author: WECHT, J.,

text:
    Steinmetz v. Allegheny General Hospital

      Rita H. Steinmetz, pro se.

      Richard J. Kabbert, for defendants James Schuster, Rebecca Seip, Patricia A. Riley, Kristine Potts and Allegheny General Hospital.

      Rosemary A. Marchesani, for defendant Central Ambulance Service.

      Susan A. Kostkas, for defendants Intercare Health Systems Ltd. and Scott Gleditsch.

      Katherine Kenyon, for defendant Lakewood Psychiatric Hospital.
    April 20, 2007
   WECHT, J.,

Plaintiff Rita H. Steinmetz has appealed from five orders of this court: one each on April 26, 2006 and November 13, 2006 (per the Honorable Ronald Folino); one on January 8, 2007 (per the Honorable Eugene Strassburger); and two on February 16, 2007 (per the undersigned) (denial of judgment n.o.v. and entry of judgment on verdict).

For the reasons set forth hereinbelow, plaintiff’s appeal should be dismissed.

BACKGROUND

Steinmetz originally commenced this action in February 1999 in the United States District Court for the Western District of Pennsylvania. The district court granted motions to dismiss several of Steinmetz’s claims. Steinmetz’s appeal of the dismissal of claims was dismissed for lack of jurisdiction. The district court granted summary judgment to the defendants on Steinmetz’s remaining federal claims, and declined to exercise pendent jurisdiction over the remaining state claims. An appeal to the United States Court of Appeals for the Third Circuit followed. In December 2004, the Third Circuit affirmed the district court.

On March 11, 2005, pursuant to 42 Pa.C.S. §5103, Steinmetz transferred her pendent state claims to the Court of Common Pleas of Allegheny County. Following preliminary objections and motions for summary judgment, Judge Folino entered an order on April 26, 2006 dismissing several of Steinmetz’s counts, but permitting her to proceed with claims for back and shoulder pain. Steinmetz filed a motion for reconsideration, which Judge Folino denied on November 13,2006.

The case was assigned for trial before the undersigned. On January 26, 2007, this court heard and decided several motions in limine. Trial began on January 29, 2007 and continued through February 2, 2007, at which time the case was submitted to the jury. Later that day, the jury returned with a verdict for the defendants. Steinmetz filed a motion for post-trial relief, which this court denied on February 16, 2007.

Steimnetz filed a notice of appeal on March 13,2007. On March 16, 2007, this court ordered a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Steinmetz responded on March 29, 2007 with the filing of a 27-page document containing 107 numbered paragraphs asserting trial court errors.

DISCUSSION

The Superior Court should dismiss Steimnetz’s appeal. She failed to comply with the requirements of Pa.R.A.P. 1925(b), as well as the Superior Court’s controlling case law regarding concise statements.

In Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004), the Superior Court quashed a recent appeal because, as here, the appellants filed statements that were not concise. Each of the two Kanter appellants filed a 15-page statement; one raised 49 issues while the other raised 55. Id. at 401. Moreover, each incorporated all of the other’s issues by reference. Id. The Superior Court stated that the failure to set forth the issues on appeal in a concise manner hindered the trial court in preparing an opinion, thus frustrating the appellate panel’s ability to provide meaningful review. Id. The Kanter court noted Judge Ruggero J. Aldisert’s oft-cited teaching that:

“With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. . . . [W]hen I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness. Aldisert, ‘The Appellate Bar: Professional Competence and Professional Responsibility — A View from the Jaundiced Eye of One Appellate Judge,’ 11 Cap.U.L.Rev. 445, 458 (1982). Estate of Lakatosh, 656 A.2d 1378, 1380 n.1 (Pa. Super. 1995) (quoting United States v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982).” Id. at 401 n.7.

The Superior Court further noted:

“In this case, the defendants’ voluminous Rule 1925(b) statements did not identify the issues that the defendants actually intended to raise before the Superior Court. The defendants’ Rule 1925(b) statements identify significantly more issues than the defendants could possibly raise on appeal due to the appellate briefing limitations requiring that the statement of the question involved not exceed 15 lines, and in any event, one page. See Pa.R. A.P. 2116(a). In this case, the trial court was presented with 50 or more issues that each defendant identified for appeal. This forced the trial court to guess which issue the defendants would actually raise on appeal. This court has previously explained that ‘ [w]hen a court has to guess what issues an appellant is appealing, that is not enough for meaningful review.’ Commonwealth v. McCree, 857 A.2d 188, 192 (Pa. Super. 2004).” 866 A.2d at 401. (emphasis in original)

The Kanter court found that, by presenting so many issues, the appellants had impaired the trial court’s ability to provide the kind of comprehensive analysis of the issues needed for appellate review. Id. Therefore, the Superior Court concluded that the appellants had effectively failed to preserve the issues on appeal. Id.

In Kanter, the Superior Court also determined that appellants had intentionally engaged in misconduct by raising issues in the 1925(b) statement that the appellants did not intend to raise before the Superior Court. Id. at 402. In fact, the trial court in Kanter had stated that appellants “breached their duty of fair dealing with this court... when they filed 1925(b) statements that raised substantially more issues than they will be permitted to address on appeal....” Id.

Other recent cases further underscore the rigor with which our Superior Court applies the rule that concise statements be, in point of fact, concise. Increasingly, the Superior Court has expressed concern that trial courts are hindered in preparing adequate legal analysis when appellants identify too many issues. In Jones v. Jones, 878 A.2d 86 (Pa. Super. 2005), for example, where the appellant filed a seven-page statement with 29 issues, the trial court was unable to produce an opinion that was more than cursory, and the Superior Court was impeded in its review. Id. at 89-90. The Superior Court concluded that appellant’s issues on appeal had been waived. Id. at 90. See also, Eiser v. Brown & Williamson Tobacco Corp., 2006 WL 933394, *4 (Pa. Super. 2006) (where appellant filed 15-page statement with 30 issues, Superior Court found all issues waived except those trial court was able thoroughly to address in its opinion); Signora v. Liberty Travel Inc., 886 A.2d 284, 289 n.4 (Pa. Super. 2005) (where appellants filed eight-page statements each, waiver avoided solely due to trial court’s “masterful job in distilling the arguments of each party to their essence ...”; criticizing “cavalier disregard of rudimentary principles of appellate practice” and cautioning parties and counsel “to heed this court’s recent admonitions against overly verbose Pa.R.A.P. 1925(b) statements which do not concisely identify the issues they actually intend to raise on appeal”).

Steinmetz’s 1925(b) statement is similar to, and perhaps more egregious than, the statements in Kanter. Steinmetz provided a 27-page document with 107 numbered paragraphs of claimed errors. Initially, Steinmetz purports to be raising only two issues for review: the denial of a new trial and the denial of a judgment n.o.v. However, in fact, Steinmetz’s statement proceeds to raise numerous, separate issues both within and without the presentation of those two issues and discussion. For present purposes, this court believes a handful of illustrative examples will suffice.

Under the nominal issue of denial of the new trial, Steinmetz raises the issues of denial of a motion in limine and a claim of error arising from this court’s ruling on medical records accessible during deliberations. 1925(b) statement, at 9-10, 12. In addition, Steinmetz raises multiple issues on limitations on cross-examination of defendants’ witnesses. 1925(b) statement, at 9-11. Steinmetz complains that this court both failed to enforce Judge Folino’s April 26 order and enforced it too well by denying introduction of evidence of ankle injuries. 1925(b) statement, at 2, 11.

Steinmetz spends many pages going into great detail as to why, on numerous separate and varied grounds, the jury verdict assertedly was against the weight of the evidence. 1925(b) statement, at 12-27. Steinmetz claims the trial court erred in allowing the defendants to assert the validity of the 302 involuntary commitment, and also erred in not allowing Steinmetz the opportunity to introduce evidence to refute that validity. 1925(b) statement, at 2-3, 9. Steinmetz asserts that she was prejudiced and stigmatized by the defense statements regarding the validity of the 302 commitment. 1925(b) statement, at 8. Steinmetz makes claims that defense witnesses testified “falsely.” 1925(b) statement, at 10-11. Steinmetz also attributes errors to Judge Folino’s April 26 order in splitting her claims, preventing her from presenting relevant evidence, and giving the defendants unwarranted credibility. 1925(b) statement, at 4, 5-8.

The foregoing are but a few examples of the claims of error Steinmetz has buried in her 27-page, 107-numbered paragraph “concise statement” of issues, to be appealed. Given the statement’s length, breadth, and complexity, it would be difficult for this court to adequately address all the issues Steinmetz has sprinkled throughout in such a way as to allow the Superior Court to engage in a meaningful review of this appeal.

CONCLUSION

For the foregoing reasons, Steinmetz’s appeal should be dismissed.

