author: SPRECHER, «/.,

text:
    FMRR Development v. Birdsboro Municipal Authority

      C.P. of Berks County,
    No. 13-16623

      Stephen G. Welz, for plaintiffs.

      Matthew M. Setley, for defendant.
    Dec. 10, 2015
   SPRECHER, «/.,

— Defendant appeals the verdict docketed on October 7, 2014, which found in favor of plaintiffs and against defendant. This opinion is filed pursuant to Pa. R.A.P. 1925 and supplements the opinion which accompanied the verdict.

FACTS

Plaintiff, FMMR Development, and plaintiff, Francis X. McLaughlin, filed lawsuits against defendant, Birdsboro Municipal Authority. Plaintiff, Francis A. McLaughlin, is a fifty percent shareholder of plaintiff, FMMR Development. The issues and evidence are the same in both cases, and they were consolidated.

Plaintiffs own residential apartment buildings in the Borough of Birdsboro. The properties are connected to the water supply and sanitary sewer system of defendant, Birdsboro Municipal Authority. These properties have twenty or twenty-one residential apartments. Defendant installed single water meters in each apartment complex, but assigned approximately twenty Equivalent Dwelling Units (EDUs) to each residential apartment building.

Defendant’s tiered metered rate schedule is comprised of three components:

1. Ready-to-serve charge — $15.68 per consumer unit per quarter
2. EDU charge — $3.50 per 1,000 gallons of usage for a domestic establishment
3. Consumption charge — $4,992 per 1,000 gallons up to “quarterly average” of 15,000 gallons per quarter. The consumption rate for water consumed in excess of the quarterly average increases to $7,462 per 1,000 gallons up to a level twice the quarterly average.

The metered rate schedule for sanitary sewer services includes:

1. Ready-to-serve charge — $21.62 per consumer unit per quarter
2. EDU charge for sewer services — $6.8822 per 1,000 gallons of usage for a domestic establishment
3. Consumption charge — $7,215 per 1,000 gallons up to quarterly average of 15,000 gallons per quarter.

Despite the fact that defendant has assigned 20 EDUs to the apartment complexes and has consistently imposed a ready-to-serve charge on twenty EDUs and twenty EDU charges on each apartment complex, it has imposed a single EDU consumption rate on plaintiffs in order to apply the higher charges for consumption in excess of the quarterly usage.

Mr. McLaughlin called the Borough Manager, Aaron Durso about the consumption charges. Mr. Durso helped him to file formal complaints for the two apartment complexes. Mr. McLaughlin received a letter from defendant’s solicitor stating that the bills were correct. Mr. McLaughlin also went to three water authority meetings and did not obtain any relief.

Mr. McLaughlin requested that individual meters be installed at his own expense in each apartment. Defendant refused to allow this. Neither apartment complex ever exceeded 300,000 gallons of usage in one quarter. With 20 EDUs, the threshold for the higher consumption rate is exceeded on the 5th day of every billing cycle.

Keith Hill, a licensed professional engineer and consultant, was qualified as an expert in the field of rate schedules establishment and the analysis of rate schedules. He testified that the purpose of defendant’s tiered rate schedule is to promote the conservation of water, a natural resource.

Mr. Durso testified that Mr. McLaughlin can separately meter his apartments, but they would be his sole responsibility as the property owner. The consumption fees, however, would still be based on a single meter rate.

Douglas Rauch, Esquire, defendant’s solicitor, testified that defendant has approximately 2,200 customers. Of those customers, 79 properties are multi-family residential properties, and they are all treated the same in the billing practices. The rates encourage conservation and favor the single-family homeowners. Defendant’s board of directors believed that it was fair to charge more to people who put a greater burden on the system and the treatment plant by requiring more treatment. Defendant’s total revenue would decrease if it would be forced to meter each individual apartment.

Based on this evidence, this court entered the verdict which is the subject of this appeal.

ISSUES

Defendant raises the following issues in his concise statement of errors complained of on appeal.

1. Whether this court erred in denying defendant’s post-trial motions.

2. Whether this court erred in entering an amended verdict in favor of plaintiffs.

3. Whether this court erred in finding that defendant’s rates are not established to promote conservation.

4. Whether this court erred in finding that defendant’s rates are not established to promote conservation, where plaintiffs failed to present testimony and/or evidence with respect to said finding.

5. Whether this court erred in finding that defendant’s rates are discriminatory.

6. Whether this court erred in finding that defendant’s rates are unreasonable.

7. Whether this court erred in finding that defendant’s rates are arbitrary.

8. Whether this court erred in failing to find and/ or conclude as a matter of law that the establishment of defendant’s rate structure was arbitrary in nature, in order to upset the same, under Pennsylvania law.

9. Whether this court erred in finding that defendant does not have any regulation concerning the application of consumption charges for multi-unit buildings with single meters.

10. Whether this court erred in finding that defendant’s rates are not reasonably proportionate to the service rendered or readily available for use on owners of multi-unit residences.

11. Whether this court erred in finding/concluding as a matter of law that defendant must use the same rate calculation for all residential households for a rate to be reasonable under Pennsylvania law.

12. Whether this court erred in finding/concluding as a matter of law that conservation of water must be essential, if not the only consideration to be evaluated, in the determination of whether defendant’s rates are reasonable.

13. Whether this court erred in finding/concluding as a matter of law that the failure to allow individual metering of a multi-unit facility is de facto unreasonable, under Pennsylvania law.

14. Whether this court erred in failing to consider other evidence presented relating to the reasonableness of the rates, other than simply conservation, in forming its findings/conclusions of law with respect to the reasonableness of the rates.

15. Whether this court erred, as a matter of law, in concluding that defendant’s rates are discriminatory.

16. Whether this court erred, as a matter of law, in concluding that defendant’s rates are unreasonable, as related to services provided.

17. Whether this court erred, as a matter of law, in concluding that defendant’s rates are unreasonable.

18. Whether this court erred, as a matter of law, in concluding that defendant’s rates are arbitrary.

19. Whether this court erred, as a matter of law, in overturning defendant’s rate structure.

20. Whether this court erred, as a matter of law, in relating this court’s conclusion with respect to fairness to the legally defined concept of reasonableness, as applies in like cases, under Pennsylvania law.

21. Whether this court erred, in supplementing its conclusion on what the rate should be for defendant, in the place of the board of the defendant, as appointed through the democratic process.

22. Whether this court erred in only allowing testimony in the form of a preliminary injunction hearing without counsel for the parties knowing that the same would be used as the evidence on the trial on the merits with respect to the same.

23. Whether this court erred in ordering relief, in the form of its amended verdict, not specifically requested by plaintiffs.

24. Whether this court erred in ordering relief, in the form of its amended verdict, beyond the scope of its authority.

25. Whether this court erred in ordering relief, in the form of its amended verdict, requiring the parties to form an agreement, to the benefit of plaintiffs.

26. Whether this court erred, as a matter of law, in issuing the amended verdict.

DISCUSSION

This court shall address the issues which have not been addressed in its prior opinion. Many of the issues are duplicative or have already been addressed.

Defendant submits in its fourth contention that this court erred in finding that defendant’s rates are not established to promote conservation because plaintiffs failed to present testimony and/or evidence with respect to this finding. This issue is without merit.

Defendant mischaracterizes this court’s finding. Defendant’s rates promote conservation when they are applied correctly to each EDU; however, in the case sub judice, they are not applied correctly to multi-family dwellings. Two parts of defendant’s tiered metered rate schedule, the ready-to serve charge and the EDU charge, are correctly billed. There are twenty-one charges for each individual apartment. The problem lies with the consumption charge. It is not applied to each individual unit, but to the collective whole. It cannot promote conservation because there is no reward for conserving. It is impossible for twenty-one units to use the same amount of water as one individual unit. Therefore, penalties accrue within the first week. The tenants and plaintiffs are penalized for living in and owning apartments. If those same tenants rented entire homes, they would pay less for their water than they do renting an apartment.

It is admirable that defendant wants to give a break to the small property owner, but it has a duty to act fairly on all customers’ behalf. On the one hand, defendant recognizes that the apartment dwellers live separately by charging each apartment unit a ready-to-serve charge and the EDU charge. Thus, it collects forty-two fees from each complex. On the other hand, those same apartments are treated as one unit for consumption charges in order to collect higher rates for usage. Thus, defendant is not even consistent in the application of the schedule to these customers. Conservation of water cannot be a goal if it can never be achieved by these consumers.

