‘B’”). Plaintiff testified that he knew prior to trial that a vocational expert had not been retained. Id. at 13. He also testified that when the trial began he was not “upset” over the lack of a vocational expert because he thought “there was a good chance the case was going to resolve itself and settle.” Id. at 14. Plaintiff ratified Ulrichsen’s failure to obtain a vocational expert because he obviously knew that he did not have a vocational expert when he agreed to forego settlement and to proceed to trial.

Furthermore, whether attorney Ulrichsen failed to exercise a reasonable degree of care and skill related to common professional practice in handling the divorce action by failing to retain a vocational expert is a question of fact outside the normal experience of ordinary laypersons. Consequently, the plaintiff was required to obtain an expert witness for this legal malpractice case. Because plaintiff failed to obtain an expert witness, summary judgment was properly granted on this issue.

Plaintiff asserted that attorney Ulrichsen was negligent by failing to file a post-trial motion on the issue of the trial court’s right “to impose an obligation on the evaluation of my business and payment on the evaluation of the business based on a case that was on appeal.” Exhibit “B”, p. 53. Plaintiff claimed that the failure to file such a post-trial motion resulted in his inability to appeal that issue. Plaintiff failed to produce any admissible evidence to support those factual claims.

Plaintiff admitted that his attorney filed a post-trial motion in the divorce action. Exhibit “B”, p. 52. Plaintiff did not attach a copy of that motion to his response to the summary judgment motion. The post-trial motion itself, not plaintiff’s testimony, was the only admissible evidence concerning the contents of the motion. See Pa.R.E. 1002 (“to prove the contents of a writing ... the original writing ... is required”). Plaintiff failed to meet his burden of coming forward with admissible evidence to demonstrate the existence of a genuine issue of material fact concerning the alleged deficiencies of the post-trial motion. Pa.R.C.P. 1035.3(a). See InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 626 (Pa. Super. 2006) (“a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor”; internal quotation marks and case citation omitted).

Moreover, this issue was beyond the ordinary experience of a jury and required expert testimony. See Woods v. Egler, 52 Pa.D.&C.4th 505, 512-513 (C.P. Allegh. 2001, J. Baer) (granting nonsuit because plaintiff did not have an expert witness to advise the jury as to the nature, type and extent of review and preparation an attorney must go through before entering his appearance and prosecuting a case on appeal; these issues “were far too complex to be presented to a jury without the guidance of expert testimony”), aff’d mem., 808 A.2d 260 (Pa.Super. 2002); Hepps v. LaBrum & Doak, 57 Pa.D.&C.4th 124, 127-128 (C.P. Phila. 2001, J. New) (summary judgment granted because plaintiff did not have an expert witness (1) to advise the jury as to the circumstances under which it is appropriate to place funds in escrow and the role of an attorney in advising his client about escrow, (2) to explain to the jury under what circumstances an attorney is permitted to withdraw his appearance for a party, and (3) to interpret the language of an insurance policy and any alleged breaches of contract as they related to the plaintiff’s disability), aff’d mem., 797 A.2d 1029 (Pa. Super. 2002). In the present case, summary judgment was properly granted to the defendant on this issue.

Plaintiff next argued that attorney Ulrichsen was negligent by failing to adduce evidence of the value of the personalty in the marital home including artwork, furniture, and other items. Plaintiff testified that he never asked Ulrichsen or anybody at Fox Rothschild to obtain an expert to value the personalty. Exhibit “B” p. 27. Whether Ulrichsen failed to exercise a reasonable degree of care and skill related to common professional practice in handling the divorce action by failing to adduce such testimony is a question of fact outside the normal range of the ordinary experience of laypersons. Consequently, the plaintiff was required to obtain an expert witness for this legal malpractice case. Because plaintiff failed to obtain an expert witness, summary judgment was properly granted on this issue.

Lastly, plaintiff asserted that attorney Ulrichsen was negligent by allowing the divorce action to become unnecessarily complex and protracted. Plaintiff contended that as a result of the delay caused by Ulrichsen, plaintiff was ordered to pay 30 percentof his ex-wife’s counsel fees and costs in the divorce action. Plaintiff failed to produce any admissible evidence to support those factual claims.

Plaintiff relied on paragraphs in his complaint which purport to quote an opinion issued by New Jersey Superior Court Judge Jeanne T. Covert, the trial judge in the divorce action. Plaintiff also relied on his deposition testimony where he stated his uncertain recollection of what Judge Covert did and her reasons for doing it. Exhibit “B” p. 37. Plaintiff did not attach a copy of Judge Covert’s opinion to his complaint and he did not attach a copy of it to his response to the summary judgment motion. This court was barred from considering the factual allegations in plaintiff’s complaint in deciding this summary judgment motion. Pa.R.C.P. 1035.3(a) (“the adverse party may not rest upon the mere allegations or denials of the pleadings”). See InfoSAGE, Inc. v. Mellon Ventures, L.P., 896 A.2d 616, 626 (Pa. Super. 2006) (“the mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial”; internal quotation marks and case citation omitted).

Judge Covert’s opinion and/or the trial transcript are the only valid evidence of what she did and why she did it. See Pa.R.E. 1002, 1003, 1004, and 1007 discussed on page 308 and n. 4, above.By not producing a copy of Judge Covert’s opinion or the trial transcript, plaintiff failed to produce any admissible facts to support his claim that Ulrichsen was negligent by allowing the divorce action to become unnecessarily complex and protracted. Summary judgment was proper as a matter of law because plaintiff failed to meet his burden of coming forward with admissible evidence to demonstrate the existence of a genuine issue of material fact. Pa.R.C.P. 1035.3(a); InfoSAGE, 896 A.2d at 626 (“a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor”; internal quotation marks and case citation omitted).

B. Breach of fiduciary duty

The breach of fiduciary duty claim set forth in count II of plaintiff’s complaint stated: “Plaintiff learned from third parties not affiliated with the litigation that certain personal and confidential information was stated to them concerning the representation in this matter.” Complaint ¶ 37. This same claim is asserted as negligence in count I. Complaint ¶ 33(g). Plaintiff never mentioned either version of this claim in opposing defendant’s summary judgment motion. Plaintiff did not present any evidence to support his claims of breach of confidentiality.

In opposing summary judgment on his breach of fiduciary duty claim, plaintiff abandoned the breach of confidentiality claim and substituted a different alleged breach of fiduciary duty, to wit:

In a legal malpractice case, a breach of contract occurs when an attorney fails to follow a specific instruction of his client. ... In the instant matter, defendant clearly breached its contract with plaintiff because defendant failed to follow plaintiff’s instructions. Plaintiff advised Ulrichsen and defendant that he wanted to settle and that he was willing to accept his former wife’s terms. Defendant failed to follow this instruction. Plaintiff’s Brief p. 7.

This is the same issue that is discussed at pages 7-9 of this opinion in connection with the negligence claims in count I of the complaint. The court hereby incorporates by reference that earlier discussion as it applies with equal force to the breach of fiduciary duty issue advanced by plaintiff to oppose summary judgment.

The evidence presented by plaintiff to oppose summary judgment demonstrated that he agreed with attorney Ulrichsen’s recommendation to forego settlement and to proceed to trial. Plaintiff did not present any evidence that Ulrichsen disobeyed his instructions. Plaintiff failed to meet his burden of coming forward with admissible evidence to demonstrate the existence of a genuine issue of material fact. Pa.R.C.P. 1035.3(a); InfoSAGE, 896 A.2d at 625-626. Summary judgment was properly granted on this issue.