      . It should be noted that Judge Strassburger also ordered a concise statement on March 14, 2007, and that Steinmetz responded to that order on March 26, 2007.

      . Compare McGavitt v. Guttman Realty Co., 909 A.2d 1, 4 (Pa. Super. 2006), in which the court refused to dismiss an appeal based on a six-page concise statement that only contained four issues. The length of the statement was due to counsel’s inclusion of background material. Id. This appeal plainly is distinguishable from McGavitt. The 27-page length of Steinmetz’ statement is due not solely to inclusion of background material, but instead to the multitude of issues Steinmetz asserts.

      . 1925(b) statement, at 2. If Steinmetz’s appeal was premised in fact on the denial of a judgment n.o.v., it might be disposed of by straightforward application of the black letter judgment n.o.v. standard:
      “[T]he proper standard of review for an appellate court when examining the lower court’s refusal to grant a judgment n.o.v. is whether, when reading the record in the light most favorable to the verdict winner and granting that party every favorable inference therefrom, there was sufficient competent evidence to sustain the verdict. Questions of credibility and conflicts in the evidence are for the trial court to resolve and the reviewing court should not reweigh the evidence. Absent an abuse of discretion, the trial court’s determination will not be disturbed.” Atwell v. Beckwith Machinery Co., 872 A.2d 1216, 1222 (Pa. Super. 2005) (quoting Ferrer v. Trustees of the University of Pennsylvania, 573 Pa. 310, 317-18, 825 A.2d 591, 595 (2002)). Accord Vance v. 46 & 2 Inc., 2007 WL 738771 (Pa. Super. 2007). In this case, the testimony of defense experts, Drs. Wettstein and Dunmire, as well as all other evidence of record, amply sufficed to create issues of fact for jury decision on all trial claims. There was “sufficient competent evidence to sustain the verdict” of the jury here.

      . This trial court lacks the authority to quash or dismiss Steinmetz’s appeal. Goldfarb v. Goldfarb, 861 A.2d 340, 343 (Pa. Super. 2004).


source: Caselaw Access Project

author: LASH, J,

license: Public Domain

text:
    Younker v. Berks County Board of Assessment Appeals

      Terry L. Parish, for appellant.

      Edwin L. Stock, for appellee.
    March 14, 2007
   LASH, J,

The appellant, David G. Younker (landowner), has appealed the decision of the Berks County Board of Assessment Appeals directing a rollback from the preferential use assessment to full market value assessment of landowner’s real estate, pursuant to the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (Act 319), commonly known as the Clean and Green Act, 72 P.S. §5490.1, et seq. Pursuant to 72 P.S. §5350(c), the appeal pertains to a rollback from preferential use assessment to full market value for the years 2000 through 2006. Trial was held on March 12, 2007. The parties stipulated to the following facts, which established the trial record:

I. STIPULATED FACTS

(1) The appellant is David G. Younker (landowner), with a mailing address of P.O. Box 426, Bethel, Pennsylvania 19507-0426.

(2) The appellee is the Berks County Board of Assessment Appeals (board), Berks County Services Center, Third Floor, 633 Court Street, Reading, Pennsylvania 19601.

(3) The real estate (premises), which is the subject of this appeal, is located at 800 Airport Road, Bethel Township, Berks County, Pennsylvania.

(4) The premises is assessed by the board as parcel no. 30-4402-00-47-3240.

(5) The premises was preferentially assessed under the Act from 1997 until June 21, 2006.

(6) The Berks County application for Act 319 Use Value Assessment of Land was executed by landowner on May 19, 1997, and was recorded in the office of the Berks County Recorder of Deeds on May 22, 1997, in book 2833, page 0104.

(7) The premises contains 15 acres, as reflected in paragraph 5 of the application.

(8) The premises was separated from a larger property enrolled under the Act. The use of the property remains the same as the prior use, as reflected in paragraph 5 a of the application.

(9) There has been no change of use of the premises since the filing of the application in 1997.

(10) The premises was transferred to landowner by deed dated September 5,1996, and recorded in the office of the Berks County Recorder of Deeds on September 10, 1996, in record book 2765, page 0522.

(11) Landowner and his father have utilized approximately nine acres of the premises for the operation of a commercial sawmill since 1954.

(12) The sawmill operation on the premises includes, inter alia:

(a) receiving and storing logs purchased from other locations (off-site); and

(b) cutting logs into lumber to be sold off-site; and

(c) processing scrap wood into firewood to be sold off-site.

(13) By written response dated July 31, 2005, to a questionnaire received from the board, landowner advised the board that the 15 acres of the premises was composed of the following uses: five acres of forest or woodland; one acre for a home site; and nine acres for the sawmill business.

(14) By letter dated June 21,2006 (notice of breach), the chief county assessor advised landowner that he had breached the Clean and Green agreement and that rollback taxes in the amount of $9,718.44, plus interest and recording fees, were imposed.

(15) The notice of breach described the alleged breach as follows:

“In review of Clean and Green records, it has been discovered that the sawmill (rural enterprise) on this property encompasses more acreage than allowed by the Clean and Green Act. As a result of the rural enterprise covering nine acres of land, your agreement covering this tract has been breached. Under the provisions of Act 319, this change is subject to a penalty, which is based on the difference between the market value assessment and the preferential assessment.”

(16) On July 5, 2006, the landowner filed a timely appeal from the notice of breach.

(17) A hearing was held on the notice of breach by the board on August 21, 2006, pursuant to written notice.

(18) By final notice dated August 25,2006, the board upheld the chief county assessor’s determination that a breach of the agreement for preferential assessment had occurred.

(19) On or about July 3,2006, the board forwarded to landowner an interim assessment increase.

(20) On July 11,2006, landowner filed a timely appeal from the interim assessment increase. That appeal was also denied by the board.

II. DISCUSSION

The sole issue before this court is whether the commercial sawmill operation situate on nine acres of landowner’s property falls within the definition of “agricultural use” qualifying the acreage for preferential assessment under the Act.

The definition of agricultural use appears in section 5490.2 of the Act:

“ ‘Agricultural use. ’ Land which is used for the purpose of producing an agricultural commodity or is devoted to and meets the requirements and qualifications for payments or other compensation pursuant to a soil conservation program under an agreement with an agency of the federal government. The term includes any farmstead land on the tract. The term includes a woodlot and land which is rented to another person and used for the purpose of producing an agricultural commodity.”

Section 5490.2 also defines agricultural commodity as follows:

“‘Agricultural commodity. ’ Any of the following:

“(1) Agricultural, apicultural, aquacultural, horticultural, floricultural, silvicultural, viticultural and dairy products.

“(2) Pasture.

“(3) Livestock and the products thereof.

“(4) Ranch-raised furbearing animals and the products thereof.

“(5) Poultry and the products of poultry.

“(6) Products commonly raised or produced on farms which are:

“(i) intended for human consumption; or “(ii) transported or intended to be transported in commerce.

“(7) Processed or manufactured products of products commonly raised or produced on farms which are:

“(i) intended for human consumption; or “(ii) transported or intended to be transported in commerce.”

Landowner urges that the sawmill operation qualifies as an agricultural commodity under subsection (1) of the definition, because it is silvicultural. The term “silvicultural” is not defined in the Act. Where a term is not defined, it is to be construed according to its common and approved usage. 1 Pa.C.S. § 1903(a). Moreover, in ascertaining the common and approved usage or meaning, the court may resort to dictionary definitions of the term left undefined by the legislature. P.R. v. Pennsylvania Department of Public Welfare, 759 A.2d 434, 437 (Pa. Commw. 2000), appeal allowed in part, 564 Pa. 504, 769 A.2d 1116 (2001).

Silvicultural is defined generally as a “branch of forestry dealing with the development and care of forests.” The board provided another definition: a “phase of forestry that deals with the establishment, development, reproduction, and care of forest trees.”

Landowner points out that other statutes have included sawmills within the definition of farming operations. For example, the Right to Farm Act defined normal agricultural operations to include “crop dryers, feed grinders, sawmills, [and] hammer mills ....”

Upon review, we find that landowner’s sawmill use is not an agricultural use as that term is defined in the Act. For a use to qualify as agricultural, the agricultural commodity produced must be produced directly from the land. The concept is one of husbandry, using land for the cultivation or production of plants and animals. As so framed, the use is consistent with the goal of the General Assembly in enacting the Act to promote maintenance and preservation of Pennsylvania’s farmlands and forests.

In this context, landowner’s “production” does not qualify under any of the subsections of the definition of agricultural commodity. The term “silvicultural,” in subsection (1), contemplates the planting and growth of forest trees. A commercial sawmill does not engage in this form of husbandry; rather, its production is as a processor, converting raw forest produce into useable wood materials.