Defendant’s eleventh assignment of error is that this court erred in finding or concluding as a matter of law that defendant must use the same rate calculation for all residential households for a rate to be reasonable under Pennsylvania law. This complaint is meritless.

This court did not find that all residential households had to use the same rate calculation. Group homes, nursing homes, and college dormitories, for example, are residential, but by their nature, must consume more water than single family dwellings and should be subject to different rates. This court found that there is no difference between a single family who rents a house and a single family who rents an apartment; if anything, the renters of a house may consume more water because there may be more family members living in the house and more uses for water. This court found that the rates were arbitrarily applied to single families in apartments. Moreover, the defendant did not apply those rates consistently in billing the three charges.

Defendant’s nineteenth assertion is that this court erred as a matter of law in overturning defendant’s rate schedule. This contention is without merit. This court did not overturn the rate schedule; it did not do anything to the rate schedule. This court found that defendant did not apply its rate schedule evenly to plaintiffs and those similarly situated. It ordered defendant to charge the consumption rates to single families at the single family rate and in accordance with the other two prongs of the three-pronged bill it generates.

Defendant’s twenty-second complaint is that this court erred in allowing testimony in the form of a preliminary injunction hearing without counsel for the parties knowing that the same would be used as the evidence on the trial on the merits with respect to the same. This contention is frivolous.

The parties acknowledged at the hearing on March 18, 2014, that the testimony for the trial would be similar to that as was presented for the injunction. In the interest of judicial economy, this court determined that it would incorporate the testimony for the preliminary injunction into the trial testimony. The trial was scheduled for April 15, 2014. By stipulation dated April 14, 2014, the parties agreed that they would present no additional testimony at the hearing scheduled for April 15, 2014 and that they would submit memoranda of law in support of their positions by May 21, 2014. Thus, the parties determined not to present additional evidence; they were not blindsided by the course that this case took. Parties may, by stipulation, resolve questions of fact or limit the issues, and if the stipulations do not affect the jurisdiction of the court or due order of the business and convenience of the court, they become the law of the case. Moorhead v. Crozer Chester Medical Center, 564 Pa. 156, 765 A.2d 786, (2001).

Defendant’s twenty-fifth contention is that this court erred in ordering the parties to form an agreement to plaintiffs’ benefit. This is a frippery. This court ordered the parties to come to an agreement, if they could. If they were unable to agree on a stipulated order, this court would then hear argument and make a decision on those unresolved issues. The purpose of a stipulated order was to benefit both parties. Only defendant knew the costs of the meters and their installation. Only the parties knew the amount of money that was escrowed. The parties had the figures and the rates to determine the payments. For these reason, this court suggested that the parties submit a stipulation of the costs and fees.

The remaining issues have already been addressed in either this opinion or the opinion which accompanied the verdict. This court submits that its verdict should be affirmed and the appeal denied.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Olinger v. Zikeli

      C.P. of Lawrence County,
    No. 10561 of 2014

      Lawrence M. Kelly, for plaintiff.

      Lauren M. Despot, for defendants.
    Dec. 23, 2014
   COX, J.,

— Before the court for disposition are the preliminary objections filed on behalf of the defendants Robert Zikeli and GAI Consultants, which argue that the plaintiff’s amended complaint fails to separate the different claims into distinct counts, the claims for direct negligence, negligent entrustment and negligent hiring are legally insufficient and the amended complaint lacks specificity as it states certain sections of the Motor Vehicle Code which the defendants allegedly violated, but fails to aver any facts to establish those violations. Moreover, the amended complaint lacks factual averments to set forth the claims that the plaintiff is attempting to assert.

The amended complaint avers the following facts: defendant Robert Zikeli (hereinafter “defendant Zikeli”) was employed by the defendant GAI Consultants (hereinafter “defendant GAI”), which is a Florida based corporation. On February 21, 2013, the plaintiff Renee Olinger was operating a 2002 Buick Regal automobile in a westerly direction on Butler Avenue, New Castle, Lawrence County, Pennsylvania. At the same time, defendant Zikeli was operating a 2011 Ford LGT FI50 motor vehicle, owned by defendant GAI, in an easterly direction on Butler Avenue. Defendant Zikeli made a left turn into the westbound lane of Butler Avenue and collided with the vehicle being operated by the plaintiff, who suffered injuries as a result of the collision.

On June 3,2014, the plaintiff filed her complaint against the defendants, which contained two counts. Count I asserted claims of negligence against defendant Zikeli and what appeared to be claims of direct negligence, negligent entrustment and negligent hiring against defendant GAL Count II averred a claim for property damage against both defendants. The defendants filed preliminary objections to complaint on July 28, 2014, arguing that the complaint violated Pa.R.C.P. No. 1020 for failure to allege each cause of action in a separate count, plaintiff’s claims for negligent entrustment and direct negligence against defendant GAI were legally insufficient, the complaint lacked specificity, the complaint contained a litany of legal conclusions without being supported by factual averments and the plaintiff’s claim for property damage was legally insufficient and lacked specificity. In response, the plaintiff filed an amended complaint on August 6, 2014, which contained three separate counts. In Count I, the plaintiff averred a claim of negligence against defendant Zikeli. Count II purports to assert a claim of negligence against defendant GAL The plaintiff also averred a claim for property damage against both defendants in Count III. The defendants have now filed the current preliminary objections to amended complaint on August 26, 2014. The court held oral argument concerning the current preliminary objections on October 27, 2014, with both parties appearing through counsel.

The defendant’s first preliminary objection contends that Count II of the plaintiff’s amended complaint violates Pa.R.C.P. No. 1020 as it contains claims for respondeat superior, direct negligence, negligent entrustment and negligent hiring in one count.

Pa.R.C.P. No. 1020(a) states, “The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.” Each claim must be averred in a self-sufficient separate count containing averments of facts pertaining to the particular claim and relief sought. Commonwealth v. Parisi, 873 A.2d 3, 9 (Pa.Cmwlth. 2005) (citing General State Auth. V. Lawrie and Green, 24 Pa.Cmwlth. 407, 356 A.2d 851 (1976); Allentown Ahead Fund, Inc. v. Kraynick, 65 Pa.D.&C.2d 611 (1974)). This Rule applies only in circumstances where multiple causes of action are stated. Seruga v. Tuskes, 21 Pa.D.&C.3d 111, 113 (Com. Pl. Northampton 1981). However, that is not necessary when there are several claims concerning the same cause of action. Philadelphia v. Konopacki, 2 Pa.D.&C.3d 535, 539-540 (Com. Pl. Philadelphia 1975).

In the current case, Count II of the plaintiff’s amended complaint contains a heading that identifies it as a negligence claim against defendant GAL In that Count, there are allegations that appear to aver several different claims. Paragraphs 17 and 18. A. assert that defendant Zikeli was acting as an agent, servant and/or representative of defendant GAI and was acting within the scope of authority provided to him from defendant GAI at the time the accident occurred, which tends to demonstrate that the plaintiff is attempting to recover under the legal doctrine of respondeat superior. Paragraphs 18. B., D., E. and F. claim that defendant GAI was directly negligent by failing to properly train, instruct or supervise defendant Zikeli, failing to inspect, maintain and repair the vehicle, failing to properly investigate the qualifications and driving record of the defendant Zikeli and failing to properly update and provide educational opportunities to their employee to ensure safe operation of the vehicle. The plaintiff also has averments of negligent entrustment in Paragraph 18. C. “Negligently entrusting the above-described vehicle to defendant, Robert Zikeli, when it was known or should have been known that he was an unsafe and careless driver. Additionally, the plaintiff seems to indicate a possible claim for negligent hiring in Paragraph 18. E. for defendant GAI’s failure to properly investigate the qualifications and driving record of defendant Zikeli. It is apparent that the Plaintiff has averred several causes of action in Count II, which should have been set forth in separate Counts in accordance with Pa.R.C.P. No. 1020(a). It is important to note that the court is required to read the complaint as a whole, but that does not mean that the court and the defendants should be required to attempt to separate, decipher and piece together the plaintiff’s multiple claims that are averred in one count. Therefore, the defendants’ first preliminary objection is sustained and the plaintiff is granted leave to amend her amended complaint to aver each claim and supporting averments of fact in a separate count.