CONCLUSION

All of the plaintiff’s claims of negligent lawyering were beyond the ordinary knowledge or experience of a layman. Consequently, expert testimony was required to establish the standard of care and the breach of that standard. Plaintiff’s failure to obtain an expert to testify on his behalf doomed his case. Moreover, plaintiff did not provide evidence to support his factual claims and what evidence he did present directly contradicted his claims. Plaintiff failed to meet his burden of coming forward with admissible evidence to demonstrate the existence of a genuine issue of material fact that would prevent the entry of summary judgment. Consequently, summary judgment was properly granted to the defendant and the action dismissed.

For the reasons stated above, the Superior Court should affirm this court’s order of June 29,2010, granting the motion for summary judgment of defendant Fox Rothschild, LLP, and dismissing the plaintiff’s action.

      . In responding to the summary judgment motion, plaintiff did not state that he would give expert opinion testimony, did not state that he was capable of explaining the legal concepts to the jury, and did not argue that his own testimony was sufficient to meet the requirement for expert evidence.

      . Expert testimony is not necessary when the legal malpractice consists of the attorney’s failure to communicate settlement offers to his client or to investigate and evaluate such offers. Rizzo v. Haines, 520 Pa. 484, 502, 555 A.2d 58, 66-67 (1989). “It is well within the ordinary knowledge and experience of a layman jury to recognize that... the failure of an attorney to disclose [settlement offers] is a breach of the professional standard of care.” Id. at 502, 555 A.2d at 67, quoting Joos v. Anto-Owners Ins. Co., 94 Mich. App. 419,423,288 N.W.2d443, 445 (1979). Rizzo also held that expert testimony was not needed to detail the fiduciary obligations of an attorney who engages in financial transactions with his client, since these obligations are established by law, the Code of Professional Responsibility, and the Model Rules of Professional Conduct. 520 Pa. at 503, 555 A.2d at 67.

      . Weldes is available at www.palawlibrary.com.

      . A “duplicate” would have sufficed. See Pa.R.E. 1003. The exceptions to the Best Evidence Rule set forth in Pa.R.E. 1004 (admissibility of other evidence of contents) and Pa.R.E. 1007 (testimony or written admission of party against whom the writing is offered), do not apply to the present case.

      . Rule 1035.3. Response. Judgment for failure to respond
      (a) Except as provided in subdivision (e), the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
      (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
      (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.
      Pa.R.C.P. 1035.3(a).


source: Caselaw Access Project

author: SCHMEHL, J.,

license: Public Domain

text:
    Reinhart v. Reinhart

      C.P. of Berks County,
    no. 05-27 (ID #2).

      Frederick R. Mogel and Scott N. Jacobs, for plaintiff.

      David S. Sobotka, for defendant.
    September 30, 2010
   SCHMEHL, J.,

On October 1, 2009, the court held a custody trial in this matter. A custody order was issued on October 6, 2009. On November 5, 2009, mother filed a petition for reconsideration which was later withdrawn. On July 20, 2010, mother filed a petition to vacate the October 6,2009 custody order, to have a new trial granted, and to have the undersigned recuse himself as judge on the case. After holding a conference with counsel and further considering the averments of the petition and response thereto, the court entered an order on August 18, 2010 dismissing the petition with prejudice. Mother has filed a timely appeal to the order.

Mother’s petition complains that Robert W. Gill, Ed.D. performed sexual evaluations and testified as an expert witness despite not being a licensed psychologist, that Andrea W. Sledge, M.S.W. performed custody evaluations and testified as an expert witness without being a licensed social worker, and that the failure of either of these experts to be licensed is after-discovered evidence justifying a new trial. Mother claims that she was unaware that neither expert was licensed until after the trial, when she hired a private investigator who revealed the lack of licensure to her. The private investigator also revealed to her that Dr. Gill was also subject to a consent agreement and order which he entered into with the bureau of professional and occupational affairs whereby he agreed to not hold himself out as a licensed psychologist or represent himself independently as a psychologist!

Mother believes that the information she learned from the private investigator entitles her to a new trial. In her petition, she cites Commonwealth, ex rel. Myers v. Stern, 509 Pa. 260, 264, 501 A.2d 1380, 1382 (1985), for the standard by which a new trial may be justified on the basis of after discovered evidence: “the evidence must have been discovered after the trial and must be such that it could not have been obtained at the trial by reasonable diligence, must not be cumulative or merely impeach credibility, and must be such as would likely compel a different result.” Recognizing that previous counsel stipulated to the expertise of both experts, mother cites to a case which she believes excuses her previous counsel’s stipulation to the experts ’ qualifications because the experts were well known to the court and to members of the bar, no one had any reason to believe their credentials were flawed, and under such circumstances it was reasonable to rely on assertions that the witnesses credentials were accurate. This last argument presupposes that the experts’ credentials were indeed flawed.

Applying the facts of this case to each element of the standard by which a new trial should be granted on the basis of after-discovered evidence, it is clear that mother is not so entitled to a new trial. The first element is that the evidence must have been discovered after the trial. For purposes of this opinion, the court can assume that mother learned only after the trial that neither expert was licensed in their respective fields of expertise; however, the court notes the incredibility of such statement given the court’s analysis of the second element.

The second element is that the evidence must be such that it could not have been obtained at the trial by reasonable diligence. Certainly mother had the ability to conduct an examination of each expert witness on his or her credentials rather than stipulating to the expertise of each witness. Arguably, mother and her counsel were excused of this reasonable diligence of voir dire on qualifications by the fact that each expert was on the court-approved evaluators list, was well known to the court and members of the bar, and no one had any reason to suspect flawed credentials. The court says “arguably” because the court does not believe the credentials to be flawed. If licensure was a concern to mother, she was on immediate and apparent notice that at least one expert was not licensed. Ms. Sledge holds herself out as M.S.W. (Master’s of Social Work), not L.S.W. (Licensed Social Worker). Dr. Gill holds himself out as Ed.D. (Doctor of Education), not Licensed Psychologist, Doctor of Psychology, etc., and his credentials and the evaluation he performed in this matter are not such as require licensure under the Professional Psychologist Practice Act, 63 P.S. §1201 et seq. With reasonable diligence at any time during the pendency of this matter, mother would have known the experts were not licensed and further that such licensure was and is unnecessary.

Third, the evidence must not be cumulative or merely impeach credibility. At its basest level, mother’s argument that these experts could not have given meaningful and meritful reports to the court simply because they were not licensed, or licensed in the so-called appropriate field, and therefore their reports and evaluations cannot be relied upon by the court is an argument designed precisely to impeach the credibility of these experts and their work product. These experts did not need licenses to conduct their evaluations or to know what they were doing. It is clear to the court that Dr. Gill is not required to have a license under the Professional Psychologist Practice Act per the terms of §1203(3), and perhaps even §1203(4) and that Ms. Sledge is not required to have a license under the social workers, marriage, and family therapists and professional counselors act per the express terms of 63 P.S. § 1902 (“.. .this act regulates only those who hold themselves out as licensed social workers...”.). Furthermore, a lack of a license does not erase their respective qualifications and in fact, as stated above, they have not held themselves out as being licensed. Their skills and expertise are based on years of training and experience and hold value and credibility with this court despite the lack of unnecessary licenses.

Fourth, the evidence must be such as would likely compel a different result. Again, there is no requirement that either expert be licensed for the purposes of the evaluations and reports they conducted in this custody matter. Again, licensed or not, they possess the skill sets required of them to do the work they were retained to perform. License or no license, their testimony was credible. In short, the “after discovered evidence” would not compel a different result.

Based on the foregoing, the court determined there was no basis to vacate the October 6, 2009 custody order and grant a new trial. The evidence that mother attacks was credible and properly admitted and as such caused no taint to the undersigned to warrant recusal.

For the foregoing reasons, the court entered its order dismissing mother’s petition.