We recognize that sawmill products may potentially qualify as an agricultural commodity under subsection (7) when the processed product comes from raw material produced on the same land where the sawmill is located. However, when, as in this case, the raw material is imported from another location, the agricultural commodity is not produced from the subject land and, therefore, the use of the land cannot be considered to be an agricultural use.

We enter the following order:

ORDER

And now, March 14,2007, upon consideration of the appeal of David G. Younker from the decision of the Berks County Board of Assessment Appeals entered August 25,2006, and after trial held, the decision of the Berks County Board of Assessment Appeals is hereby affirmed.

      . 72 P.S. §5490.2.

      . Webster’s Ninth New Collegiate Dictionary, Merriam-Webster, Inc., Springfield, Massachusetts, U.S.A. (1984) at p. 1098.

      . Webster’s Third New International Dictionary, 2120 (1986).

      . 3 P.S. §§951-957.


author: ABRAMSON, J.,

text:
    Telecommunications Network Design Inc. v. Brethren Mutual Insurance Co.

      Alan C. Milstein, Brian J. Wanca and Steven A. Smith for plaintiffs.

      Richard E. Rush, William J. Rogers, Michael J. Stack Jr. and Jerome A. Zaleski, for defendant.
    May 10, 2007
   ABRAMSON, J.,

Plaintiff Paradise Distributing Inc. was the insured under two Business Owners’ Liability Coverage insurance policies issued by defendant Brethren Mutual Insurance Company for the periods July 8, 2001 through July 8, 2002 and July 8, 2002 through July 8, 2003. In May, 2003, Paradise was sued by plaintiff Telecommunications Network Design Inc. (TND) in the Circuit Court of Cook County Illinois (the underlying action). In that action, TND claimed to represent a class of persons and entities who had wrongfully received advertisements for Paradise’s services by facsimile transmission.

Brethren refused to defend and indemnify Paradise under the policies in the underlying action. Ultimately, Paradise and the class settled and “the court enter[ed] judgment against [Paradise] and in favor of the class in the total amount of $3,999,999 . . . said judgment to be satisfied only from the proceeds of the insurance policies which [Paradise] assigned to plaintiff class.” As a result of this settlement, TND and Paradise brought this action against Brethren for defense costs, indemnification of the settlement amount, and bad faith damages.

This court bifurcated the case, so that the issue of whether Brethren had a duty to defend Paradise in the underlying action could be addressed first. Only if such a duty is found to exist will the issues of indemnification and bad faith subsequently need to be addressed. Both Brethren and TND/Paradise have filed motions for judgment on the pleadings regarding the duty to defend, which motions are presently before the court.

“A court’s first step in a declaratory judgment action concerning insurance coverage is to determine the scope of the policy’s coverage.” The policies provide as follows:

“We will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury,’ ‘property damage,’ ‘personal injury’ or ‘advertising injury’ to which this insurance applies. We will have the right and duty to defend any ‘suit’ seeking those damages. We may at our discretion investigate any ‘occurrence’ or offense and settle any claim or ‘suit’ that may result.”

Paradise does not claim that it is covered under the “bodily injury” provisions, but it does claim coverage under the “property damage,” “advertising injury” and “personal injury” provisions.

Under the policies, “property damage” must be caused by an “occurrence” in order to be covered. “Property damage” is defined as “physical injury to tangible property” and “loss of use of tangible property.” “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” “Property damage” that is “expected or intended from the standpoint of the insured” is not covered.

In order to be covered, “personal injury” must be “caused by an offense arising out of your business, excluding advertising, publishing, broadcasting or telecasting done by or for you.” “Personal injury” must also arise out of certain enumerated acts including “oral or written publication of material that violates a person’s right of privacy.”

“Advertising injury” is covered only if it is “caused by an offense committed in the course of advertising your goods, products or services.” “Advertising injury” must arise out of certain enumerated acts including “oral or written publication of material that violates a person’s right to privacy.”

“After determining the scope of coverage, the court must examine the complaint in the underlying action to ascertain if it triggers coverage. If the complaint against the insured avers facts that would support a recovery covered by the policy, then coverage is triggered and the insurer has a duty to defend until such time that the claim is confined to a recovery that the policy does not cover.”

In its original complaint, TND, on behalf of a class of others similarly situated, asserted claims against Paradise for violation of the federal Telephone Consumer Protection Act (TCPA), for common-law conversion, and for violation of the Illinois Consumer Fraud and Deceptive Practices Act (ICFDPA). Specifically TND alleged as follows:

“[Paradise] transmitted by telephone facsimile machine an unsolicited advertisement [as defined by the TCPA] to a facsimile machine owned by [TND]....

“[Paradise] violated [the TCPA] by transmitting exhibit A to [TND] and the other members of the class without obtaining their consent and without having a prior business relationship with them.

“[Paradise’s] actions caused damages to [TND] and the other class members, because their receipt of [Paradise’s] unsolicited fax advertisements caused them to lose paper and toner consumed as a result.

“If the evidence shows [Paradise’s] violation was willful, [TND] requests that the court treble the damages.

“By sending [TND] and the other class members unsolicited faxes, [Paradise] improperly and unlawfully converted their fax machine and paper to its own use.

“By sending the unsolicited faxes, [Paradise] permanently misappropriated the class members’ fax machine toner and paper to [Paradise’s] own use. Such misappropriation was wrongful and without authorization.

“[Paradise] knew or should have known that its misappropriation of paper and toner was wrongful and without authorization....

“[Paradise’s] unsolicited fax practice is an unfair practice, because it violates public policy, because it forced [TND] and the other class members to incur expense without any consideration.

“[Paradise] violated the unfairness predicate of the [ICFDPA] by engaging in an unscrupulous business practice and by violating Illinois statutory public policy, which public policy violations in the aggregate caused substantial injury to hundreds of persons.”

TND subsequently amended its complaint to add Canafax Marketing as a defendant. Canafax was apparently retained by Paradise to transmit the offending faxes to the class. The first amended class action complaint contained the following allegations that differ slightly from those contained in the original complaint:

“[Paradise and Canafax] transmitted by telephone facsimile machine an unsolicited advertisement to [TND’s] facsimile machine....

“The [TCPA] is a strict liability statute, so [Paradise and Canafax] are liable to [TND] and the other class members even if their actions were only negligent.

“If the court finds that [Paradise and Canafax] willfully and knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, [treble the damages awarded].

“[Paradise and Canafax] violated [the TCPA] by transmitting exhibit A hereto to [TND] and the other members of the class without obtaining their prior express permission or invitation....

“[Paradise’s and Canafax’s] actions caused damages to [TND] and the other class members because their receipt of [Paradise’s and Canafax’s] unsolicited fax advertisements caused them to lose paper and toner consumed as a result. [Paradise’s and Canafax’s] actions prevented [TND’s] fax machine from being used for [TND’s] business purposes during the time [Paradise and Canafax] were using [TND’s] fax machine for [Paradise’s and Canafax’s] illegal purpose. [Paradise’s and Canafax’s] actions also cost [TND] employee time, as [TND’s] employees used their time receiving, routing and reviewing [Paradise’s and Canafax’s] illegal faxes and that time otherwise would have been spent on [TND’s] business activities....

“By sending [TND] and the other class members unsolicited faxes, [Paradise and Canafax] improperly and unlawfully converted [TND’s] fax machine toner, paper and employee time to their own use....

“[Paradise and Canafax] knew or should have known that their misappropriation of [TND’s] resources was wrongful and without authorization.

“[TND] and the other class members were deprived of valuable resources, which because of [Paradise and Canafax] could not be used for any other purpose. [Paradise’s and Canafax’s] unsolicited faxes caused unauthorized wear and tear of the class members’ machines. ...

“[The ICFDPA] makes it a petty criminal offense to transmit unsolicited facsimile advertisements to Illinois residents and sets a $500 fine for each violation of this criminal statute.

“[Paradise’s and Canafax’s] unsolicited fax practice is an unfair practice because it violates public policy. It forced [TND] and the other class members to incur expense without any consideration....

“Through its repeated misconduct, [Paradise and Canafax] caused substantial injury to the class and caused them economic damage, including the loss of paper, toner, ink, wear and tear on their facsimile machines, and business interruption. By faxing unsolicited advertisements to them, [Paradise and Canafax] forced the class members to pay for [Paradise’s and Canafax’s] advertising campaign, when they had no obligation to pay any portion of [Paradise’s and Canafax’s] costs.”

I. BRETHREN HAD NO DUTY TO DEFEND PARADISE UNDER THE PERSONAL INJURY COVERAGE PROVISIONS

As both complaints make clear, the faxes sent by Paradise and/or Canafax were sent as part of an advertising campaign for Paradise’s services. There is no coverage under the “personal injury” provisions of the policies if the offense out of which the personal injury arises constitutes “advertising.” Since the complaints allege improper transmission of advertising faxes, they do not allege a potentially covered personal injury.