The defendants also assert that the plaintiff’s claims for direct negligence, negligent entrustment and negligent hiring claims against defendant GAI are legally insufficient.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008)(citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007)(citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008)(citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (2005)(citations omitted). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002)(citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987)). “A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of the pleading.’” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005)(quoting Black’s Law Dictionary 299 (6th ed. 1991)). The Court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id.

In order to establish a claim for negligence, a plaintiff must prove the following elements: “(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.” Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1126 (Pa. Super. 2004) (citing Burman v. Golay & Co., Inc., 420 Pa. Super. 209, 616 A.2d 657 (1992)). In a negligence action, the plaintiff must prove that the defendant owed the plaintiff a duty of care and that duty was breached. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 655 (Pa. Super. 2002) (citing Ney v. Axelrod, 723 A.2d 719, 721 (Pa. Super. 1999)). In determining if a duty existed, the court must weigh the following factors: “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3)

the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the [over all] public interest in the proposed solution.” Id. (quoting Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000)). The court must also examine whether the defendant has an obligation for the benefit of that particular plaintiff and if that does not exist or had not been breached, there can be no cause of action for negligence. Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003)(quoting J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 584 (Pa. Super. 1997)). Moreover, [t]he standard by which the conduct of a person in a particular situation is judged in determining whether he is negligent, is the care which an ordinarily prudent person would exercise under the same or similar circumstances.” D.M. Bare Paper Co. v. Steward, 205 Pa. Super. 286, 290, 208 A.2d 890, 892 (1965)(citing Maternia v. Pa. Railroad Co., 358 Pa. 149, 56 A.2d 233 (1948)). Once it is established that the defendant breached a duty of care he or she owed to the plaintiff, it must be demonstrated that there is some reasonable connection between the act of the defendant and the injury to the plaintiff. Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 274, 505 A.2d 973, 978-979 (1985)(citing Prosser and Keeton, Torts §41, at 262 (5th ed. 1984)).

In the current matter, the plaintiff asserts that the negligence of defendant Zikeli can be imputed to defendant GAI through the doctrine of respondeat superior. In her amended complaint, the plaintiff has averred that defendant Zikeli’s vehicle collided with the plaintiff’s vehicle after he attempted to perform a left turn into the westbound lane of Butler Avenue where the plaintiff was traveling. The plaintiff asserts that she suffered serious injuries due to that collision. There are adequate allegations in the amended complaint to aver a legally sufficient claim for direct negligence as all of the essential elements for negligence have been pleaded. First, the plaintiff alleged that defendant Zikeli breached the duty of care he owed to the plaintiff by operating his vehicle at dangerous speed, failing to properly control his vehicle, operating his vehicle in a direction toward the plaintiff’s vehicle without the exercise of reasonable diligence, failing to properly maintain the vehicle, failing to properly yield and driving on the wrong side of the roadway. In addition, the plaintiff asserts that defendant Zikeli is negligent per se as he violated ten sections of the Pennsylvania Motor Vehicle Code. Next, the plaintiff contends that due to those breaches of the standard of care owed by defendant Zikeli to the plaintiff, she suffered serious injuries, which included “A. Injuries to the bones, muscles, tissues and ligaments of the back, shoulder, and neck; B. Internal injuries; C. Shock and injury to the nerves and nervous system; and D. Other severe and serious injuries.” The plaintiff has also averred that defendant Zikeli was “the agent, servant and/or representative” of defendant GAI while operating a vehicle owned by defendant GAL Hence, there is sufficient averments, if proven at trial, to impute a claim of direct negligence arising out of the actions of defendant Zikeli to defendant GAI through the doctrine of respondeat superior.

In addition, the plaintiff has averred a sufficient claim of direct negligence against defendant GAI in Paragraphs 18. B., D., E. and F. In those paragraphs, the plaintiff alleges that defendant GAI is directly negligent by failing to properly train, instruct and supervise defendant Zikeli, failing to properly inspect, maintain and repair the vehicle, failing to properly investigate the qualifications and driving record of defendant Zikeli and failing to properly update and provide educational opportunities to their employees to ensure safe operation of the vehicle. These averments are sufficient to establish a claim for direct negligence against defendant GAI. Therefore, the plaintiff has averred a legally sufficient claim for direct negligence against defendant GAI.

The defendants also assert that the plaintiff also set forth a claim for negligent entrustment. Pursuant to a negligent entrustment theory of recovery, “[i]it is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” Phillips v. Lock, 86 A.3d 906, 913 (Pa. Super. 2014)(quoting Christiansen v. Silfies, 446 Pa. Super. 464, 667 A.2d 396, 400 (1995); Restatement (Second) of Torts §308). This liability is imposed based upon the actions of the “entrustor” and is not derivative or imputed from the actions of the “entrustee”. Christiansen v. Silfies, 446 Pa. Super. 464, 473, 667 A.2d 396, 400 (Pa. Super. 1995) (citing Johnson v. Johnson, 410 Pa. Super. 631, 600 A.2d 970 n.5 (1991)). It must be noted that the “entrustee” must be held liable prior to negligent entrustment to attach to the “entrustor”. Id. (citing Erie Ins. Exchange v. Transamerica Ins. Co., 352 Pa. Super. 78, 507 A.2d 389 (1986)).

In Abramowitz v. Pipher, 82 Pa.D.&C.4th 212 (Com. Pl. Monroe 2006), the trial court overruled the defendant’s preliminary objection in the nature of demurrer as the plaintiff pleaded sufficient facts to support a claim for negligent entrustment. In that case, the plaintiff averred facts stating that the decedent was aware that he entrusted his vehicle to the driver knowing that the decedent would consume pain medications that would affect her ability to operate the vehicle by stating that the decedent was a chronic user of pain medicine. Moreover, the complaint contained general averments that the defendant Calidad Auto Tech knew or should have known of the decedent’s use of pain medication. The court ruled that it was premature to sustain a demurrer on that issue as it was required to accept the well pleaded facts as true and those allegations, if proven, would support a cause of action under the legal theory of negligent entrustment. Id., 82 Pa.D.&C.4th at 219-220.

In the case sub judice, the plaintiff has averred in her amended complaint that the defendant GAI negligently entrusted the Ford FI50 to the defendant “when it was known or should have been known that he was an unsafe and careless driver”. However, the amended complaint does not specify what characteristic concerning defendant Zikeli’s driving was known or should have been known by defendant GAI that would have prevented defendant GAI from allowing defendant Zikeli to operate the vehicle. This is distinguishable from Abramowitz as the plaintiff in that case clearly set forth that the defendants were negligent in permitting the decedent to operate the vehicle as it was known or should have been known that she was a chronic user of pain medications making operation of the vehicle unsafe. In the current matter, the amended complaint lacks any averment to indicate why defendant Zikeli was unfit to operate the vehicle when it was entrusted to him by defendant GAL The plaintiff’s claim for negligent entrustment is legally insufficient for failing to properly identify why defendant Zikeli was unfit to operate the vehicle. Therefore, the court grants the defendant’s second preliminary objection in the nature of a demurrer concerning the claim for negligent entrustment contained in Count II of the amended complaint, which includes Paragraph 18. C. The plaintiff is granted leave to amend her amended complaint regarding the claim for negligent entrustment in Count II of the amended complaint.

The tort of negligent hiring was created in Restatement (Second) of Torts §317, which states as follows:

Duty of Master to Control Conduct of Servant
A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his servant, and
(ii) knows or should know of the necessity and opportunity for exercising such control. Hutchinson by Hutchinson v. Luddy, 453 Pa. Super. 420, 423, 683 A.2d 1254, 1255 (1996) (reversed on other grounds).