      . Mother has changed her legal counsel repeatedly, most recently retaining one firm for the October 2009 trial, another for reconsideration, and now another for this petition and appeal.


author: BURR, J.,

text:
    King v. Riverwatch Condominium Association

      C.P. of Delaware County,
    no. 08-50227.

      Thomas P. Gannon, for plaintiff.

      Robert C. Ewing, for defendant.
    November 16, 2010
   BURR, J.,

The plaintiff, Daniel King, has appealed from this court’s order denying his motion for reconsideration of the order dismissing his motions for post-trial relief and to allow their refiling nunc pro tunc. The said motion was filed subsequent to the sustaining of the preliminary objection of the defendant, Riverwatch Condominium Owners Association, and striking the plaintiff’s motions for post-trial relief with prejudice on grounds that they had been untimely filed.

The plaintiff filed this lawsuit with the expectation of having the defendant reimburse him for costs expended to replace and jack up a defective steel horizontal beam in the roof of the garage situated on the lowest level of his four story condominium unit. Following decisions in plaintiff’s favor at the district justice and compulsory arbitration levels, the matter was assigned to this court for resolution sitting without a jury. The court, on June 21,2010, entered a verdict against the plaintiff on all of his claims, and in favor of the defendant on its counterclaim against the plaintiff in the amount of $8,500.17 representing fines and attorney fees deemed collectible from October 31, 2007 pursuant to the defendant’s rules and regulations, plus recoupment of the costs to defendant for making the necessary repairs in the defendant’s garage. (Rules and Regulations of the Riverwatch Condominium Association appended as exhibit E to the defendant’s answer to complaint with new matter and counterclaim, p. 5 “Miscellaneous” - “Litigation Against Council or Association by a Unit Owner”; notice memorandum from the defendant’s board of directors dated October 31, 2007 informing plaintiff of $100/day fine for each day he refused to allow the defendant to enter his unit and perform the necessary work. Id., Exhibit D)

The plaintiff’s appeal from the foregoing verdict of this court prior to the disposition of his motions for post-trial relief was discontinued by the Pennsylvania Superior Court on the plaintiff’s praecipe prior to disposition of the defendant’s motion to quash the appeal for being non-cognizable. Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491, 496 (2002)(after trial court enters decision at law or equity, an appellant must file post-trial motions before bringing appeal). Plaintiff’s motions for post-trial relief were dismissed with prejudice here below by an order docketed on June 21, 2010 on grounds that they had been untimely filed. The ensuing discussion will show that the plaintiff did not protect his appellate rights following that decision, but waited until after the court had ruled upon his motion to reconsider the order striking his motions for post-trial relief with prejudice and plea to refile them nunc pro tunc. The result was that the instant appeal was filed eight days after the 30-day deadline for filing an appeal from the court’s final order striking the plaintiff’s motions for post-trial relief with prejudice had lapsed.

The plaintiff has submitted the following concise statement of errors and rulings complained of on appeal asserting that dereliction by the Office of Judicial Support of this court caused lateness in his receipt of notice of the docketing of the verdict/judgment in this case that caused lateness in the filing of his motions for post-trial relief:

1. The [tjrial [cjourt erred in its interpretation of Pa.R.C.P. Rule 227.1 to the effect that the [p]laintiff must file Post-Trial Motions within 10 days after the physical entry in the docket of the court’s June 21, 2010 verdict/judgment. The court failed to apply and give effect to Pa.R.C.P. Rule 236 and Pa.R.C.P. 108. Pa.R.C.P. 236 (Rule 236) requires the Office of Judicial Support to provide a written notice to the [pjlaintiff’s attorney of the entry of the verdict/judgment. Pa.R.C.P. Rule 108 provides that the date of entry of the verdict/ judgment for the purpose of filing Post-Trial Motions is the date on which the Office of Judicial Support gives the required notice to the [p] laintiff’s attorney.
2. The [t]rial [c]jourt erred in not allowing [pjlaintiff to file [p] ost- [t]rial [m]otions nunc pro tunc, because the failure of the Office of Judicial Support to notify the [p] laintiff’s attorney of the entry of the verdict/judgment is a breakdown of the court’s operation necessitating the grant of an appeal nunc pro tunc. West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975); Weiman By Trahey v. Philadelphia, 129 Pa. Commonwealth Ct., 25, 30, [564 A.2d 557] (1989).
3. The [t]rial [c]ourt erred in not following the rule set down in Weiman By [Trahey] v. Philadelphia [supra] holding that the entry in the docket is not conclusive as to whether the [pjrothonotary actually sent notice pursuant to the rules of civil procedure.
4. The [t]rial [c]ourt erred in not applying the precedent set down in Nixon v. Nixon, 329 Pa. 256, [198 Atl. 154] (1938), which held that the court [should] allow the filing of an appeal nunc pro tunc where the prothonotary failed to notify plaintiff’s attorney of the entry of an order.
5. The [t]rial [c]ourt erred in its conclusion that the mailing to [p] laintiff’s attorney by the court of a courtesy copy of the verdict/judgment, which did not contain any notation when it was entered in the docket, was proper notice to the attorney of its entry, because it is established that there is no exception which allows actual or constructive notice from a source other than the Prothonotary to begin the running of the 10-day period for filing post trial motions. Dreher [Twp.] Bd. v. Solitron Develop Co., [333 Pa. Super. 33, 481 A.2d 1207] (1984).
6. The [t]rial [c]ourt erred in its failure to follow the precedent set down in and [sic] City of Phila v. Tasker, 119 Pa. Commonwealth Ct. 519, 535, [547 A.2d 1261] (1988), which held that lack of receipt of the required rule 236 notice constitutes a reasonable excuse for plaintiff not filing his post trial motions within 10 days of the entry of the verdict/judgment.
7. The [tjrial [c]ourt erred in not applying the precedent set forth in Berkowitz v. Mayflower Securities, Inc., 455 Pa. 531, 317 A.2d 584 (1974), where the Supreme Court held that presumption of receipt of mail is rebuttable by showing that the item was not received by the addressee.
8. The [t]rial court erred in not granting [plaintiff’s request to file post trial motions nunc pro tunc since the [pjlaintiff’s attorney did not actually receive a rule 236 notice because it was not mailed to him by the Office of Judicial Support and [plaintiff’s not timely filing of post trial motions was not due to inadvertence of his counsel. City of Phila v. Tasker, [supra].
9. The [t]rial [c]ourt erred in not considering that the [p]laintiff did mail post-trial motions to the Office of Judicial Support within 10 days after receipt of the courtesy copy of the verdict/judgment sent to him from the [cjourt’s chambers.
10. The [tjrial [cjourt erred in not considering that the [pjlaintiff’s attorney faxed the [cjourt a copy of the post-trial motions within ten days after receipt of the courtesy copy of the verdict/judgment mailed to him from the [cjourt’s chambers.
11. The [tjrial [cjourt erred in rendering a verdict/ judgment that did not conform with the order of November 16, 2009 limiting the trial of this to “who will bear the ultimate cost and expense to gain access to the steel beam and to repair [plaintiff’s] existing laundry room wall.” The [tjrial [cjourt’s verdict/ judgment did not conform to the order that was agreed to by the parties.
12. The [tjrial [cjourt erred in not accepting [pjlaintiff’s findings of fact and conclusion that the [djefendant did not provide the [pjlaintiff with a due process hearing before the Board of Riverwatch Condominium Owners’ Association as required by 68 Pa. C.S. § 3202 (11) and dismiss [djefendant’s claim for the assessment of attorney fees because the [djefendant did not offer any evidence that it provided the [plaintiff] the required due process hearing concerning the imposition of an assessment. Plaintiff’s proposed finding 38 filed with the [cjourt on June 17, 2010.
13. The [tjrial [cjourt erred in not dismissing [d] efendant’s claim for attorney fees because the [dj efendant did not offer any evidence that the attorney fees had been paid. Plaintiff’s proposed finding 37 filed with the [cjourt on June 17, 2010.
14. The [cjourt erred in not dismissing [djefendant’s claim for attorney fees because as required by 68 Pa.C.S. [§§ 3315(a) and (3)(f); and § 3202 (11)], a condominium owner is not obligated to pay attorney fees until after a fine is imposed and becomes due and fines cannot be imposed to become due until the Condominium Owners’ Association has provided a due process hearing to the condominium owner. Plaintiff’s conclusions of law filed with the [cjourt on June 17, 2010.
15. The [tjrial [cjourt erred in not dismissing [dj efendant’s claim for attorney fees because the change in the [djefendant’s "Rules and Regulations "concerning the imposition of attorney fees was in conflict with the [djefendant’s declaration of condominium article XII section 12.6 and the Uniform Condominium Act and therefore without effect. Plaintiff’s conclusions of law filed with the [cjourt on June 17, 2010.
16. The [tjrial [cjourt failed to require the [djefendant to comply with the requirements of Pennsylvania et al. v. Delaware Valley Citizens ’ Council for Clean Air et al., 478 U.S. 546 (1986) in awarding the [dj efendant attorney fees. Plaintiff’s conclusions of law filed with the [cjourt on June 17, 2010. (Plaintiff’s concise statement of errors and rulings complained of on appeal, pp. 1-5)