II. BRETHREN HAD NO DUTY TO DEFEND PARADISE UNDER THE ADVERTISING INJURY COVERAGE PROVISIONS

The complaints do not allege that the class members were hanned by the content of the faxes transmitted; instead their claimed harm arises solely from the improper transmittal of the faxes to them. However, the advertising injury provisions of the policies cover only “publication of material that violates a person’s right to privacy.” Since the modifying clause beginning with the word “violates” was placed at the very end of the sentence, next to the word “material,” it is clear that the content of the communication must be the cause of the harm, not the mere “publication” or transmission of it. If one were to read this provision as TND would like, with the clause that begins with “violates” modifying the word “publication,” then the words “of material” would be rendered meaningless, which is not a proper result. Since the complaints allege improper transmission of unsolicited faxes whose content was harmless, they do not allege a potentially covered advertising injury.

III. BRETHREN HAD A DUTY TO DEFEND PARADISE UNDER THE PROPERTY DAMAGE COVERAGE PROVISIONS

Both complaints allege that Paradise caused “property damage” to TND by using its toner and paper without permission and by causing TND to lose the use of its facsimile machine temporarily. The question is whether the complaints also allege that such “property damage” was accidental, i.e., not “expected or intended from the standpoint of” Paradise. Brethren argues that sending facsimiles is an intentional act, so there is no coverage. TND argues that the TCPA is a strict liability statute and a claim for violation of it does not have to be based on an intentional act, so there is a duty to defend, at least until it became clear that Paradise intentionally transmitted its advertisements to the plaintiff class.

TND’s argument has merit, particularly in light of the fact that the original complaint against Paradise was later amended to allege claims against an intermediary, Canafax, which Paradise apparently hired to do the facsimile transmitting for it. It is possible that in hiring Canafax, Paradise did not intend or expect its advertisements to be sent to unwilling recipients and that Canafax did so without Paradise’s knowledge and/or consent. It is also possible that Paradise provided Canafax with the list of class members’ facsimile numbers and that Paradise thereby did intend or expect to harm them. Without knowing the details of the relationship between Canafax and Paradise, neither this court, nor Brethren, can say for sure that Paradise was being accused in the complaints of intentionally transmitting its advertisements to the class. Therefore, Brethren had a duty to defend Paradise, at least until such time as it became clear that the class’s claim was that Paradise intended to cause property damage to the class.

CONCLUSION

For all the foregoing reasons, Paradise’s motion for judgment on the pleadings is granted in part and denied in part, and Brethren’s motion for judgment on the pleadings is denied.

ORDER

And now, May 10,2007, upon consideration of plaintiffs’ motion for judgment on the pleadings, defendant’s motion for judgment on the pleadings, the responses thereto, and all other matters of record, and in accordance with the opinion issued simultaneously, it is hereby ordered that plaintiffs’ motion is granted in part. Defendant had a duty to defend Paradise Distributing Inc. in the underlying class action until such time, if ever, that the class’s claims were limited to a claim that Paradise intended or expected that its facsimile advertisements would be transmitted to the plaintiff class. The defendant’s motion and the remainder of plaintiffs’ motion are denied.

      . Complaint, ¶25.

      . General Accident Insurance Company of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997).

      . First Policy, §A.1.a; Second Policy, §A.1.a. The Second Policy also states that “we will have no duty to defend the insured against any ‘suit’ seeking damages for ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to which this insurance does not apply.” Second Policy, §A.1.a. This language simply makes explicit that which was implicit in the First Policy, and it does not alter the coverage provided.

      . First Policy, §A.1.b.1; Second Policy, §A.1.b.1.

      . First Policy, §F.15; Second Policy, §F.15.

      . First Policy, §F.12; Second Policy, §F. 12.

      . First Policy, §B.1.a; Second Policy, §B.1.a.

      . First Policy, §A.1.b.2.a; Second Policy, §A.1.b.2.a.

      . First Policy, §F.13.e; Second Policy, §F.13.e. The other enumerated acts are false imprisonment, malicious prosecution, wrongful eviction, defamation and disparagement, none of which are applicable here.

      . First Policy, §A.1.b.2.b; Second Policy, §A.1.b.2.b.

      . First Policy, §F.1.b; Second Policy, §F.1.b. The other enumerated acts are defamation and disparagement, misappropriation of ideas or style, and copyright and title infringement, none of which are applicable here.

      . General Accident Insurance Company of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997).

      . 47 U.S.C §227.

      . Class action complaint, ¶12.

      . Id., ¶¶24-26.

      . Id., ¶32.

      . Id., ¶¶34-35.

      . Id., ¶¶44-45.

      . See first amended class action complaint, ¶10.

      . Id, ¶ 11.

      . Id., ¶¶23-25.

      . Id., ¶27.

      . Id., ¶34.

      . Id., ¶¶36-37

      . Id, ¶¶44-45.

      . Id., ¶48.

      . First Policy, §A.1.b.2.a; Second Policy, §A.1.b.2.a.

      . First Policy, §F.13.e; Second Policy, §F.13.e.

      . “[T]he cardinal principle of interpretation [is] that an insurance policy must be construed in such a manner as to give effect to all of its provisions. Nor may it be construed in such a way as to render any part of it useless and unnecessary.” Mutual of Omaha Insurance Company v. Bosses, 428 Pa. 250, 254, 237 A.2d 218, 220 (1968).

      . See Am. States Ins. Co. v. Capital Assocs. of Jackson County, 392 F.3d 939, 943 (7th Cir. 2004) (The TCPA “condemns a particular means of communicating an advertisement — rather than the contents of that advertisement — while an advertising-injury coverage deals with informational content”); Melrose Hotel Co. v. St. Paul Fire and Marine Ins. Co., 432 F. Supp.2d 488, 502 (E.D. Pa. 2006) (The offenses enumerated in [the advertising injury] provision clearly relate to the content of the covered material ... All of these offenses address the message conveyed rather than the method of conveyance”). But see Park Univ. Enters. Inc. v. Am. Cas. Co. of Reading, Pa., 442 F.3d 1239, 1251 (10th Cir. 2006) (“The transmission of an allegedly unsolicited fax can constitute a publishing act, while receiving the same can result in an invasion of privacy. An asserted TCPA violation easily dovetails, therefore, with the language in the insurance policy”).

      . First Policy, §B.1.a; Second Policy, §B.1.a.

      . The TCPA provides that “It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States ... to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless—
      “(i) the unsolicited advertisement is from a sender with an established business relationship with the recipient;
      “(ii) the sender obtained the number of the telephone facsimile machine through—
      “(I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or
      “(II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution.” 47 U.S.C. §227(1)(C).

      . See Park Univ. Enters. v. Am. Cas. Co., 442 F.3d 1239, 1245 (10th Cir. 2006) (“[T]here was a possible occurrence under the policy because the alleged property damage may have been an accident and not the natural and probable consequence of Park University’s intentional fax transmission”); Prime TV LLC v. Travelers Ins. Co., 223 F. Supp. 2d 744, 752 (M.D.N.C. 2002) (“Although the fax companies intentionally sent the facsimiles to the recipients, as ordered by [the insured], [the insured] believed that the recipients requested the information regarding [the insured’s] services. Therefore, although [the insured] intentionally requested the advertisements to be faxed, such a request is not an intentional act made with the intent to cause property damage. Thus, the ‘property damage’ was the result of an ‘occurrence’ as defined by the policies and [the insurers] have a duty to defend [the insured] in the underlying state actions”). But see Melrose Hotel, 432 F. Supp.2d at 510 (“Because of the absence of: (1) any distinct allegations that [the insured] acted negligently; (2) any evidence that the faxes were accidentally sent to those who did not wish to receive them; or (3) any evidence that [the insured] believed that the faxes would go only to those who had authorized their receipt, the court concludes that sending the faxes cannot be deemed an ‘event’ under the policy”). This court disagrees with the Melrose Hotel court’s holding. While the failure to produce such evidence may justify a finding that there was ultimately no duty of the insurer to indemnify the insured, such evidence is rarely available at the time that the initial decision to defend a TCPA claim is made. Since the TCPA claims in this case do not, and need not, specify whether the insured acted intentionally or accidentally, the insurer must defend until the matter of intent is resolved.


author: BROWN JR., P.J.,

text:
    Regis Insurance Co. v. All American Rathskeller Inc.

      Miles A. Kirshner, for plaintiff.

      Robert C. Rayman, for defendant.