“[A]n action for negligent hiring provides a remedy to injured third parties who ‘would otherwise be foreclosed from recovery under the master-servant doctrine because the wrongful acts of employees in these cases are likely to be outside the scope of employment or not in furtherance of the master’s business.” Heller v. Patwil Homes, Inc., 713 A.2d 105, 107 (Pa. Super. 1998) (citing Welsh Mfg., Div. of Textron v. Pinkerton’s, 474 A.2d 436, 439 (R.I. 1984)). The plaintiff must demonstrate that the defendant knew or should have known that a foreseeable harm would eventually befall the victim. Brezenski v. World Truck Transfer. Inc., 755 A.2d 36, 44 (Pa. Super. 2000). “To fasten liability upon an employer under Section 317, it must be shown that the employer knew or, in the exercise of ordinary care, should have known of the necessity for exercising control of his employee.” Heller, 713 A.2d at 107-108 (citing Dempsey v. Walso Bureau Inc., 431 Pal 562, 246 A.2d 418 (1968)). The two inquiries central to deciding if a claim for negligent hiring is legally sufficient are as follows: 1. What was the employee’s conduct prior to the date of incident and was it such that it demonstrated a propensity to act in the manner that caused the plaintiff’s injuries? and 2. Did the employer know or should have known of the employee’s prior conduct? Id.

In the current case, the plaintiff has failed to aver any actions taken by defendant Zikeli outside of the scope of his employment that defendant GAI should have prevented defendant Zikeli from performing to avoid intentionally harming others nor is there any averments establishing that he created an unreasonable risk of harm to other individuals. There are no allegations in the amended complaint that defendant Zikeli intentionally caused harm to the plaintiff, the amended complaint states that he was operating the motor vehicle and unsafely made a left turn, which led to his vehicle colliding with the plaintiff’s vehicle. While it is apparent that the amended complaint avers that defendant Zikeli was operating a vehicle owned by defendant GAI, there is no indication that he was utilizing that vehicle outside of the scope of his employment as is required to support a claim for negligent hiring. This theory of recovery is available for certain claims that are not recoverable under the typical means of imposing vicarious liability upon a master for the acts of his or her servant. Thus, the defendants’ preliminary objection in the nature of demurrer concerning the claim for negligent hiring is sustained and that claim is dismissed. The plaintiff is granted leave to amend her amended complaint.

The defendant also argues that the amended complaint lacks specificity as it states certain sections of the Motor Vehicle Code that the defendants violated, but fails to aver any facts to establish those violations. Moreover, the amended complaint lacks factual averments to set forth the claims that the plaintiff is attempting to assert.

The specificity of a pleading is governed by Pa. R.C.P. No. 1019, which states “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com’n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008) (quoting Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232, 1235 (1992)). Additionally, the plaintiff must summarize the facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005) (citing Department of Transportation v. Shipley Humble Oil Co., 29 Pa. Cmwlth. 171 370 A.2d 438 (1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984)(citing Sokoloff v. Strick, 404 Pa. 343, 172 A.2d 302(1961); Hornsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877 (1914)). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L. B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. Pl. Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L. N. 54).

In Connor v. Allegheny General Hospital, 501 Pa. 306, 311, 461 A.2d 600, 603 fn. 3 (1983) (citing Arner v. Sokol, 373 Pa. 587, 592-593, 96 A.2d 854, 856 (1953); King v. Brillhart, 271 Pa. 301, 114 A. 515, 516 (1921)), the court determined that an averment stating, “otherwise fail[ed] to use due care and caution under the circumstances,” lacked specificity and the defendant could have filed a motion to strike off that statement, but chose not to do so. However, a complaint is sufficiently specific if the whole complaint contains material facts which set forth a cause of action. Lipinsky v. Graham, 88 Pa. D.&C. 156, 158 (Pa. Com. Pl. Mercer 1954). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L. B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. Pl. Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L. N. 54).

The defendants assert that the plaintiffs amended complaint lacks specificity concerning Paragraphs 13. A, E., G. through J. and N. through D., and 18, which state as follows:

13. The defendant, Robert Zikeli, was negligent with regard to the above-described collision by the following acts or omissions:
A. In operating the vehicle at a high and dangerous speed under the circumstances;
E. In failing to maintain the vehicle in a proper mechanical condition;
G. In failing to properly inspect the vehicle to determine any mechanical defects;
H. In that the driver was not fit nor was he in proper physical condition to drive the vehicle;
I. In driving on the wrong side of the highway;
J. In crossing the divider line which marked the center of the road;
N. In failing to utilize a turn signal; and
O. In violating the following statutes pertaining to the operation of motor vehicles on public thoroughfares under the circumstances:
a. 75 Pa.C.S.A §3301
b. 75 Pa.C.S.A §3303
c. 75 Pa.C.S.A. §3309
d. 75 Pa.C.S.A. §3311
e. 75 Pa.C.S.A. §3331
f. 75 Pa.C.S.A. §3334
g. 75 Pa.C.S.A. §3361
h. 75 Pa.C.S.A. §3362
i. 75 Pa.C.S.A. §3714
j. 75 Pa.C.S.A. §3736.
18. The serious and permanent injuries suffered by plaintiff, Renee Olinger, are a direct and proximate result of the tortious conduct of the defendant, GAI Consultants, in the following acts or omissions:
B. Failure to properly train, instruct, educate and supervise defendant, Robert Zikeli, in the proper and safe operation of their motor vehicle;
C. Negligently entrusting the above-described vehicle to defendant, Robert Zikeli, when it was known or should have been known that he was an unsafe and careless driver;
D. Failure to properly inspect, maintain and repair its vehicles;
E. Failure to properly investigate the qualifications and driving record of the defendant, Robert Zikeli; and
F. Failure to properly update and provide educational opportunities to its agents, servants and/or employees so as to ensure the safe operation of the vehicles entrusted to their drivers.

Paragraphs 13. A., I., J. andN. do not lack specificity as they adequately explain the claims being asserted against the defendants. More specifically, those paragraphs set forth that defendant Zikeli was operating the vehicle at a high and dangerous speed, he was driving on the wrong side of the road, he crossed the divider line marking the center of the roadway and he did not utilize his turn signal. Those paragraphs are consistent with the claims being asserted in the other portions of the amended complaint and they aver that defendant Zikeli was operating his vehicle in a dangerous manner as he made a left turn into the plaintiffs lane of travel and struck her vehicle. It is apparent that those paragraphs are sufficient for the plaintiff to prepare a defense to the claims being asserted by the plaintiff. Thus, the defendants’ third preliminary objection for lack of specificity concerning Paragraphs 13. A., I., J. and N. are overruled.

Paragraphs 13. E., G. andH. assert that defendant Zikeli was negligent by failing to maintain the vehicle in proper mechanical condition, failing to properly inspect the vehicle to discover mechanical defects and the driver was not in the proper physical condition to drive the vehicle. These paragraphs inform the defendant that there may have been physical defects with the vehicle that allegedly attributed to the collision. Paragraph 13.H. also avers that there were physical attributes that made defendant Zikeli unfit to operate the vehicle. These paragraphs are sufficient to place defendant Zikeli on notice concerning the type of claims being asserted by the plaintiff, the areas where defendant Zikeli will need to prepare a defense and those allegations will be further clarified during the course of discovery. If the defendant believes that, after discovery, the plaintiff has failed to prove any of those averments, the defendant may file a motion for partial summary judgment. Moreover, those paragraphs are incapable of being amplified to produce new claims at a later time, unlike the allegations contained in Connor. Therefore, the court overrules the defendants’ third preliminary objection for lack of specificity concerning Paragraphs 13. E., G. and H.

The defendants also contend that Paragraphs 13. O. 1. through 10. lack specificity as they merely contain citations to sections of the Motor Vehicle Code without factual allegations. However, the court must examine the amended complaint as a whole to determine whether those sections lack specificity, which means the court must read those statutory citations in conjunction with the factual averments contained in the amended complaint. Paragraphs 13. O.I., 3., 5., 6., 7., 8., 9. and 10. do not lack specificity as those paragraphs are supported by factual allegations contained in the remainder of the amended complaint. As a result, the defendants’ third preliminary objection for lack of specificity concerning Paragraphs 13. O. 1., 3., 5., 6., 7., 8., 9. and 10. are overruled.l However, Paragraphs 13. O. 2. and 4. referencing 75 Pa.C.S.A. §3303 and 75 Pa.C.S.A. §3311 lack specificity as there are no factual averments to support a violation of those statutes. 75 Pa.C.S.A. §3303”govems the manner in which an operator of a motor vehicle may pass another vehicle traveling in the same direction. The allegations in the amended complaint state that plaintiff and defendant Zikeli, were traveling in opposite directions at the time of the collision. Hence, 75 Pa.C.S.A. §3303 would not apply to the current set of circumstances. Moreover, 75 Pa.C.S.A. §3311 does not apply to the current matter as there are no averments in the amended complaint demonstrating that the roadway in question was divided into two or more roadways by leaving intervening space, physical barrier or clearly indicated dividing section so constructed to impede vehicular traffic. As a result, those statutes are inapplicable as a means to impose negligence per se upon the defendants. The defendants’ third preliminary objection concerning lack of specificity for Paragraphs 13. O. 2. and 4. are sustained and those Paragraphs are stricken from the amended complaint.