It is here noted that the plaintiff’s issues numbered 11 through 16 were stricken with prejudice in the granting of the defendant’s preliminary objection to plaintiff’s motions for post-trial relief on grounds that they had been untimely filed. The procedural grounds for the striking of those claims will become clear from a perusal of the docket entries in connection therewith that are briefly recapitulated below:

June 21, 2010 - Notice sent of the docketing of this court’s entry of a verdict/judgment against the plaintiff and in favor of the defendant on its counterclaim against the plaintiff on the same date.
July 2, 2010 - Docketing of the filing of the plaintiffs’ motions for post-trial relief.
July 12, 2010 - Plaintiff’s filing of an appeal to the Pennsylvania Superior Court from the verdict/judgment prior to the entry of an order disposing of his motions for post-trial relief.
July 28, 2010 - Issuance by the court of the order sustaining the defendant’s preliminary objection to the plaintiff’s motions for post-trial relief and striking with prejudice of all claims alleged therein for being untimely raised.
July 29, 2010 - Entry in the docket that notice of the foregoing order was sent to the plaintiff, as an unrepresented party, by the office of judicial support of this court.
July 30, 2010 - Entry of the appearance of plaintiff’s counsel, Thomas P. Gannon, Esquire, in conjunction with his filing of a praecipe to enter judgment in this case.
August 2, 2010 - Filing of the plaintiff’s motion for reconsideration of the court’s order of July 28, 2010 striking his motions for post-trial relief and seeking permission to file said motions nunc pro tunc.
August 11,2010 -Filing of an order by the Pennsylvania Superior Court discontinuing, on plaintiff’s counsel’s praecipe, plaintiff’s appeal noticed on July 12, 2010 and docketed at number 1924 EDA 2010, as well as deeming the defendant’s motion to quash this appeal as moot.
August 18,2010 - Issuance by the court of a rule upon the defendant to show cause why the plaintiff should not be granted reconsideration of the order striking his motions for post-trial relief and of a stay in the time for filing an appeal from the order of July 28, 2010, pending disposition of said petition.
September 3,2010 -Entry of this court’s order, ahearing having been held, denying the plaintiff’s motion for reconsideration of the order of July 28, 2010 striking plaintiff’s motions for post-trial relief with prejudice and seeking permission to file said motion nunc pro tunc.
September 7,2010 - Filing of plaintiff’s notice of appeal to the Pennsylvania Superior Court “from the verdict/ judgment entered in the matter on the 21st day of June 2010 and denial of [pjlaintiff’s petition to allow filing of [pjost [tjrial motions nunc pro tunc filed September 3, 2010,” and noting that the verdict/judgment and order had been entered on the docket.
October25,2010 -Filing of an order by the Pennsylvania Superior Court transferring plaintiff’s appeal noticed on September 7,2010 and docketed at Number 2579 EDA 2010 to the Pennsylvania Commonwealth Court on grounds that the latter court has exclusive jurisdiction over appeals involving actions and proceedings relating to not-for-profit corporations such as the defendant.

This Appeal Must be Quashed Pursuant to Pennsylvania Rule of Appellate Procedure 1701 for Failure to Perfect Appellate Rights

The Pennsylvania Rules of Appellate Procedure 108 (a)(1) and 903(a) require the filing of an appeal from a trial court’s final order within thirty days of the date of notice having been sent of the docketing thereof which, in this case, took place on July 29, 2010, thus creating an appeal filing deadline of August 30, 2010. Dismissal of a party’s post-trial motions for being untimely filed is a final, appealable order. Carr v. Downing, 565 A.2d 181 (Pa. Super. 1989) (where no objection from opposing party to untimeliness of the filing of a post-trial motion has been raised, court may deem it timely), citing to Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989). Nevertheless, despite plaintiff’s counsel, having entered his appearance on July 30, 2010, well prior to the appeal perfection date for the issues raised in his post-trial motions, he chose instead to file, on September 7,2010, a notice of the appeal from the court’s order of S eptember 3,2010 denying reconsideration of the final order striking his appellate claims. Therefore, because the plaintiff has never filed an appeal from the final order striking his appellate claims, this appeal must be quashed. Moreover, even had the plaintiff possessed a right to appeal from the mere entry of a verdict against him in the absence of having raised issues for the court’s review via a post-trial motion, the time in which to do so elapsed thirty days after its entry on June 21, 2010, or by July 21, 2010. See Pa. R. A.P. 108(a)(1) and 903(a).

Pennsylvania Rule of Appellate Procedure 1701(a) (Effect of Appeal Generally) states that “after an appeal is taken...the trial court...may no longer proceed further in the matter.” Id. Section (b) of Rule 1701 provides that, “[ajfter an appeal is taken...the trial court may: (3)[g]rant reconsideration of the order which is the subject of the appeal”, under certain conditions. Id. The court’s order of August 18, 2010 states as follows:

This court never expressly granted reconsideration of the order striking the plaintiff’s post-trial motions, but issued only a rule returnable and allowed for a stay pending resolution of the plaintiff’s motion for reconsideration one way or the other when it issued the foregoing order. Nevertheless, plaintiff’s attorney is charged with the knowledge that an order that did not expressly and unequivocally grant reconsideration of the order that was the subject of the plaintiff’s appeal could not toll the deadline for its filing. Estate of Haiko v. McGinley, 799 A.2d 155, 158-9 (Pa. Super. 2002).

According to Pennsylvania Rule of Appellate Procedure 1701(3)(ii), in a case that is already on appeal, a court may grant reconsideration of the order which is the subject of the appeal if an order expressly granting reconsideration of such prior order is filed in the trial court within the appellate deadline period. This rule further provides:

“A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal...theretofore or thereafter filed or docketed with respect to the prior order. The petitioning party shall... file a praecipe with the prothonotary of any court in which such an inoperative notice or petition is filed or docketed and the prothonotary shall note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the trial court....” Id.