      April 9, 2007
   BROWN JR., P.J.,

Before the court is a motion for summary judgment filed by defendant All American Rathskeller Inc. Because this court determines plaintiff Regis Insurance Company has a duty to indemnify defendant based on the Pennsylvania Superior Court’s recent holding in QBE Insurance Corporation v. M & S Landis Corporation, 915 A.2d 1222 (Pa. Super. 2007), this court grants defendant’s motion.

HISTORY

On the morning of October 26, 2003, Salvador Peter Serrano died while being restrained by employees of defendant All American Rathskeller Inc. On August 25, 2004, Grace Jiminez (administratrix of Serrano’s estate) and Brooke E. Morgan (Serrano’s fiancée) filed a civil action (underlying action) in the United States District Court for the Middle District of Pennsylvania against, inter alia, defendant Rathskeller. The complaint in the underlying action alleged negligence on the part of defendant Rathskeller in training, supervising and hiring its staff, as well as negligence on the part of defendant Rathskeller’s agents in restraining Serrano. This matter was scheduled for trial in the fall of 2006. However, the case settled out of court prior to the trial.

On October 20,2004, plaintiff Regis Insurance Company, the insurance carrier for defendant Rathskeller, filed the present case in this court. Plaintiff sought a declaratory judgment that it had neither a duty to defend nor indemnify defendant Rathskeller in the underlying action based on an assault and battery exclusion in the insurance policy defendant Rathskeller had with plaintiff.

Following the closing of the pleadings, plaintiff filed a motion for judgment on the pleadings, or in the alternative, motion for summary judgment. By order dated March 15,2006, this court denied plaintiff’s motions. In the accompanying opinion, this court stated that the assault and battery exclusion in defendant Rathskeller’s policy with plaintiff is applicable in the underlying action.

Following the issuance of this court’s March 15,2006 order, plaintiff filed a petition for permission to appeal to the Pennsylvania Superior Court. By order dated November 30, 2006, the Superior Court denied plaintiff’s petition.

On January 31,2007, defendant Rathskeller filed the motion for summary judgment now before this court. Oral argument on defendant’s motion was held on March 29, 2007.

DISCUSSION

In its motion for summary judgment, defendant Rathskeller maintains that the Superior Court’s recent decision in QBE Insurance Corporation v. M & S Landis Corporation, 915 A.2d 1222 (Pa. Super. 2007), is controlling in the instant matter. Therefore, according to defendant Rathskeller, the assault and battery exclusion in its policy with plaintiff does not exclude coverage in the underlying action, and plaintiff has a duty to indemnify defendant Rathskeller for the settlement amount paid in the underlying action. This court agrees.

“[Sjummary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.” Chepkevich v. Hidden Valley Resort L.P., 911 A.2d 946, 950 (Pa. Super. 2006) (citing Weber v. Lancaster Newspapers Inc., 878 A.2d 63, 71 (Pa. Super. 2005) (citation omitted)). “In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party.” Id. (citing Weber, 878 A.2d at 71). “[O]nly when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Id. (citing Weber, 878 A.2d at 71).

In the present matter, this court determines no genuine issue of material fact exists and defendant Rathskeller is entitled to judgment as a matter of law, based on the Superior Court’s decision in QBE. The facts presented in QBE are analogous to the facts in the underlying action involved in the present matter — a wrongful death and survival action was brought against the owners of a nightclub (“Fat Daddy’s”) after a patron was restrained by the nightclub’s staff in such a manner that caused the patron’s death. 915 A.2d at 1224. As a result of the lawsuit, Fat Daddy’s sought defense and indemnification from its insurance carrier, QBE. Id. Citing an assault and battery exclusion in the insurance policy, QBE denied coverage. Id. QBE then filed a declaratory judgment action, seeking a declaration that it had no obligation to defend or indemnify Fat Daddy’s for the alleged incident. Id. QBE subsequently filed a motion for summary judgment, which the trial court granted. Id. Thereafter, Fat Daddy’s appealed the trial court’s grant of summary judgment. Id.

Citing with approval a similar case decided by the Court of Appeals for the Third Circuit (i.e., Essex Insurance Company v. Starlight Management Company, 198 Fed. Appx. 179 (3d Cir. 2006) (unpublished opinion)), the QBE court explained that “in light of the allegations of negligence in the underlying complaint which seeks relief only for negligence, the assault and battery exclusion does not apply.” 915 A.2d at 1229. As a result, the court stated as follows: “[W]e find that QBE has an obligation to defend [Fat Daddy’s] in the underlying action, with its obligation to indemnify [Fat Daddy’s] depending on the facts developed at trial in that action.” Id. at 1229-30.

Despite the striking similarity in the facts of QBE and the underlying action in this case, plaintiff maintains QBE is not controlling because the issue here is a duty to indemnify (not a duty to defend, as in QBE) since the underlying action has already been settled. This court determines that in spite of this distinction, the holding of QBE nevertheless is applicable: if the underlying complaint is based on a negligence cause of action, an assault and battery exclusion in the insurance policy does not preclude coverage. The QBE court’s language stating that QBE’s duty to indemnify Fat Daddy’s depends on the facts developed at trial is inapposite to the case at hand because no facts will ever be developed in this underlying action since the case has settled. Consequently, the only issue is whether or not an assault and battery exclusion bars coverage for a negligence-based action. This court concludes that it does not. Accordingly, this court determines defendant Rathskeller is entitled to summary judgment in its favor.

ORDER

And now, April 9, 2007, defendant All American Rathskeller Inc.’s motion for summary judgment is granted. Plaintiff’s request for a declaration that it has no duty to indemnify defendant All American Rathskeller Inc. is denied.


author: MILLER, J,

text:
    Anthony Dandola Associates Mortgage Corp. v. Makhoul

      Jason M. Leon, for petitioner.

      Rebecca Craggs, for respondent Makhoul.

      James F. Marsh, for Monroe County Tax Caim Bureau.
    June 30, 2006
   MILLER, J,

I. FINDINGS OF FACT

(1) On May 22, 2003, the petitioner, Anthony Dándola Associates Mortgage Corp., took title to a parcel of land situate in Delaware Water Gap Borough, identified as .13 acres and Tax Code number 4/113704. The land was vacant at the time purchased and remains vacant through the present date.

(2) When the petitioner failed to make payment of the real estate taxes for the year 2003, the Monroe County Tax Claim Bureau scheduled an Upset Tax Sale for the premises for September 14, 2005.

(3) On May 18,2005, the Monroe County Tax Claim Bureau dispatched a written notice to the petitioner at his Ramsey, New Jersey address advising him that:

“Your property is about to be sold without your consent for delinquent taxes. Your property may be sold for a small fraction of its market value.”

The notice also advised of the time and date of the sale and that the sale would be published in the Pocono Record and the Monroe County Legal Reporter on August 12, 2005. The records of the Monroe County Tax Claim Bureau show that this notice was sent to the correct address and received by the company (see page 10 of joint exhibit no. 1).

(4) On August 2,2005, a representative of the Monroe County Tax Claim Bureau posted a notice of sale on the property.

(5) On August 2,2005, the Monroe County Tax Claim Bureau returned a business check to the petitioner along with a letter explaining that payment for the 2003-2004 taxes was required to be made with money order, cashiers check or certified check. It also told petitioner that the property was subject to tax sale on September 14, 2005.

(6) On September 14, 2005, respondent Kamal F. Makhoul purchased the subject premises at the Upset Tax Sale.

II. DISCUSSION

In Casanta v. Clearfield County Tax Claim Bureau, 62 Pa. Commw. 216, 435 A.2d 681 (1981), our Commonwealth Court held that in tax sale cases, the tax claim bureau has the burden of proving compliance with the statutory notice provisions. Thus, the Real Estate Tax Sale Law imposes duties, not on owners, but on the agencies responsible for sales; and such of those duties as relate to the giving of notice to owners of impending sales of their property must be strictly complied with. The notice requires notice to be delivered to the record owner of the property exposed to tax sale and the general public in three ways. The first is publishing notice of the sale in a newspaper of general circulation in the county and the county legal journal designated by the court for publication of legal notices. Secondly, each owner must receive notice at least 30 days in advance by certified mail, return receipt requested. Finally, a notice conforming to the statute must be posted on the property subject to the sale at least 10 days prior to the sale.

In the case at bar, the records of the Tax Claim Bureau submitted as a joint exhibit by the parties has established all of the foregoing aspects of notice to the petitioner in this case. While the petitioner did not appear at our evidentiary hearing, the record confirms that notice of the sale was published both in the Pocono Record and the Monroe County Legal Reporter and the property itself was posted.