The defendants also assert that Paragraphs 18. B. through F. lack specificity. Paragraph 18. B. provides the defendants with notice of its contention that defendant Zikeli was not properly trained, educated or supervised by defendant GAI relating to the operation of the motor vehicle he was driving when he collided with the plaintiff. Paragraph 18. C. was previously dismissed as legally insufficient and it also lacks specificity as it does not indicate what type of information was available to defendant GAI which demonstrates that defendant Zikeli was an unsafe or careless driver. That Paragraph does not adequately place the defendants on notice concerning the type of claim that is being asserted and it is capable of amplification at a later stage of these proceedings. Paragraph 18. D. asserts that defendant GAI failed to properly inspect, maintain and repair its vehicles. In addition, Paragraph 18. E. avers that defendant GAI failed to properly investigate the qualifications and driving record of defendant Zikeli. Paragraph 18. F. references the failure to update and provide educational opportunities to its employees to ensure safe operation of motor vehicles they are entrusted to operate. These Paragraphs provide sufficient notice of the claims that are being asserted by the plaintiff and supply the defendants with a basis to begin preparing a defense. Thus, the defendants’ third preliminary objection for lack of specificity concerning Paragraphs 18. B., and D. through F. are overruled; however, the court sustains the defendants’ preliminary objection for lack of specificity regarding Paragraph 18. C. and that Paragraph is stricken. The plaintiff is granted leave to amend her amended complaint.

For the reasons set forth in this opinion, the defendants’ preliminary objections are sustained in part and overruled in part. The court has sustained the defendants ’ preliminary objection for failure to adequately aver different claims in separate counts in accordance with Pa.R.C.P. 1020. The court also sustained the defendants’ second preliminary objection in the nature of demurrer concerning the claims for negligent entrustment and negligent hiring in Count II. In addition, the court sustains the defendants’ third preliminary objection concerning lack of specificity for Paragraphs 13. O. 2. and O. 4., and Paragraph 18. C. The remainder of the defendants’ preliminary objections are overruled. The plaintiff is granted leave to amend her amended complaint.

ORDER OF COURT

Now this 23rd day of December, 2014, this case was before the court on October 27, 2014, for oral argument on the preliminary objections to plaintiff’s amended complaint filed by the defendants, with both parties appearing through their counsel, the plaintiff, Renee Olinger, represented through counsel, Lawrence M. Kelly, Esquire, and the defendants, Robert Zikeli and GAI Consultants, represented through counsel, Lauren M. Despot, Esquire, and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order, and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the first preliminary objection for failure to separately enumerate the causes of action in the amended complaint is hereby sustained.

2. In accordance with the attached opinion, the second preliminary objection in the nature of a demurrer as to the causes of action for direct negligence, negligent entrustment and negligent hiring against GAI Consultants is sustained in part and overruled in part. The demurrer as to the causes of actions for negligence through respondeat superior and direct negligence is hereby overruled. The demurrer as to the causes of action of negligent entrustment and negligent hiring is hereby sustained and said causes of action are stricken from the amended complaint.

3. The third preliminary objection for lack of specificity regarding paragraphs 13 A, E, G, H, I, J, N, is hereby overruled. The preliminary objection for lack of specificity as to paragraph 13. O. Subparagraphs 1-10, is overruled as to subparagraphs 1,3,5,6,7,8,9 and 10. The preliminary objection to subparagraphs 2 and 4 is hereby sustained and said subparagraphs are stricken from the amended complaint. The preliminary objection for lack of specificity to paragraph 18 C is moot as said subparagraph was previously dismissed as legally insufficient. The preliminary objection for lack of specificity concerning paragraphs 18 B, D, E, F is hereby overruled.

4. For those paragraphs for which the preliminary objections have been sustained, those paragraphs are stricken from the amended complaint.

5. Plaintiff is granted thirty (30) days from the date of receipt of this order of court to file a second amended complaint.

6. The prothonotary shall serve a copy of this order of court and opinion upon counsel of record, Lawrence M. Kelly, Esquire, and Lauren M. Despot, Esquire.

      . It must be noted that citing a statute, if supported by other factual averments in the complaint, minimally meets the standard for specificity, but the preferred method for pleading the violation of a statute is include the applicable language from the statute and facts supporting a violation of the statute so that the defendants and the court do not need to review each statute.


text:
    Fleeger v. United Services Automobile Association

      C.P. of Lawrence County,
    No. 10736 of 2011

      Charles W Gar belt, for plaintiffs.

      Patricia A. Monahan, for defendant.

      Dec. 29, 2014
   COX, J.,

— Before the court for disposition is the motion for partial summary judgment filed on behalf of the plaintiffs David Fleeger and Marcia Fleeger, which argues that the defendant has failed to provide evidence that the damage caused to the plaintiffs’ property was caused by a domestic animal to place this case within the scope of the insurance policy’s domestic animal exclusion. The plaintiffs also contend that the doctrine of spoliation raises the presumption that the damage to the carpeting did not fall within the exclusionary language of the contract because the defendant had the opportunity to test the carpet to determine whether the feces were from a human or an animal. In response, the defendant filed a cross motion for partial summary judgment asserting that the plaintiffs’ misrepresentations have voided the insurance policy, no dispute of material fact exists to challenge the applicability of the insurance policy exclusion for damage caused by domestic animals, the plaintiffs’ bad faith claim is legally insufficient as they have failed to present a valid claim for breach of contract and, if the court concludes the breach of contract claim is sufficient to proceed to a jury, the bad faith claim should be dismissed as the defendant had a reasonable basis for denying the plaintiffs’ claim.

The plaintiffs are adult individuals who currently reside at 2860 La Ceresta Drive, Beavercreek, Ohio, and they own property located at 3207 Ellwood Road, New Castle, Lawrence County, Pennsylvania. The plaintiffs obtained an “all risk” insurance policy provided by the defendant that affords dwelling liability coverage in the amount of $315,000.00 and personal liability coverage in the sum of $300,000.00 for the property located at 3207 Ellwood Road. That policy is intended to cover all loss except for those instances specifically excluded under the terms of the policy. One of the exclusions contained in that policy is for damages caused by domestic animals. The plaintiffs leased that property to Alan Ross and Myrtle Ross, who vacated the premises in April of 2010. The plaintiffs discovered that Mr. and Mrs. Ross permitted a large dog to live inside the residence in violation of the lease. Upon entering the premises, Mr. Fleeger discovered that there was urine and feces on the floors, walls, stairs and heating ducts, which caused damage to the residence in the amount of $59,731.65. The plaintiffs notified the defendant about this damage and made a claim for damage caused by animals under the insurance policy they purchased. The plaintiffs later altered their claims to indicate the damage was due to vandalism. However, the defendant challenged the validity of that claim as it believed the damage was not covered under the insurance policy. On several occasions in dealing with the defendant, Mr. Fleeger stated that he believed that the dog caused the damage to the residence, but the dog may have been forced or allowed to do so as the tenants confined him in the residence while they were at work and they knew that damage was occurring.