The note following rule 1701 states, in relevant part, that:

“...Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process. The rule (1) permits the trial court...to grant reconsideration if action is taken during the applicable appeal period, [here terminating on August 30, 2010]..., and (2) eliminates the possibility that the power to grant reconsideration could be foreclosed by a ‘snap’ appeal. The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc. If the application lacks merit, the trial court...may deny the application by the entry of an order to that effect or by inaction. The prior appeal paper will remain in effect, and appeal will be taken without the necessity to watch the calendar for the running of the appeal period. If the trial court...fails to enter an order ‘expressly granting reconsideration’ (an order that ‘all proceedings shall stay’ will not suffice) within the time prescribed by these rules for seeking review, subdivision (a) becomes applicable and the power of the trial court...to act on the application for reconsideration is lost.” Id.

Because the court issued an order which did not expressly grant reconsideration of the order of July 28,2010 striking the plaintiff’s post-trial motions, the granting of a stay in the filing deadline for perfection of the plaintiff’s appeal from that order could not suffice. Shapiro v. Center Twp. Butler County, supra, 632 A.2d at 994.

A trial court must expressly grant reconsideration, not just set a hearing date within the time allowed for filing an appeal in order to toll the time for taking an appeal. Schoff v. Richter, 562 A.2d 912 (Pa. Super. 1989). It is well-settled that a trial court loses power to act on a motion for reconsideration where it does not expressly grant reconsideration within the time allowed for the taking of an appeal. Jackson v. Hendrick, 710 A.2d 102 (Pa. Cmwlth. 1998); Valentine v. Wroten, 580 A.2d 757 (Pa. Super. 1990); app. den., 527 Pa. 650, 593 A.2d 422 (1991) (Table). Atrial court’s order granting reconsideration must state expressly and unequivocally that reconsideration is granted; issuance of a rule to show cause or entry of a hearing date for such a motion will not suffice to satisfy the applicable rules of appellate procedure. Witherspoon v. Wal-Mart Stores, Inc., supra, 814 A.2d at 1222; Estate of Haiko v. McGinley, supra, 799 A.2d at 155. An order by the trial court staying all proceedings or merely setting a date for oral argument on a motion for reconsideration is not sufficient to toll the running of the appeal period. Shapiro v. Center Twp. Butler County, supra, 632 A.2d at 994.

For all of the foregoing reasons, plaintiff’s failure to appreciate that the court had issued an order sans the obligatory language expressly and unequivocally granting reconsideration of the order of July 28, 2010 striking his motions for post-trial relief, as well as foregoing the filing of a timely appeal from that order by August 30, 2010, has cost him his appellate rights and this appeal must be quashed.

The Plaintiff’s Motions for Post-Trial Relief Were Untimely Filed

The plaintiff has assembled a litany of contentions to excuse the untimely filing of his motions for post-trial relief, the first of which is that the Office of Judicial Support of this court was required to provide written notice on the date of the entry of the verdict/judgment to plaintiff’s attorney pursuant to Pennsylvania Rules of Civil Procedure 236 and 108. (concise statement, paragraph 1 Plaintiff contends that the failure of the Office of Judicial Support to notify the plaintiff’s attorney of the entry of the verdict/judgment was a breakdown of the court’s operation necessitating the grant of an appeal nunc pro tunc, with citation to the case authorities of West Penn Power Co. v. Goddard, 460 Pa. 551, 556, 333 A.2d 909, 912 (1975), and Weiman By Trahey v. Philadelphia, 129 Pa. Commonwealth Ct., 25, 30, 564 A.2d 557 (1989). (concise statement, paragraph 2)

However, Pennsylvania Rule of Civil Procedure 236(a) (2) merely requires the prothonotary to immediately give notice of the entry of...’’any other order or judgment”, except for judgment by confession, “to eachparty’s attorney of record or, if unrepresented, to each party.” Id.; See also explanatory comment - 1994 to rule 236 (“...the rule has been amended so that an unrepresented party irrespective of an appearance of record receives a copy of all orders, decrees and judgments entered”). Pennsylvania Rule of Civil Procedure 236(b) states that: “[t]he prothonotary shall note in the docket the giving of the notice....” Id. At the time of notice of the entry of this court’s order dated July 28, 2010 striking the plaintiff’s motions for post-trial relief, no counsel had filed an entry of appearance on plaintiff’s behalf. Therefore, the Office of Judicial Support of the Court of Common Pleas of Delaware County, Pennsylvania, would necessarily have sent notice thereof to the plaintiff himself. Despite the lack of a formal entry of appearance, the record reflects that plaintiff’s present counsel represented him during presentation of his claims to a compulsory arbitration panel of this court. Therefore, a clear inference arises that the plaintiff was aware of counsel’s existence, as well as of his own interest in the outcome of this matter, and would have forwarded said notice to his attorney. If he did not do so, that is not the fault of the Office of Judicial Support.

Contrary to the plaintiff’s disingenuous assertion that “the entry in the docket is not conclusive as to whether the prothonotary actually sent notice pursuant to the rules of civil procedure under the case authority of Weiman By Trahey v. Philadelphia, supra,” the facts in the Weiman case can be readily distinguished from those sub judice. (Concise Statement, paragraph 3). In Weiman, the court determined that the docket entry “NOTICE UNDER RULE 236” was not conclusive as to whether the prothonotary actually sent notice. Id. As is clear from plaintiff’s contention on appeal that the court was required to permit the filing of an appeal nunc pro tunc where the prothonotary failed to notify plaintiff’s attorney of the entry of an order according to the precedent set down in Nixon v. Nixon, supra, 198 A.2d at 154, there has been no proof offered here below supporting the claim that a breakdown in court operations took place because notice of this verdict/judgment was not sent, but only that plaintiff’s counsel, himself, had not received it. West Penn Power Co. v. Goddard, supra, 333 A.2d at 909; Weiman By Trahey v. Philadelphia, supra, 564 A.2d at 557. (concise statement, paragraphs 2-4) Further, throughout this stage of the instant litigation, there has been no denial from plaintiff’s counsel that his client had received notice of that entry in the docket, nor did the plaintiff submit any proffer at the evidentiary hearing on his motion for reconsideration refuting that his client had been sent or had received notice of the entry of the verdict/judgment in this action from the Office of Judicial Support.

The case of Nixon v. Nixon, supra, 198 A.2d at 154, cited by the plaintiff is instructive on this point. In Nixon, there had been no denial from the opposing party that notice had been sent, with the court observing that “it must be understood that, if it appears of record that the prothonotary’s office sent notice, this will satisfy all requirements of the custom and [this] cannot be disputed.” Nixon v. Nixon, supra, 198 A.2d at 158. Similarly, there is no proof here that notice was not sent to the plaintiff, Daniel King, nor is there any contention that the prothonotary’s office did not send notice, only that the notice was not sent to plaintiff’s counsel. Since rule 236 requires notice to be sent to unrepresented parties, and because the plaintiff was unrepresented by counsel at the time of sending notice of the entry of the verdict/judgment in this cause of action, the notice requirement must be deemed satisfied in the absence of averment or proof that it was not sent to the plaintiff. Id.; Weiman By Trahey v. Philadelphia, supra, 564 A.2d at 557.

In addition, the discovery of the entry of an order on a docket three and one-half months after the fact and following the expiration of an appeal period, as in West Penn Power Co. v. Goddard, supra, cannot compare to the instant attorney’s admitting to receipt from this court of a copy of the verdict/judgment entered in the above-captioned matter on June 21, 2010 the very next day, on June 22, 2010. Counsel is correct in asserting that the trial court’s mailing to plaintiff’s attorney of a courtesy copy of the verdict/judgment bearing no notation of when it was entered in the docket did not provide proper notice to the attorney of its entry pursuant to the case authority of Dreher Twp. Bd. v. Solitron Develop Co., 481 A.2d 1207 (Pa. Super. 1984). (concise statement, paragraph 5) However, it is also correct beyond peradventure that plaintiff’s counsel was thereby notified of the issuance of the court’s verdict/judgment and could have reasonably and quickly inferred that it would be imminently entered into the docket, with the timing thereof triggering the ten day filing period for post-trial motions that he ultimately missed by one day. Because he was unrepresented by counsel at the time of the sending of notice of this verdict/ judgment and did not plead or prove that he, himself, had not received it, the plaintiff did not meet his burden of proving a breakdown in court operations vis a vis the sending of notice of the docketing of the within verdict/ judgment. West Penn Power Co. v. Goddard, supra, 333 A.2d at 909; Weiman By Trahey v. Philadelphia, supra, 564 A.2d at 557.