The primary issue raised by petitioner’s counsel was whether or not petitioner received actual notice of the sale. The certified record of the Tax Claim Bureau admitted without objection contains the notice forwarded on May 18, 2005 and the return receipt signed and postmarked Ramsey, New Jersey, June 7, 2005. While petitioner’s counsel argues that there is no evidence that the signer of the return receipt had authority to accept mail from the corporation, the court has no evidence to the contrary. We find that petitioner’s argument of notice is without merit.

Petitioner’s second legal argument is that he attempted in good faith to pay these taxes and the check was returned by the Tax Claim Bureau. The certified record indicates that on August 2, 2005, the Tax Claim Bureau returned a business check to petitioner’s address in Ramsey, New Jersey. The cover letter from the Tax Claim Bureau advised petitioner that only money orders, cashiers checks or certified checks are acceptable. The notice on May 28, 2005 forwarded to petitioner states the following:

“We accept only certified checks, money orders or cashiers checks. No cash, personal checks or business checks accepted.”

Petitioner has cited no legal authority to support his argument that a good faith attempt to pay the taxes allows us to set aside the sale. Our research has not uncovered any legal authority either.

III. CONCLUSION

(1) The Monroe County Tax Claim Bureau complied with all the notice requirements of 72 P.S. §5860.602 before subjecting the petitioner’s premises to a tax sale.

(2) An attempt to make payment which does not comply with the requirements of the notice is not the basis to set aside a tax sale.

ORDER

And now June 30,2006, it is ordered that the petition of Anthony Dandola Associates Mortgage Corp. to set aside the Upset Tax Sale of its premises situated in Delaware Water Gap Borough, Monroe County, Pennsylvania, identified as Tax Code number 4/113704 is dismissed.


author: PEREZOUS, J,

text:
    Hess v. Sexchick Poultry Services Inc.

      Robert S. Cronin, for plaintiffs.

      Stephanie Carftey, for defendant Sexchick Poultry Services.

      John S. Lawler, for defendant Mortensen.
    August 23, 2006
   PEREZOUS, J,

This matter is before the court on preliminary objections filed by the defendants, Sexchick Poultry Services Inc., and Francis M. Mortensen, personal representative for the estate of Lewis L. Mortensen, against the complaint of the plaintiffs, David L. Hess and Edwin Hess, t/a Hess business Brokers. Defendants contend that plaintiffs’ complaint contains several defects and/or deficiencies. Specifically, defendant Sexchick argues that the conversion claim found in Count V, and unjust enrichment claims found in Counts II and IV fail to state claims upon which relief can be granted. Defendant Mortensen avers that the breach of contract claim found in Count I and unjust enrichment claim found in Count II fail to state claims upon which relief can be granted, and also contends that the breach of contract claim is insufficiently specific. For the following reasons, the preliminary objections are overruled, in part, and sustained, in part, in accordance with this opinion.

According to the complaint, plaintiffs and defendants entered into a written business listing agreement on July 15, 2002. Pursuant to this agreement, the defendants hired plaintiffs as their sole and exclusive agent for the sale of Sexchick. Paragraph 3 of the agreement states as follows:

“The commission or fee for professional services under this contract has been negotiated as follows: in the event of a sale, transfer or exchange, in whole or in part, of the business, assets, or corporate stock of the listed business, including any contracts for personal services or consulting from one party to the other, by whomsoever made or effected, including the owner, or if company procures a purchaser ready, willing and able to buy the business at the listing price within the period of time this contract is in force, the owner agrees to pay company a commission of 10 percent of the selling price ” Plaintiffs’ exhibit A. This agreement was, by its terms, to expire on October 15, 2003.

Despite their best efforts, plaintiffs were unable to secure the sale of Sexchick to an independent third party. However, during the term of the agreement, defendant Lewis Mortensen allegedly negotiated and executed an amended shareholders’ agreement pursuant to which his shares of Sexchick were to be sold/transferred to the corporation, itself, upon his death. On April 26, 2003, Mr. Mortensen died, and his interest in Sexchick was sold/transferred to defendant Sexchick in exchange for an amount in excess of $ 1,000,000. Therefore, plaintiffs aver that defendants are liable to plaintiffs for commissions equaling 10 percent of the amount that the estate of Mr. Mortensen received from defendant Sexchick for his interest in the company.

In addition to the aforementioned agreement, plaintiffs and defendant Sexchick allegedly entered into an oral corporate consulting agreement on or about October 7, 2002. Pursuant to this agreement, plaintiffs were to provide, and did provide, services including but not limited to: (a) establishing a fair market value for Sexchick; (b) evaluating the corporate minutes of Sexchick; (c) assisting Sexchick in locating and retaining an accounting firm; and (d) assisting Sexchick in locating and retaining legal services for the purposes of revising and amending Sexchick’s shareholders’ agreement. In exchange for these services, defendant Sexchick allegedly agreed to pay $52,500. Plaintiffs received $10,000 in October 2002, as a down payment for these services, but the balance has not been paid.

Plaintiffs filed the complaint on March 6,2006. It sets forth breach of contract and unjust enrichment claims against both defendants, and a conversion claim against defendant Sexchick. On March 24, 2006, defendant Sexchick filed preliminary objections to Counts II and IV of the complaint, which allege unjust enrichment relating to the business listing agreement and corporate consulting agreement, respectively. It also filed preliminary objections to Count V, which alleges a conversion claim against defendant Sexchick. Defendant Mortensen filed preliminary objections on March 29,2006 to Counts I and II, which allege breach of contract and unjust enrichment claims relating to the business listing agreement. The parties filed their supporting argument briefs and the matter is now ripe for review.

It is well-settled in this Commonwealth that “preliminary objections in the nature of demurrers are to be sustained only where facts averred in a complaint are clearly insufficient to establish the pleader’s right to relief.” HCB Contractors Inc. v. Liberty Place Hotel Associates, 539 Pa. 395, 397, 652 A.2d 1278, 1279 (1995). In detennining whether to grant a demurrer, the court must accept as true all of the well-pleaded material facts set forth in the complaint and all of the inferences fairly deducible from those facts. Small v. Horn, 554 Pa. 600, 608, 722 A.2d 664, 668 (1998). When doubt exists as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling the demurrer. Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997).

In the present case, defendant Mortensen contends that plaintiffs’ breach of contract claim fails to state a claim upon which relief can be granted. She contends that plaintiffs were to be paid 10 percent of the listing price of Sexchick only if they were successful in presenting a buyer willing to purchase Sexchick. She points to the following language of the contract:

“If company [Hess Business Brokers] procures a purchaser ready, willing and able to buy the business at the listing price within the period of time this contract is in force, the owner agrees to pay the company a commission of 10 percent of the selling price, but in any event the commission owed to the company shall not be less than $ N/A.” Plaintiffs’ exhibit A.

Based upon this language, defendant Mortensen argues that the only event that triggered payment of the commission was the plaintiffs’ securing a buyer to purchase Sexchick. Since plaintiffs failed to do this, defendant claims that they are not entitled to any commission.

Defendant Mortensen, however, fails to address the preceding language contained in paragraph 3 of the business listing agreement:

“The commission or fee for professional services under this contract has been negotiated as follows: in the event of a sale, transfer or exchange, in whole or in part, of the business, assets, or corporate stock of the listed business, including any contracts for personal services or consulting from one party to the other, by whomsoever made or effected, including the owner [defendants Sexchick and Mortensen] or if the company [Hess Business Brokers] procures a purchaser ready____” Plaintiffs’ exhibit A. (emphasis added)

According to this language, plaintiffs were owed a commission in the event of a transfer or exchange, in whole or in part, of the corporate stock of the listed business by whomsoever made or effected the transaction, including defendants.

According to the complaint, Mortensen negotiated and executed an amended shareholders’ agreement, whereby his shares of Sexchick were to be sold/transferred to Sexchick upon his death. This transfer occurred when Mortensen died in April 2003, when the agreement was in effect. As the complaint sets forth, defendants had a duty under the express terms of the agreement to pay the commission for the amount received from this transfer, despite the fact that plaintiffs did not secure a purchaser for the company. Consequently, the court is unable to say with certainty that plaintiffs failed to state a claim upon which relief can be granted and the objection must be overruled.

Defendant Mortensen also argues that plaintiffs failed to plead the material facts to support a claim for breach of contract. Pursuant to the Rules of Civil Procedure, a plaintiff is required to state the material facts on which a cause of action is based in a concise and summary form. Pa.R.C.P. 1019(a). Rule 1028(a)(3) permits a preliminary objection for insufficient specificity in a pleading. In evaluating whether a pleading is sufficiently specific, the question is “whether the pleading is sufficiently clear to enable the defendant to prepare his defense.” Paz v. Commonwealth, Department of Corrections, 135 Pa. Commw. 162, 170, 580 A.2d 452, 456 (1990). In the present case, the complaint is sufficiently specific to enable the defendant to adequately prepare his defense. As such, the court must overrule the objection.