The plaintiffs filed suit on June 3, 2011, asserting claims of breach of contract, bad faith and a violation of the Unfair Trade Practices and Consumer Protection Law (hereinafter “UTPCPL”) stating that the property was vandalized by Mr. and Mrs. Ross allowing their dog to urinate and defecate inside of the residence. The defendant filed its answer and new matter on October 3, 2011, and the plaintiffs responded with plaintiffs’ counter reply to defendant’s new matter on November 3, 2011. The plaintiffs then filed a petition for leave to amend, which was granted by President Judge Dominick Motto on November 21, 2011. The plaintiffs filed their amended complaint on November 21, 2011. On March 12, 2013, the defendant filed defendant’s motion for judgment on the pleadings on Pplaintiffs’ UTPCPL Claim, which contended that the claim based on a violation of the UTPCPL lacks merit as the residence in question was not purchased primarily for personal, family or household purposes. The plaintiffs then filed a second petition for leave to amend, in which they sought to clarify its existing claims. The court denied the motion for judgment on The pleadings stating that there was an issue of fact concerning the purpose for which the plaintiffs purchased the property and whether their belief in the scope of the coverage was reasonable and induced them into purchasing the insurance policy. The court granted the plaintiffs’ petition for leave to amend. The plaintiffs filed their second amended complaint, in which they asserted that the tenants vandalized the residence by permitting a large Doberman Pincer to live inside the home and by permitting urine and feces to be spread through the dwelling either by themselves or the dog. On December 10, 2013, the defendant filed its answer and new matter to plaintiffs’ second amended complaint. The plaintiffs filed a reply to new matter and, subsequently, a motion for partial summary judgment on January 8, 2014. The defendant responded with defendant’s reply to plaintiffs’ motion for summary judgment and defendant’s cross motion for partial summary judgment on February 7, 2014.

The plaintiffs contend that the defendant has failed to provide evidence that the damage caused to the plaintiffs’ property was caused by a domestic animal to place this case within the scope of the insurance policy’s domestic animal exclusion. The plaintiffs noted that the only evidence relied upon by the defendant is the testimony of Mr. Fleeger stating that he believed that the dog caused the damage by urinating and defecating in the dwelling, but that evidence is inadmissible as it is speculation.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). 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. The summary judgment rule exists to dispense with a trial of the case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038(1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury. Pa.R.C.P. No. 1035.2. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa.Super. 1999)).

The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Id. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Sincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). Conversely, the non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspapers, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140(1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000). Summary judgment is only proper when the uncontroverted allegations in the pleadings depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n., 555 Pa. 149, 153, 723 A.2d 174, 175 (1999). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

When an insurance policy is clear and unambiguous, it must be given its ordinary meaning of the terms used. Pennsylvania Manufacturers’ Ass’n Ins. Co. v. Aetna Cas. & Sur. Ins. Co., 426 Pa. 453, 457, 233 A.2d 548, 551 (1967) (quoting Topkis v. Rosenzweig, 333 Pa. 529, 5 A.2d 100 (1939)). “Where the policy language is unambiguous, a court cannot adopt a construction which conflicts with the clear meaning of the language.” Guardian Life Ins. Co. of America v. Zerance, 505 Pa. 345, 353, 479 A.2d 949, 953 (1984) (citing Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964)). When the language in the policy is clear and unambiguous, it must be enforced as written. Id. (citing Judge v. Prudential Insurance Co., 321 Pa. 454, 184 A. 543 (1936)). The court is required to read the policy provisions to avoid ambiguities. Monti v. Rockwood Ins. Co., 303 Pa. Super. 473, 476, 450 A.2d 24, 25-26 (1982) (citing St. Paul Fire and Mar. Ins. v. U.S. Fire Ins. Co., 655 F.2d 521 (3rd Cir. 1981)). “A court should not rewrite terms of a policy or give them a construction in conflict with the accepted and plain meaning of language used in the policy. Id.

An insurance policy is typically construed strongly against the insurer. Miller v. Boston Ins. Co., 420 Pa. 566, 570, 218 A.2d 275, 277 (1966) (quoting Warner v. Employers’ Liability Assurance Corp., 390 Pa. 62, 133 A.2d 231 (1957)). Although, it is incumbent upon the insured to establish that the claim is covered under the policy. Id. (citing Fullmer v. Farm Bureau Mutual Auto Insurance Company, 350 Pa. 451, 452, 39 A.2d 623 (1944)). The insurer then retains the burden of establishing its defense based upon an exception or exclusion contained within the policy, Id. (quoting Armón v. Aetna Casualty and Surety Co., 369 Pa. 465, 87 A.2d 302, 304 (1952)). “It is only when the existence of facts constituting an affirmative defense is admitted by the plaintiff, or is established by uncontradicted testimony in the plaintiffs case, that burden is removed from the defendant.” Armon v. Aetna Cas. & Sur. Co., 369 Pa. 465, 469, 87 A.2d 302, 304 (1952) (citing Ehrlich v. United States Fidelity & Guaranty Co., 356 Pa. 417, 424, 51 A.2d 794, 798 (1947)). “Whether a claim is within a policy’s coverage or barred by an exclusion is a question of law that may be decided by a motion for summary judgment.” Butterfield v. Giuntoli, 448 Pa. Super. 1, 11, 670 A.2d 646, 651 (1995) (citing Ryan Homes, Inc. v. Home Indemnity Co., 436 Pa. Super. 342, 346, 647 A.2d 939, 940-941 (1994)).

In the current case, the issue is whether the damage to the residence was caused by the tenants themselves, or the tenants’ leaving their dog within the residence with the intention that the dog urinate and defecate in the residence intending to damage the premises or whether the dog was just left within the residence and caused damages to the premises but there was not the intention to specifically damage the property. The defendant has provided the court with the deposition testimony of Mr. Fleeger, in which he stated on several occasions that the dog urinated and defecated in the residence as it was locked inside without the ability to exit. The defendant also presented a letter dated July 30, 2010, in which Captain Lauren E. Rosenblatt, a legal assistance attorney for the United States Air Force and the Plaintiffs representative, stated that she inspected the home and discovered it was apparent that the tenants willfully permitted a dog to occupy the home without providing the dog the ability to go outside. She also stated that the tenants permitted the dog to remain in the house to urinate and defecate anywhere it pleased. Captain Rosenblatt further opined the cause of the damages was vandalism. However, it appears that both Mr. Fleeger and Captain Rosenblatt lacked direct evidence as to the origin of the urine and feces as they did not observe the dog urinating or defecating in the residence nor did they have any testing conducted. They are also not qualified to testify whether it was the intent of the tenants to deliberately damage the property of the plaintiffs, nor conclude that this is a case involving vandalism.

Moreover, the court has been presented with the deposition testimony of Leesa O. Tomsett, the corporate representative for US A A, who testified that the terms of the lease between the plaintiffs and Mr. and Mrs. Ross indicated that a dog was not permitted in the residence. Ms. Tomsett also stated that the patterns of urination were consistent with an animal causing the damage, but she could not rule out that it was caused by a human. It must be noted that Ms. Tomsett stated that it is undisputed that the dog was left in the residence unattended when the animal was not supposed to be inside based upon the terms of the lease.

The defendant asserts that there is circumstantial evidence that the dog caused the damage to the residence based upon the fact that plaintiff acknowledged a dog was kept within the residence and the location of the urine and feces, plus a paint tray was placed in one heating duct to collect urine. Thus, there remains a question of fact concerning whether the damage inflicted upon the residence was caused by a domesticated animal, by the tenants themselves or through the tenants leaving the dog in the house for long periods of time with the intention to cause damage to the premises.