According to the plaintiff, lack of receipt of the required Rule 236 notice constitutes a reasonable excuse for plaintiff not filing his post-trial motions within 10 days of the entry of the verdict/judgment and that his failure to do so was not inadvertent according to the case authority of City of Phila. v. Tasker, 547 A.2d 1261, 1267-68 (Pa. Cmwlth. 1988). (Concise Statement, Paragraph 6-8). However, Tasker also held that evidence that notice was sent gives rise to the presumption that it was also received by the addressee. Id., citing to Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406 (1959). Plaintiff then contended that the presumption of receipt of mail is rebuttable by showing that the item was not received by the addressee according to the case authority of Berkowitz v. Mayflower Securities, Inc., 455 Pa. 531,317 A.2d 584 (1974). (concise statement, paragraphs 7 - 8) Nevertheless, Berkowitz held that denial of receipt of an item (in that case, confirmation of a stock purchase), by itself, is not enough to refute the presumption of receipt, nor are plaintiff’s counsel’s denials alone sufficient to rebut the presumption that notice of the entry of the verdict/judgment in the above-captioned matter was, in fact, sent and received by his client. Id.

Lastly, plaintiff’s claims that he mailed his post-trial motions to the Office of Judicial Support within 10 days after receipt of the courtesy copy of the verdict/judgment sent to him from the court’s chambers, and that his attorney faxed the court a copy of the post-trial motions within ten days after receipt of the courtesy copy of the verdict/ judgment mailed to him from the court’s chambers, are of no moment whatsoever since they do not evince an effort to conform with the rules of procedure governing the outcome of this appeal, (concise statement, paragraphs 9 and 10) It is clear from the evidence that plaintiff’s attorney had the time and wherewithal to prepare and timely file his post-trial motions within the applicable ten day period and to perfect his appellate rights emanating from the order of July 28, 2010, but that he simply did not do so.

Conclusion

Pennsylvania Rule of Civil Procedure 227.1(c)(1) (“Post-Trial Relief’) requires that “post-trial motions shall be filed within ten days after...(2)...the filing of the decision [verdict/judgment] in the case of a trial without a jury.” Id. (emphasis added). Pennsylvania Rule of Civil Procedure 1038(c)(“Trial without Jury”) provides that the prothonotary must send notice of a decision of a trial court sitting without a jury of the date of the filing of the verdict. Id. Pennsylvania Rule of Appellate Procedure 108(a)(1) (“Date of Entry of Orders”) indicates that, “in computing any period of time under these rules involving the date of entry of an order by a court..., the day of entry shall be the day the clerk of the court...mails or delivers copies of the order to the parties.” Id. Pennsylvania Rule of Appellate Procedure 108 (b) (“Civil Orders”) states: “[t]he date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P.236(b).” Id.

There is no dispute that the docket evinces that notice of this court’s decision [verdict/judgment] in the above-captioned matter was sent on June 21, 2010. The docket in the above-captioned matter adduces as well that notice of the entry of this court’s order striking the plaintiff’s motions for post-trial relief with prejudice was sent on July 29, 2010, and that notice of an appeal therefrom has never been filed by the plaintiff. Plaintiff’s counsel admits to receiving the court’s faxed copy of that decision [verdict/ judgmentjon June 22, 2010. The docket also clearly reflects that the plaintiff filed his motions for post-trial relief on July 2, 2010, or one day past the ten day filing deadline therefor, pursuant to Pennsylvania Rules of Civil Procedure 227.1 and 103 8. Although this court initially had the discretion to deem the plaintiff’s motions for post-trial relief to have been timely filed, the defendant’s objection to the admitted late filing of the said motions eliminated that discretion. Carr v. Downing, supra, 565 A.2d at 182 (post-trial motions appropriately dismissed as untimely filed where opposing party had raised an objection).

An attorney must, at least, be familiar with the well settled principles of law and rules of practice which are of frequent application in the ordinary business of the profession. Enterline v. Miller, 1905 WL 3614 (Pa. Super. 1905); Masthope Rapids Property Owners Council v. Ury, 687 A.2d 70 (Pa. Cmwlth. 1996); Tarlo v. University of Pittsburgh, 443 A.2d 879 (Pa. Super. 1982). However, plaintiff’s attorney failed to file his client’s motions for post-trial relief within the required ten day period after receiving credible information approximately 9 days previously that a verdict/judgment had been entered in this case. Yet, plaintiff relies on a notice requirement he has not proved was not fulfilled to excuse the lateness. Plaintiff’s counsel also failed to perfect his client’s appellate rights arising from the filing of the order of July 28,2010 striking his client’s motions for post-trial relief with prejudice despite ample time in which to do so before the August 3 0, 2010 deadline. This is not an instance where notification came so late that it was impossible for plaintiff’s counsel to conform to the rules of court and law with which he is charged with awareness as an attorney practicing law in this commonwealth.

The negligence of a party’s own attorney has not been considered sufficient excuse for the failure to file a timely appeal. Hentz v. Civil Service Commission of the City of Philadelphia, 481 A.2d 998,999 (Pa. Cmwlth. 1984), citing to Nixon v. Nixon, supra, 198 Atl. at 154. An extension of the required period during which an appeal may be filed is justified only where there is fraud or some breakdown in the court’s operation from the default of its officers. West Penn Power Co. v. Goddard, supra, 333 A.2d at 909. Non-negligent conduct was defined in the Hentz case as that which is beyond the control of the appellant or his attorney, such as mechanical failure of a law clerk’s vehicle or the sudden hospitalization of counsel. Hentz v. Civil Service Commission of the City of Philadelphia, supra, 481 A.2d at 999-1000. There is no such conduct in issue here, only the negligent, dilatory conduct of plaintiff’s attorney before the court. According to the Hentz court, negligent conduct of one’s attorney is fraudulent conduct that is actionable through other legal recourse pursued by the client. Id., 482 A.2d at 1000. Further, “as in the case in delays caused by negligent conduct of attorneys, a policy of extending appeal times on the basis of fraud or misconduct of a party’s own attorney would tend to encourage such abuses, and could not, therefore, be logically supported.” Id.

Where it concerns the late filing of post-trial motions, the case of Stokes v. Thiemann, 442 A.2d 322 (Pa. Super. 1982), held that the court did not abuse its discretion by refusing to extend that deadline where the motions were not filed for a month after the verdict. Id., 442 A.2d at 322. The excuse claimed there was an effort to settle the matter. Id. The court found that claim not to reach the level of a legally cognizable excuse for delay in complying with a mandatory, unambiguous ten-day rule. Id., at 323. Similarly, in the case sub judice, it must be found that plaintiff’s counsel’s waiting to file his client’s motions for post-trial relief one day after the requisite deadline, of which he should have been aware during the preceding nine days, does not reach the level of a legally cognizable reason to blame the court for his own failure to conform to a mandatory and unambiguous rule of procedure with which he was required to comply in the best interests of his client.

For all of the foregoing reasons, the issues in this appeal must be deemed waived for having been untimely filed, as well as quashed for the requisite appeal from the order of July 28, 2010 striking plaintiff’s motions for post-trial relief with prejudice never having been filed.