In a breach of contract action, a plaintiff must allege facts supporting three elements: “(1) the existence of a contract, (2) a breach of a duty imposed by the contract, and (3) damages.” Sullivan v. Chartwell Investment Partners LP, 873 A.2d 710, 716 (Pa. Super. 2005). As plaintiffs argue, the factual allegations pled in the complaint set forth, with the required specificity, a legal cause of action against Mortensen for breach of the business listing agreement. First, plaintiffs alleged the essential terms of the contract, and attached the business listing agreement to the complaint. Second, plaintiffs alleged that defendant Mortensen breached the duty owed to plaintiffs by failing and refusing to pay the commissions required under the business listing agreement as a result of the April 26, 2003 transfer of Mortensen’s interest in Sexchick. Finally, plaintiffs alleged damage in an amount in excess of $100,000 as a result of Mortensen’s failure to abide by the terms of the business listing agreement. Therefore, plaintiffs’ breach of contract claim should not be dismissed for insufficient specificity.

Both defendants also contend that the unjust enrichment claim found in Count II fails to state a claim upon which relief can be granted. In order to state a cause of action for unjust enrichment, a plaintiff must allege that (1) it conferred benefits on the defendant; (2) the defendant appreciated and accepted such benefits, and (3) it would be inequitable for the defendant to retain the benefits without payment of value. Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616, 622 (Pa. Super. 1999). In Villoresi v. Femminella, 856 A.2d 78 (Pa. Super. 2004), the Superior Court determined that the parties’ transaction was fully delineated within the confines of the written agreement, and confined the plaintiff to his remedies under the contract. Id. at 84-85. Thus, the unjust enrichment was disallowed, and the Superior Court affirmed the order of the trial court granting the defendant’s preliminary objections to the plaintiff’s complaint.

The Superior Court stated that “[a] cause of action for unjust enrichment may arise only when a transaction of the parties not otherwise governed by an express contract confers a benefit on the defendant to the plaintiff’s detriment without any corresponding exchange of value.” Id. at 84. “Where an express contract already exists to define the parameters of the parties’ respective duties, the parties may avail themselves of contract remedies and an equitable remedy for unjust enrichment cannot be deemed to exist.” Id. In other words, when a written agreement exists, a party’s remedy is based on the terms of the agreement; quasi-contractual remedies are precluded. See id. at 85.

In the present case, the transaction between the parties was governed by the business listing agreement. The agreement delineated the scope of the duties owed by the parties, and called for a 10 percent commission in the event of a sale/transfer of Sexchick. The complaint alleges that the duties owed under the contract were provided by plaintiffs, and demands an amount in excess of $100,000 pursuant to their unjust enrichment claim. The amount demanded by plaintiffs under their unjust enrichment claim equals the commission that is allegedly due under the agreement. As stated in Villoresi, however, “the existence of the written agreement . . . confine [s plaintiffs] to a contract remedy and preclude [s] a claim of quasi-contract.” Id. at 85. Therefore, plaintiffs’ unjust enrichment claim fails to state a claim upon which relief can be granted and the objections to Count II are sustained.

Next, defendant Sexchick contends that the unjust enrichment claim found in Count IV fails to state a claim upon which relief can be granted. In Count IV, plaintiffs allege that they provided certain services on behalf of defendant Sexchick that conferred a benefit upon it. Defendant allegedly accepted the benefit of these services, and retained the benefit of these services without paying plaintiffs fair and reasonable compensation. Plaintiffs further allege that the value of these services total $42,500 plus costs and fees.

This amount is also allegedly due plaintiffs under the terms of an alleged corporate consulting agreement, which was an oral contract according to the complaint. Unlike the business listing agreement, the validity of this agreement is not clear at this stage of the proceedings. Based upon this factor, along with Pennsylvania Rule of Civil Procedure 1020, which permits causes of action to be pled in the alternative, the court will not dismiss the unjust enrichment claim relating to the services provided pursuant to the alleged corporate consulting agreement. As such, the court overrules the objection.

Finally, defendant Sexchick contends that plaintiffs’ conversion claim found in Count V fails to state a claim upon which relief can be granted. In Count V, plaintiffs assert a claim for the aforementioned $42,500 under a theory of conversion. “Conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, without the owner’s consent and without lawful justification.” Shonberger v. Oswell, 365 Pa. Super. 481, 484, 530 A.2d 112, 114 (1987). As defendant points out, it is well-settled that failure to pay a debt is not conversion. Francis J. Bernhardt III, P.C. v. Needleman, 705 A.2d 875, 878 (Pa. Super. 1997). In addition, claims for conversion have been consistently disallowed where such claims are based on the same facts as the contract claim. Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 584 (Pa. Super. 2003). As one court stated, “if a plaintiff’s rights to property are defined by a contract with a defendant, then that plaintiff may not sue that defendant in tort for conversion of that property.” Phoenix Four Grantor Trust #1 v. 642 North Broad Street Associates, 2000 WL 876728 *9 (E.D. Pa. 2000).

In the present case, plaintiffs’ conversion claim is based upon defendant Sexchick’s alleged failure to pay a debt or money that was owed under an oral agreement. Based upon the previous discussion, then, plaintiffs’ conversion claim fails to state a claim upon which relief can be granted. Therefore, the court sustains the objection and CountV is dismissed.

Accordingly, the court enters the following:

ORDER

And now, August 23,2006, upon consideration of the preliminary objections filed by the defendants, Sexchick Poultry Services Inc. and Francis M. Mortensen, personal representative for the estate of Lewis L. Mortensen, against the complaint of the plaintiffs, David L. Hess and Edwin Hess, t/a Hess Business Brokers, together with the briefs and supporting papers filed by the parties, it is hereby ordered that:

(1) Defendant Mortensen’s preliminary objection on the grounds that the breach of contract claim found in Count I of the complaint fails to state a claim upon which relief can be granted and should be dismissed is overruled;

(2) Defendant Mortensen’s preliminary objection on the grounds that the breach of contract claim found in Count I of the complaint is insufficiently specific is overruled;

(3) Defendant Mortensen’s and defendant Sexchick’s preliminary objections on the grounds that plaintiffs’ unjust enrichment claim found in Count II of the complaint fails to state a claim upon which relief can be granted and should be dismissed are sustained;

(4) Defendant Sexchick’s preliminary objection on the grounds that plaintiffs’ unjust enrichment claim found in Count IV of the complaint fails to state a claim upon which relief can be granted and should be dismissed is overruled;

(5) Defendant Sexchick’s preliminary objection on the grounds that plaintiffs’ conversion claim found in Count V of the complaint fails to state a claim upon which relief can be granted and should be dismissed is sustained.

      . Plaintiffs’ demand for punitive damages found in Count V is stricken, as well.


author: MINORA, J,

text:
    Fuller v. D&H Corporation

      Lawrence M. Ludwig, for plaintiffs.

      Joseph A. O ’Brien and Timothy M. Kelly, for defendants.
    October 13, 2006
   MINORA, J,

INTRODUCTION

Currently before this court is a motion for summary judgment submitted by D&H, defendants in this action. Concurrently, in order to decide the instant motion, this court must interpret the consequences of an agreement reached decades ago.

In brief, the predecessors of both parties to this action had entered into an agreement for the conveyance of real property. Plaintiffs’ predecessors conveyed the real property; defendants’ predecessors purchased the real property and as a necessary condition were required to construct and maintain a bridge to serve as a servient right-of-way over the parcels conveyed by the plaintiffs’ predecessors and connecting their now bisected parcels of realty. Decades after the original agreement, plaintiffs claim that defendants ceased to perform continued maintenance on the bridge as required under the original agreement. As a result, the bridge was allowed to reach a state of disrepair and defendants ultimately removed it.

Plaintiffs insist the original agreement obligates the defendants to perform continued maintenance of the bridge into the future as a result of the agreement reached decades ago. Plaintiffs seek specific performance and ask this court to order defendants to construct a new bridge. In response, defendants filed a motion for summary judgment arguing generally that plaintiffs’ claims are time-barred by the applicable statute of limitations. This court now considers defendants’ motion for summary judgment.