Ms. Tomsett could not conclusively rule out that a human caused the damage from the urine and feces and Major Fleeger and Captain Rosenblatt lack the requisite level of expertise to conclusively surmise that the damage was caused by a dog. Hence there is a question of fact concerning the origin of the urine and feces. Additionally, the plaintiffs have also asserted that, even if the urine and feces were produced by the dog, it was vandalism to leave the dog in the residence all day without the ability to go outside. According to the testimony of Ms. Tomsett and Mr. Fleeger, it was a violation of the lease agreement between the plaintiffs and Mr. and Mrs. Ross for a dog to be in the residence. In the current matter, the plaintiffs are alleging that the actions of Mr. and Mrs. Ross went beyond merely breaching the contract by having a dog in the residence as they left the dog in the residence all day without the ability to go outside, which caused it to urinate and defecate in the house. The plaintiff asserts that the actions of Mr. and Mrs. Ross constituted vandalism which is entitled criminal mischief by the Pennsylvania Crimes Code. It is important to note that the criminal statute for criminal mischief states, “A person is guilty of criminal mischief if he: (5) intentionally damages real or personal property of another.” 18 Pa.C.S.A. § 3304(a)(5). The plaintiffs aver that the property was intentionally damaged by Mr. and Mrs. Ross urinating or defecating on the floors or by keeping the dog within the residence. The plaintiffs argue that those actions constitute criminal mischief as defined by 18 Pa.C.S.A. § 3304(a)(5) and demonstrate vandalism pursuant to the insurance contract with the defendant. There remains a question of fact as to the origin of the urine and feces and concerning whether Mr. and Mrs. Ross confined the dog within the residence as a means of intentionally damaging the residence as claimed by the Plaintiffs or if they allowed the dog to defile the residence without the specific intent to cause damage to the same as asserted by the defendant as they worked long hours and multiple jobs and kept the residence in a slovenly manner. The plaintiffs have been able to present adequate evidence that there was damage caused to the property. The plaintiff observed the dog inside of the house, in violation of the lease agreement. There is also testimony that the dog was confined to the residence alone and without the ability to go outside, which is circumstantial evidence that it caused the damage to the residence. Also, a paint tray was placed in a heating duct to collect urine which could lead one to the conclusion that there was no intention to damage the property because if the intention existed, the tray would not have been placed in the duct. Therefore, the parties have presented sufficient evidence to create a question of fact regarding whether the insurance policy exclusion for domestic animals precludes their recovery for the damage caused to the residence by urine and feces left after Mr. and Mrs. Ross vacated the same.

The plaintiffs also contend that they are entitled to summary judgment as the doctrine of spoliation creates the presumption that the damage to the carpeting did not fall within the exclusionary language of the contract because the defendant had the opportunity to test the carpet to determine whether the feces were from a human or an animal.

Courts have adopted the spoliation doctrine which allows for an inference that evidence destroyed by one party would have been unfavorable to the position of the offending party. Mount Olivet Tabernacle v. Edwin L. Wiegand Division, Emerson Electric Co., 781 A.2d 1263, 1269 (Pa. Super. 2001) (citing Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3rd Cir. Pa. 1994)). The spoliation inference has both prophylactic and punitive effects. Id. Under this rule the court may impose various sanctions, which include: “dismissal, striking out pleadings or portions thereof, prohibiting the introduction of evidence, and permitting the inference at trial that the destroyed evidence would have been harmful to plaintiff.” Troup v. Tri-County Confinement Svs., 708 A.2d 825, 828 (Pa. Super. 1998) (citing Robinson v. Alston, 413 Pa. 296, 197 A.2d 40(1964)).

The Pennsylvania Supreme Court has provided the following factors to aid the court in deciding the proper penalty for spoliation:

(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. Shroeder v. Commonwealth, 551 Pa. 243, 250-251.

In deciding the proper sanction for spoliation, the court should apply the least drastic sanction, such as a curative instruction that would both remedy the problem of the missing evidence, if applying any sanction at all. Sebelling by & through Sebelling v. Yamaha Motor Corp., USA, 705 A.2d 904, 907 (Pa. Super. 1998). The court must determine the degree of fault attributable to defendant and in order to do this the court must examine “two components: responsibility, and the presence or absence of bad faith.” Mount Olivet Tabernacle, 781 A.2d at 1270. Also, if comparable evidence exists then the prejudice created by the spoliation of the evidence is removed. O’Donnell v. Big Yank, 696 A.2d 846, 848-849 (1997) (citing Quaile v. Carol Cable Co. Inc., 1993 U.S. Dist. Lexis 2745 (E.D. Pa. 1993); Martin v. Volkswagen of America, Inc., 1989 U.S. Dist. Lexis 8087 (E.D. Pa. 1989)); See also Amico v. Radius Communications, 2001 Phila. Ct. Com. PI. Lexis 89 (2001).

In the current matter, it does not appear that a sanction or inference based upon the doctrine of spoliation is necessary as both parties had access to the carpet and could have had testing performed to determine the origin of the feces and urine that was present. Neither party had the carpet tested, even though they had the opportunity to do so. It must be noted that the plaintiffs, as owners of the residence, had access to the entire carpet and provided a sample of the same to the defendant. The plaintiffs cannot now assert that it was the duty of the defendant to test the carpet when they had the same opportunity. As a result, the court will not impose any type of spoliation sanction against the defendant and there will be no presumption concerning the origin of the feces on the carpet. It must be noted that the plaintiff chose to destroy the carpet after providing a sample to the defendant. Thus, the plaintiffs’ motion for summary judgment is denied.

The defendant filed a cross motion for partial summary judgment asserting that the plaintiffs’ misrepresentations have voided the insurance policy, no dispute of material fact exists to challenge the applicability of the insurance policy exclusion for damage caused by domestic animals, the plaintiffs’ bad faith claim is legally insufficient as they have failed to present a valid claim for breach of contract and, if the court concludes the breach of contract claim is sufficient to proceed to a jury, the bad faith claim should be dismissed as the defendant had a reasonable basis for denying the plaintiffs’ claim.

“In order for an insurer to carry its burden of proving misrepresentation, it must show that the representation was false, that the subject matter was material to the risk, and that the applicant knew it to be false and made representation in bad faith.” A.G. Allebach, Inc. v. Hurley, 373 Pa. Super. 41, 52, 540 A.2d 289, 294 (1988) (citing Allstate Insurance Co. v. Stinger, 400 Pa. 533, 537, 163 A.2d 74, 78 (1960); Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa. Super. 519, 529, 463 A.2d 1017, 1023 (1983)). The burden of proving fraud is placed upon the insurer alleging it and it must be established by clear and convincing evidence. Rohm and Haas Co. v. Continental Cas. Co., 566 Pa. 464, 476, 781 A.2d 1172, 1179 (2001) (citing New York Life Ins. Co. v. Brandwene et ux., 316 Pa. 218, 172 A. 669 (1934)). The insurer must prove that the misrepresentations were material to the risk assumed by the insurer.” Id. (citing Evans v. Penn Mutual Life Ins. Co. of Philadelphia, 322 Pa. 547, 186 A. 133 (1936)). “When knowledge or ignorance of certain information would influence the decision of an insurer...that information is deemed material to the risk assumed by the insurer.” Id. (citing A.G. Allebach, Inc., supra) The courts have defined fraud as “anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth or look or gesture.” Id. (quoting Moser v. DeSetta, 527 Pa. 157, 589 A.2d 679, 682 (1991)). That means there must be a deliberate intent to deceive. Id.

In the current case, the insurance policy in question contains a provision that states the following:

Concealment of Fraud. The entire policy will be void if, whether before or after a loss, you have:
a. Intentionally concealed or misrepresented any material fact or circumstance;
b. Engaged in fraudulent conduct; or
c. Made false statements; relating to this insurance.

The defendant is now asserting that the insurance policy is void due to the plaintiffs’ misrepresentation concerning the cause and origin of the feces and urine as it appears the plaintiffs first contended that the damage was caused by a dog and have altered that contention to include that the damage could have been caused by Mr. and Mrs. Ross either through their own acts or by leaving the dog in the home alone without the ability to go outside with the intent to cause damage to the inside of the residence. However, there are remaining questions of fact concerning whether or not the plaintiffs have intentionally concealed or misrepresented a material fact. Even though, Mr. Fleeger originally stated that the urine and feces were produced by a dog, the court has not been presented with any proof to conclusively determine that a dog actually caused the damage to the residence. Moreover, the plaintiffs have also asserted a claim that Mr. and Mrs. Ross locked their dog within the residence without providing it with access to the outside, which caused the dog to urinate and defecate on the walls and floors of the residence. In doing so, according to the plaintiffs, Mr. and Mrs. Ross committed vandalism of the property by intentionally allowing the dog to damage the residence. This produces another question to be decided by the jury as to whether or not those acts by Mr. and Mrs. Ross constitute vandalism as defined by the insurance policy. There is conflicting evidence on record concerning the cause of the damage to the residence and that creates a question of fact for a jury concerning whether the plaintiffs misrepresented a material fact. Therefore, the court denies the defendant’s cross partial motion for summary judgment concerning whether the insurance policy is void under its concealment of fraud provision and that issue shall be decided by a jury.