ORDER

And now, August 18, 2010, upon consideration of plaintiff Daniel King’s petition for rule to show cause why the court should not reconsider the court’s order of July 28, 2010 and allow plaintiff to file post trial motions nunc pro tunc, and defendant Riverwatch Condominium Association’s reply thereto, as well as the memoranda of law submitted in support thereof, it is hereby ordered and decreed as follows:

1. a rule is issued upon the defendant to show cause why the plaintiff is not entitled to the relief requested;
2. the petition shall be decided pursuant to Rule 206.7 of the Pennsylvania Rules of Civil Procedure; and
3. all other proceedings and the time for filing an appeal from the order of July 28, 2010, are stayed pending disposition of said petition.

      . Because August 29, 2010 fell on a Sunday, the deadline was deemed to be Monday, August 30, 2010, pursuant to Pennsylvania Rule of Civil Procedure 106(b).

      . Although the docketing timeline set forth, supra, reflects the court’s issuance, on August 18, 2010, of a rule upon the defendant to show cause why the plaintiff should not be granted reconsideration of the order striking his motions for post-trial relief and of a stay in the time for filing an appeal from the Order of July 28, 2010 pending disposition of said petition, this was an ineffective means of tolling the deadline for appeal. Pennyslvania Rule of Appellate Procedure 1701(b)(3); Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d 1222 (Pa. Super. 2002); Shapiro v. Center Twp. Butler County, 159 Pa. Cmwlth. 82, 632 A.2d 994(1993). Therefore, in filing an appeal from the order of September 3, 2010, denying reconsideration and not from the final order of July 28, 2010 with its appeal file deadline of August 30, 2010, plaintiff forfeited his appellate rights in this case.

      . Although the docket reflects plaintiff’s withdrawal of a notice of appeal on August 11, 2010, before the court issued the rule to show cause why plaintiff should not be granted reconsideration of the order striking his motions for post-trial relief, it is to be recalled that this was an ineffective appeal from the verdict/judgment entered by the court on June 21, 2010, and not from the order of July 28,2010 striking his post-trial motions with prejudice.

      . “Defer no time, delays have dangerous ends.” The First Part of King Henry the Sixth, Act 3, Sc. 2, L. 33. The Complete Plays and Poems of William Shakespeare, William A. Neilson and Charles J. Hill (Boston: Houghton, Mifflin, 1942), p. 765.


author: BALDI, J.,

text:
    Dankambary v. FSF Trading Corp.

      C.P. of Bucks County,
    no. 2007-01639-35.

      John E. Salmon and Peter W Baker, for plaintiff.

      Robert P Corbin, for defendant.
    November 23, 2010
   BALDI, J.,

I. Introduction

FSF Trading Corporation and Banner Smoked Fish, Inc. appeal to the Superior Court of Pennsylvania from this court’s August 19, 2010 order denying their motion for summary judgment and granting Penske Truck Leasing Co., L.P.’s motion for summary judgment. We file this opinion pursuant to Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(a).

II. Factual and Procedural Background

On March 1, 2007, Daouda Dankambary and his wife, Shauntey Gibbs Dankambary (hereafter “original plaintiffs”), filed a complaint against FSF Trading Corporation and Banner Smoked Fish, Inc. (hereafter “original defendants” or individually as “FSF Trading” and “Banner”). Original plaintiffs’ complaint, alleging negligence and loss of consortium, was filed in response to injuries Daouda Dankambary sustained while washing trucks at 3185 Tucker Road in Bensalem, Pennsylvania, property owned by FSF Trading and rented by Banner. Specifically, Daouda Dankambary fell into an uncovered drainage ditch — approximately eighteen (18) inches in diameter — which was normally covered by a metal lid. Oral arg. 8/16/10 at 12. He suffered significant injuries as a result of this fall.

On September 26, 2008, original defendants filed a j oinder complaint against Penske Truck Leasing Company, L.P. (hereafter “Penske”), alleging that Penske should be liable for contribution or indemnification. Org. defs.’ Joinder Compl. 3. This allegation stemmed from the fact that Daouda Dankambary was at the Tucker Road facility to wash Penske trucks that Banner had leased from Penske. More specifically, Banner leased trucks from Penske, and in their Vehicle Lease Agreement, Penske agreed to periodically wash the exterior of the leased vehicles. To meet this contractual obligation, Penske hired Fleetwash, a truck washing contractor. Daouda Dankambary was an employee of Fleetwash, and on the evening of May 1, 2006, Daouda Dankambary, in his capacity as Fleetwash employee, went out to the Tucker Road facility to wash the leased vehicles. He then fell and injured himself on the uncovered drainage ditch. All parties agree that Penske and their truck washing contractor had no part in creating or maintaining the hazardous condition that caused Daouda Dankambary’s injuries; the drainage ditch remained a hazard due to original defendants’ conduct. Oral arg. 8/16/10 at 3;12. In their joinder complaint, original defendants alleged that Penske would be liable to them on the basis that Penske breached a vehicle lease agreement by and between Penske and Banner, and/or Penske was negligent for sending Daouda Dankambary to the property to wash the vehicles. Org. defs.’ joinder compl. 3. To elaborate, original defendants argued that, under the terms of the lease agreement between Penske and Banner, Penske was to wash the leased trucks at Penske’s rental facility, and not at 3185 Tucker Road; thus, Penske breached the lease agreement by washing the trucks at 3185 Tucker Road and breached their duty of care by not informing Fleetwash that their employees were not to wash the trucks at the Tucker Road facility.

Original plaintiffs and original defendant banner eventually settled their dispute for seventy-five thousand dollars ($75,000). Original defendants and Penske continue to litigate original defendants’ contribution/ indemnification claim. It should be noted that the vehicle lease agreement does not contain a clause addressing contribution or indemnification.

In summary, this action was commenced by Daouda Dankambary in response to his falling into a drainage ditch left uncovered as a result of original defendants’ conduct; Original defendants filed suit against Penske in an attempt to shift their losses to Penske. This appeal stems from cross-motions for summary judgment filed by Penske and original defendants: Penske filed a summary judgment motion on April 4, 2010, to which original defendants responded, and original defendants filed a summary judgment motion on May 5, 2010 to which Penske responded. On August 16, 2010, this court heard oral argument on the cross-motions for summary judgment. Following oral argument, the undersigned carefully reviewed the cross-motions for summary judgment and the briefs submitted by the parties in support and opposition to said motions. The court also took into consideration the statements made by counsel on behalf on their clients at oral argument and considered these statements to be judicial admissions. The undersigned concluded that Penske was entitled to summary judgment, and therefore, by order dated August 19, 2010 and docketed August 24, 2010, the undersigned granted Penske’s summary judgment motion and denied original defendants’ summary judgment motion.

On September 23, 2010, original defendants timely filed this appeal. Thereafter, on October 15,2010, plaintiff provided a statement of errors complained of on appeal in accordance with this court’s order for same.

III. Statement of Matters Complained of on Appeal

Original defendants have raised four issues on appeal:

1. In denying the summary judgment motion of appellants, and granting the summary judgment motion of appellee, Penske Truck Leasing Company, L.P. (“appellee”), the trial judge ignored the uncontroverted evidence of record which established that the intention of the parties was for Penske to wash Banner’s trucks on Penske’s premises, and not on Banner’s premises.
2. In denying appellants’ summary judgment motion, and in granting appellee’s summary judgment motion, the trial judge ignored the fact that the contract between the parties contains an integration clause in which both parties explicitly agreed that the entire agreement between the parties was contained within that document; in reaching his decision, the trial judge looked outside the “four comers” of the document improperly to ascertain the intention of the contracting parties.
3. In denying appellants’ summary judgment motion, and in granting appellee’s summary judgment motion, the trial judge, in ascertaining the intention of the contracting parties, improperly violated the parol evidence rule and considered matters extrinsic to the contract, where the intentions of the parties was clearly manifest in the contract document itself.
4. In denying appellants’ motion for summary judgment, and in granting appellee’s motion for summary judgment the trial judge improperly concluded that the breach of contract by Penske was not the proximate cause of any losses suffered by appellants.