STATEMENT OF THE CASE

The plaintiffs filed a praecipe for summons in civil action on January 6, 1999 against D&H Corporation, t/a D&H Railway, The Delaware and Hudson Company Inc., Guilford Transportation Industries Inc. t/a Delaware & Hudson Railway Company, Canadian Pacific Corporation, Canadian Pacific Limited and CP Rail System and successors and assigns. Plaintiffs filed their complaint later, on July 8,2002, alleging the following counts against the defendants:

(a) Count 1 — Breach of contract, specific performance

(b) Count 2 — Specific performance of deed covenant

(c) Count 3 — Breach of contract, damages

(d) Count 4 — Restitution for unjust enrichment

(e) Count 5 — Breach of the implied duty of good faith

(f) Count 6 — Promissory estoppel

Plaintiffs own approximately 300 acres in Dalton, Lackawanna County, Pennsylvania, hereinafter referred to as the Fuller estate. Plaintiffs’ predecessors, Mortimer B. Fuller and Kathryn S. Fuller, had conveyed two parcels of land to the Delaware, Lackawanna and Western Railroad Company (the DL&WRR), defendants’ predecessors, by deed dated November 22, 1912. This conveyance enabled the defendants’ predecessors to construct what the defendants’ predecessors had referred to as the “new line” between Scranton, Pennsylvania, and Binghamton, New York, which later became known as the “main line,” and most recently, the “freight main line.”

The terms of the deed excepted and reserved a right-of-way over or across parcel number 2 for Mortimer B. Fuller and his heirs, executors, administrators and assignees. This right-of-way was to be a location determined by and in accordance with the plan and specifications prepared by the engineering department of the DL&WRR. Further, the construction for this right-of-way for plaintiffs’ predecessors was to be done under the direction and supervision of the chief engineer of the DL&WRR or his designee. The bridge was then constructed, and it remained the only means of access to Dalton from the Fuller estate. Additionally, it was one of two ways available to access the Fuller estate.

Following the construction of the bridge, DL&WRR and its successors and assigns inspected, maintained, and repaired the bridge pursuant to the conveyance/agreement between both plaintiffs’ and defendants’ predecessors. Through various phases of corporate restructuring, the DL&WRR ultimately became Delaware and Hudson Railway Company (D&H), which was an indirect subsidiary of the Canadian Pacific Railway Company. D&H is a Delaware corporation with its principal place of business in Clifton Park, NY. It was during the 1990s when events transpired to create a forum for the dispute currently between the parties to this case.

During the early part of the 1990s, it was found that the bridge had deteriorated to the point that it was hazardous. Events following the then-recognized deteriorated state of the bridge define the arguments set forth by each of the parties on defendants’ motion for summary judgment currently before this court.

In the complaint, the plaintiffs argue that the bridge at issue was essential to the bargain between plaintiffs and defendants, and it was “the only legal consideration” the plaintiffs received in exchange for granting the parcels to the defendants. Complaint, ¶21. Plaintiffs further claimed that the deed contained a release of statutory obligations for the DL&WRR to provide crossings, which in the deed is stated:

“It is particularly covenanted and agreed, by and between the parties hereto that the said parties of the first part hereby release and forever discharge the said railroad company of and from all other claims for damages on account of the vacation of public road on the Thomas Smith farm leading to the estate of E.L. Fuller lands, which said public road crosses, the proposed new line of the D.L.&W.R.R. Company at or about station 204.” Complaint, ¶22, citing Fuller deed.

The plaintiffs argue this provision references all crossings other than the bridge at issue, (emphasis supplied) They also argue that DL&WRR fully funded and constructed the bridge, and affirmed the duty to maintain and repair the bridge, and if necessary, replace it. The plaintiffs classify this agreement as a covenant running with the land rather than a contractual agreement.

Plaintiffs’ version of the facts provides that after construction of the bridge, DL&WRR and its successors and assigns regularly inspected, maintained and repaired the bridge according to the alleged covenant. However, in 1990, plaintiffs allege that defendants inspected but failed to maintain or repair the bridge. Complaint, ¶26. The plaintiffs argue that the defendants are successors and assigns of DL&WRR in the capacity of running the business on the main line in Lackawanna County. As such, defendants had a legal responsibility regarding upkeep to the bridge. Complaint, ¶ 27. Plaintiffs claim they have made repeated requests for defendants to inspect, maintain, and repair the bridge. Complaint, ¶28.

The plaintiffs claim that in February of 1995, representatives of the defendants, with personal identities unknown to the plaintiffs, demolished the bridge according to the defendants’ direction. Complaint, ¶29. The demolished bridge was apparently replaced with access ramps descending from Fuller Road down to the main line right-of-way elevation, and a makeshift crossing at Lack level. Complaint, ¶29.

In this motion for summary judgment, defendants argue that the deed is void of language that creates a requirement for the defendants or their successors to maintain or replace the bridge. Defendants argue that although a bridge was provided to the plaintiffs, the deed includes no language requiring a future and ongoing responsibility to maintain the bridge. Defendants argue that D&H never maintained the bridge. In fact, they allege that the Fullers themselves had performed routine maintenance in that they plowed and sanded the bridge in winter months. In addressing the issue of bridge inspection, it becomes clear the parties differ on a significant issue of fact that would preclude this court from granting the defendants’ motion for summary judgment.

Defendants claim that D&H periodically inspected the structural soundness of the bridge. During the September 2,1992 inspection of the bridge, D&H observed “tipping, cracking and spalling.” Defendants’ summary judgment motion at ¶17. The bridge inspector noted the bridge was in an advanced state of decay and presented a real safety risk. Defendants allege they communicated the bridge hazard to the Borough of Dalton on November 10,1993. Receiving no reply from the borough, D&H notified the borough in December of 1993 that it would close the bridge in January, 1994. In March 1994, apparently due to safety risks to both the public and railroad operations beneath the bridge, D&H placed barricades on either side of the bridge so that no traffic could cross it.

D&H performed another bridge inspection in June, 1994, where it was detennined by the inspectors as being in “an advanced state of deterioration.” The inspector recommended that the bridge be demolished because it had apparently “deteriorated beyond rehabilitation.” In February, 1995, contractors hired by D&H removed the bridge.

LEGAL ARGUMENT

Before the court is defendants’ motion for summary judgment. Rule 1035 of the Pennsylvania Rules of Civil Procedure provides the standard for summary judgment. Rule 1035.2 states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

“A material fact is one that directly affects the outcome of the case.” Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). “[T]he trial court will determine the question of whether there is a genuine issue as to any material fact.” Hibbs v. Chester-Upland School District, 146 Pa.Commw. 556, 564, 606 A.2d 629, 633 (1992) citing Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). “On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists.” Id. “As with all summary judgment cases, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party as to the existence of a triable issue.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998).

In the case at bar and following the dictates of McCarthy, id., we are compelled to construe the disputed agreement as a covenant running with the land for purposes of this motion, as this resolves all doubts against the moving party defendants and in favor of the non-moving party per the dictates of Pa.R.C.P. 1035.

Defendants’ argument supporting their motion for summary judgment relies heavily upon the expiry of the applicable statute of limitations, which defendants argue, bars the plaintiffs’ claims. The defendants cite case law explaining when the statute of limitations period begins running. “The statute of limitations begins to run as soon as the right to institute and maintain a suit arises.” Defendants’ memorandum of law in support of the motion for summary judgment, p. 7, citing Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. Super. 2002).

The issue of disagreement between the parties is the classification of the agreement for the bridge, and therefore, which statute of limitations period applies to the action. Defendants argue that the agreement is governed entirely by contract law; therefore a four-year statute of limitations period applies. Defendants’ memorandum of law in support of motion for summary judgment, p. 7, citing 42 Pa.C.S. §5525. Defendants argue the breach occurred when the bridge fell into a state of disrepair because of defendants’ failure to maintain the bridge. Defendants’ memorandum of law in support of motion for summary judgment, p. 7. As a result, defendants’ calculation of the statute of limitations period began in March of 1994, when plaintiffs’ attorney contacted defendants demanding that defendants perform bridge repair. Id. As a result, defendants argue the plaintiffs should have filed their complaint no later than March 1998. The plaintiffs filed the praecipe for summons in civil action on January 6, 1999. Therefore, defendants argue, the complaint was filed after the statute of limitations period had run, and as a result, plaintiffs’ claim is barred.

Plaintiffs, in contrast, insist the agreement between the parties is classified as a covenant running with the land. As such, the applicable statute of limitations for the plaintiffs’ claim is one of the following: (1) 21 years for an easement covenant in a deed, or (2) five years for actions at law for specific performance of a buyer’s ongoing covenant (even if such covenant does not run with the land) if it is consideration for its realty acquisition. Plaintiffs’ brief in opposition to defendants’ motion for summary judgment, p. 33.

Construing these contrasting arguments in the light most favorable for the non-movant plaintiffs herein, this court has determined that a genuine issue of material fact exists as to when the breach can actually be determined to have occurred: at the time the bridge fell into a state of disrepair, or at the time the bridge was actually removed. This disputed factual issue precludes the granting of defendants’ motion for summary judgment under Pa.R.C.P. 1035.2. An appropriate order therefore follows:

ORDER

And now, October 13, 2006, defendants’ motion for summary judgment is hereby denied and dismissed.