The defendant also asserts no dispute of material fact exists to challenge the applicability of the insurance policy exclusion for damage caused by domestic animals. This issue was addressed previously in the court’s disposition of the plaintiffs’ motion for summary judgment. As the court explained in the aforementioned section of this opinion, Mr. Fleeger has stated on several occasions that a dog urinated and defecated inside of the residence causing extensive damage. This was also reiterated by Captain Rosenblatt. However, those individuals do not have the proper training to conclusively state that the urine and feces were produced by a dog, which creates a question of fact as to whether a dog actually caused the damage to the residence. Moreover, the plaintiffs have also asserted that, if the damage was caused by a dog, it is still vandalism as Mr. and Mrs. Ross locked the dog within the residence for extended periods of time without allowing it to go outside in order to intentionally cause damage to the property. There is also testimony by Ms. Tomsett that the lease prohibited Mr. and Mrs. Ross from allowing the dog to enter the residence. It is important to note that the defendant was provided with a sample of the carpet, which it could have sent for testing to conclusively determine whether the urine and feces were produced by a dog or a human and it chose not to have those tests conducted. Hence, there are remaining issues of material facts concerning the applicability of the insurance policy exclusion for damage caused by domestic animals.

The defendant further argues that the plaintiffs’ bad faith claim is legally insufficient as they have failed to present a valid claim for breach of contract and, if the court concludes the breach of contract claim is sufficient to proceed to a jury, the bad faith claim should be dismissed as the defendant had a reasonable basis for denying the plaintiffs’ claim. As stated previously, the plaintiffs have presented sufficient evidence to create questions of fact concerning their breach of contract claim arising out of the defendant’s refusal to provide insurance coverage for the damage caused to the residence. The court will not further address that issue at this time as it has been thoroughly addressed previously in this opinion. The issue raised in the plaintiffs’ bad faith claim concerning whether the defendant had a reasonable basis for denying the plaintiffs’ insurance claim has not been addressed previously.

Bad faith as mentioned in 42 Pa.C.S.A. § 8371 is defined as

any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i. e., good faith and fair dealing) through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith. Terletskv v. Prudential Property and Cas. Ins. Co., 437 Pa. Super. 108, 649 A.2d 680 (1994) (citations omitted).

Bad faith does not only include the denial of claims, but also misconduct of an insurer during the pendency of litigation. O’Donnell ex rel. Mitro v. Allstate Ins. Co., 134 A.2d 901, 906 (Pa. Super. 1999). That means the duty owed by the insurer to the insured only ends when the insured files suit. Id. Stated in other words, “To prove bad faith, a plaintiff must show by clear and convincing evidence that the insurer (1) did not have a reasonable basis for denying benefits under the policy and (2) knew or recklessly disregarded its lack of a reasonable basis in denying the claim.” Greene v. United Services Auto. Ass’n, 936 A.2d 1178, 1189 (Pa. Super. 2007) (citing Condio v. Erie Insurance Exchange, 899 A.2d 1136, 1143 (Pa. Super. 2006)). “[B]ad faith must be proven by clear and convincing evidence and not merely insinuated.” Bombar v. West American Ins. Co., 932 A.2d 78, 90 (Pa. Super. 2007) (quoting Terletsky v. Prudential Property and Casualty Ins. Co., 437 Pa. Super. 108, 649 A.2d 680, 688 (1994)).

In the current case, the plaintiffs aver a bad faith claim based upon the defendant’s alleged unreasonable delay in processing the plaintiffs’ claim, failing to conduct an adequate investigation, failing to communicate with the plaintiffs, failing to pay the plaintiffs’ claim within a reasonable time after receipt of the supporting documents, failing to attempt to effectuate a prompt settlement in good faith, failing to offer a reasonable payment of the plaintiffs’ claim and failing to make an honest settlement attempt. However, the plaintiffs have not produced any evidence to demonstrate that the defendant denied the plaintiffs’ claim in bad faith. The record reflects that the defendant had a reasonable basis to deny the plaintiffs’ claim as the defendant asserts that damage caused by domestic animals is an exclusion to the insurance policy in question. As stated previously, this defense is valid and it needs to be decided by a jury as there are questions of fact concerning whether that exclusion applies. The plaintiffs have not presented any evidence that the defendant’s denial of the claim demonstrated an improper purpose on its behalf and there is no evidence that it breached a known duty motivated by self-interest or ill will. In order for the plaintiffs’ bad faith claim to survive summary judgment, there must be more evidence on record than averments in the various complaints alleging that the defendant failed to conduct a proper investigation and failed to timely settle the plaintiffs ’ claim. It is important to note that the plaintiffs have altered or clarified their claims on various occasions through the litigation of this case. In the complaint filed on June 3, 2011, the plaintiffs averred that Mr. and Mrs. Ross vandalized the property as they “allowed, caused and permitted this dog to urinate on the walls of the plaintiffs’ real property, as well as in the comers of the rooms, in doorways and down heater vents.” (Plaintiffs’ Compl. ¶8(0)). In addition, the complaint states, “vandalism is covered by the policy. The renters used the dog to perform their vandalism.” (Plaintiffs’ Compl. ¶ 8(b)). However, the plaintiffs altered their claim in their second amended complaint filed on November 25,2013, by stating that Mr. and Mrs. Ross deliberately damaged the property “either by themselves, through this dog, or both.” The second amended complaint further asserts that Mr. and Mrs. Ross vandalized the property by permitting the dog to urinate inside of the residence and by themselves urinating inside of the residence. (Plaintiffs’ second amended Compl. ¶¶ 8(c) and 8(d)). Those are substantial alterations to the plaintiffs’ theory as to how the residence was damaged and requires investigation on behalf of the defendant. Moreover, there are still substantial questions concerning the applicability of the domestic animal exclusion in the insurance policy, which requires litigation. The defendant should not be subjected to a bad faith claim based upon questioning the applicability of an insurance policy exclusion in a reasonable manner. The plaintiffs have failed to produce evidence to demonstrate that the defendant acted in bad faith by denying their claim for insurance coverage concerning the damage caused to the residence at 3207 Ellwood Road, New Castle, Lawrence County, Pennsylvania. If the plaintiffs’ bad faith claim is permitted to survive summary judgment based upon the current record that would provide a basis for any insured to file a bad faith claim based upon every denial of insurance coverage, which is not the intent of 42 Pa.C.S.A. § 8371. Therefore, the court grants the defendant’s cross partial motion for summary judgment in regard to the plaintiffs’ claim for bad faith pursuant to 42 Pa.C.S.A. § 8371 and that claim is dismissed.

For the reasons set forth in this opinion, the plaintiffs’ motion for summary judgment is denied. The defendant’s cross motion for partial summary judgment is granted concerning the plaintiffs’ claim of bad faith and denied in relation to all other issues raised.

ORDER OF COURT

Now this 29th day of December, 2014, this case was before the court previously for oral argument on the plaintiffs’ motion for partial summary judgment and defendant’s cross-motion for summary judgment, with both parties appearing through their counsel, the plaintiffs, David Fleeger and Marcia Fleeger, represented through counsel, Charles W. Garbett, Esquire, and the defendant, United Services Automobile Association, represented through counsel, Patricia A. Monahan, Esquire, and after consideration of the arguments and briefs presented and submitted by counsel and a complete review of the applicable record, the court enters the following order, and it is hereby, ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for partial summary judgment filed by the plaintiff alleging the defendant has failed to present evidence regarding the insurance policy’s domestic animal exclusion and the doctrine of spoliation is hereby denied.

2. In accordance with the attached opinion, the cross-motion for partial summary judgment filed by the defendant asserting that the plaintiffs’ misrepresentations have voided the insurance policy, that there are no material facts challenging the domestic animal’s exclusion exception to the insurance policy and that the bad-faith claim is legally insufficient to show a claim for breach of contract is hereby denied.

3. In accordance with the attached opinion, the cross-motion for summary judgment on the bad-faith claim asserting that defendant had a reasonable basis for denying the plaintiffs’ claim, is hereby granted. The Count of bad-faith contained in the complaint is hereby dismissed, with prejudice.

4. The prothonotary is directed to serve a copy of this order of court upon counsel of record, Charles W. Garbett, Esquire, and Patricia A. Monahan, Esquire.

      . Neither party has presented evidence that Mr. and Mrs. Ross personally caused the damage.