IV. Discussion

a. Legal Standard: Summary Judgment

“A motion for summary judgment may be properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Wash. Fed. Say. and Loan Ass’n v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986). “The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (Pa. 1991).

Under Pa.R.Civ.P. 1035.3(a):

(a) Except as provided in subdivision (e), the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying

(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.

b. Contribution and/or Indemnification Claim

It should be noted at the outset that neither party briefed, nor discussed at oral argument, the standards for recovery under a contribution or indemnification claim. The focus of the parties’ argument was whether Penske breached the vehicle lease agreement it had signed with Banner. While the parties seemed to think that a breach of the vehicle lease agreement would be dispositive, the undersigned concluded that the standards for recovery on a contribution or indemnification claim were relevant to the ultimate resolution of this controversy.

Contribution and indemnification are separate and distinct causes of action. Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 370 (Pa. 1951); Kemper Nat’l P & C Companies v. Smith, 615 A.2d 372, 374-75 (Pa. Super. 1992). While both are equitable remedies, contribution operates as a “fault-sharing mechanism between two parties responsible for harm,” Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 552 F. Supp. 2d 515, 520 (E.D. Pa. 2008 (citing Kemper, 615 A.2d at 375), whereas indemnification is as a “fault shifting mechanism operable only when a defendant who has been liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss.” Sirianni v. Nugent Bros., Inc., 509 Pa. 564, 571, 506 A.2d 868, 871 (Pa. 1986).

i. Contribution

In Pennsylvania, there is no common law right to contribution; a right to contribution arises only among joint tortfeasors under the Uniform Contribution Among Joint Tortfeasors Act (UCAJTA), 42 Pa.C.S. §§ 8322-27. Kemper, 615 A.2d at 379-80 (Pa. Super. 1992); 42 Pa.C.S. § 8324. Under 42 Pa.C.S. § 8324 (“Right to Contribution”):

(a) General rule. — The right of contribution exists among joint tort-feasors.
(b) Payment required. — A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.

Joint tortfeasors are defined as “two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 42 Pa.C.S. § 8322. More specifically, “joint tortfeasors exist where ‘two or more persons owe to any other the same duty and by their common neglect, such other is injured.’” LaZar v. RUR Indus., Inc., 487 A.2d 29, 32 (Pa. Super. 1985) (quoting Lasprogata v. Qualls, 397 A.2d 803 (Pa. Super. 1979)); put differently, joint tortfeasors exist when “the tortious conduct of two or more persons causes a single harm which cannot be apportioned.” Capone v. Donovan, 480 A.2d 1249, 1251 (Pa. Super. 1984). In summary, under the UCAJTA, contribution is recoverable where (1) the parties are joint tortfeasors and (2) one tortfeasor has discharged the common liability by paying more than his pro rata share.

In the case sub judice, Penske and original defendants were not joint tortfeasors, and therefore Penske cannot be liable for contribution. As this is a summary judgment motion, it was incumbent upon original defendants to point to evidence in the record that would show that Penske was a joint tortfeasor. Original defendants have not done this. All parties agreed that Penske did not create or maintain the hazardous condition which caused Daouda Dankambary’s injuries; the cover was off the drainage ditch as a result of one or both of original defendants’ actions. As Penske is not the landowner and had no control over the drainage ditch, Penske had no duty to maintain the property in a reasonably safe condition or warn against the hazard. Palange v. City of Phila., 640 A.2d 1305, 1308 (Pa. Super. 1994). There is also no indication in the record that Penske was aware of the hazardous condition. Accordingly, this court cannot say that Penske breached any duty to Daouda Dankambary.

Instead of pointing to evidence which would suggest that Penske was a joint tortfeasor, original defendants pointed to language in a contract which supports their assertion that Penske breached a contractual obligation. Even if the court were to adopt and accept the interpretation of the contract proposed by original defendants, the suggested breach of contract would not make Penske a joint tortfeasor. See Agere, 552 F.Supp.2d at 520. A breach of a contractual obligation between two defendants is not a basis for a contribution claim. Id. As previously stated, all parties agreed that the dangerous condition (the absence of a metal lid) was the responsibility of the original defendants and not Penske. Penske had no control over the instrumentality that caused plaintiff harm.

ii. Indemnification

To the extent that original defendants assert that Penske is liable to them via contract, original defendants appear to be making an indemnity claim. In other words, original defendants’ claim that Penske breached the vehicle lease agreement by sending Fleetwash out to the Tucker Road facility, and by this breach, original defendants suggest that Penske is solely liable for Daouda Dankambary’s injuries.

As discussed, indemnification is a “fault shifting mechanism operable only when a defendant who has been liable to a plaintiff solely by operation of law, seeks to recover his loss from a defendant who was actually responsible for the accident which occasioned the loss.” Sirianni, 506 A.2d at 871 (Pa. 1986); City of Wilkes-Barre v. Kaminski Bros., Inc., 804 A.2d 89, 92 (Pa. Cmwlth. 2002) (noting that indemnification “is a common law equitable remedy that shifts the entire responsibility for damages from a party who, without any fault, has been required to pay because of a legal relationship to the party at fault”); see also, Builders, 77 A.2d at 370-71. It is not a fault-sharing mechanism; “indeed, there can be no indemnity between parties who each bear responsibility for the wrong.” Kaminski Bros., 804 A.2d at 92. In the present case, all parties agree that Penske played no part in creating or maintaining the hazardous condition that existed on original defendants’ property. Original defendants’ conduct created the hazard that eventually caused Daouda Dankambary’s injuries. In light of this, original defendants cannot maintain an indemnity action against Penske.

Thus, for all the above reasons, the undersigned issued the order of August 19,2010, denying original defendants’ motion for summary judgment and granting Penske’s summary judgment motion, and now submits that this appeal is without merit.

      . At oral argument, the injury was described in the following manner:
      The court: What was the nature of the defect or whatever supposedly occurred?
      Mr. Baker (counsel to original defendants): It was - what appeared to be - we called it a cistern. It was a - on the property there was an open cistern of about 18 inches in diameter that was attached to a sump pump. And normally it had a metal lid on it. It was adjacent to the area where the trucks were washed.
      But apparently, on that particular night, there was no metal lid on it.... Mr. Dankambary...stepped into this hole and fell into it, hitting his side on the concrete rim of the cistern, and breaking six ribs.

      . At oral argument, counsel for original defendants stated that his whole case rose and fell on the terms of the vehicle lease agreement. According to counsel, Penske is liable to original defendants for contribution if Penske breached the vehicle lease agreement by sending Daouda Dankambary out to the Tucker Road facility. Specifically, at oral argument, counsel for original defendants says:
      Mr. Baker: Our whole argument, Your Honor, is [Daouda Dankambary] shouldn’t have been [at the Tucker Road facility] in the first place. And the ones who should have controlled that were the ones who had privity with Fleetwash, which was Penske.
      The court: Okay, that’s the whole case in a nutshell.
      Well, is there more? If there is, let me know.
      It seems to me that really - what you just described was the whole issue. Does Penske become liable for these injuries where a person stepped into a manhole ~ an empty manhole because of a contract where they should have sent the person to a different location.
      Mr. Baker: Yes, Your Honor
      The court: That’s the whole case.
      Mr. Baker: [Daouda Dankambary] should have never set foot on the property after the date of [sic] the contract was signed.