author: HARLACHER SIBUM, J.,

text:
    Commonwealth v. Perini

      C.P. of Monroe County,
    No. 1174 CR 2011.

      Chad Martinez, for Commonwealth.

      Brandon R. Reish, for defendant.
    January 5, 2012
   HARLACHER SIBUM, J.,

Defendant was arrested for driving under the influence of alcohol in connection with events that allegedly occurred on April 16, 2011. Defendant waived her right to a preliminary hearing. The commonwealth filed a criminal information on August 16, 2011, charging defendant with two counts of Driving Under the Influence of Alcohol, 75 Pa.C.S. §§3802(a)(l) and (c). Defendant filed an omnibus pretrial motion on September 27, 2011, including a motion to suppress and a motion for habeas corpus relief. A hearing was held on November 14, 2011. We are now prepared to decide this matter.

The relevant facts as presented at the omnibus hearing and through the affidavit of probable cause are as follows. On April 16, 2011, Officer Brandon Bingler (“Officer”) of the Stroud Area Regional Police Department (“SARPD”) was traveling eastbound in a marked patrol car, patrolling the 800 block of Main Street, Stroudsburg. Officer observed a vehicle traveling in the opposite direction at a high rate of speed. Officer estimated from his training and experience in the SARPD traffic unit that the vehicle was traveling at 40 miles per hour in a 25 mile per hour zone. Officer then turned his vehicle around to initiate a traffic stop. Meanwhile, he observed the vehicle initiate a right hand turn onto 9th Street, headed northbound. Officer located the vehicle parked in a rear parking lot of a Subway restaurant located on 9th Street in a non-residential, vacant area. The vehicle was turned off and defendant was sitting in the driver’s side of the vehicle. The vehicle was parked in a poorly lighted area of the parking lot shared by Subway and a laundromat which were both closed at the time.

Officer pulled into the parking lot and parked his patrol car between the vehicle and the Subway’s entrance/ exit to 9th Street. Officer stated in his affidavit of probable cause that he activated his vehicle’s overhead lights and initiated a traffic stop of defendant’s vehicle in the Subway’s rear parking lot. Conversely, Officer testified at the omnibus hearing that he activated the patrol lights on his vehicle upon pulling into the parking lot for both officer safety and because the area was not well lit. Officer approached the driver’s side of the vehicle and asked the operator for her driver’s license, registration and insurance documents. The operator was identified as defendant. Defendant told Officer she was waiting for a friend. Officer detected a strong odor of alcohol emanating from defendant’s vehicle and that defendant’s eyes appeared bloodshot and glassy. Officer then questioned defendant if she had been drinking. Defendant replied that it was her birthday. She appeared very excited and upset and began crying hysterically.

Officer requested defendant exit the vehicle and to perform Standardized Field Sobriety Tests. Officer first administered the Horizontal Gaze Nystagmus Test by instructing defendant not to move her head and follow the tip of officer’s pen with only her eyes. Defendant failed the test for “lack of smooth pursuit” and “jerking of the eye at maximum.” Officer then demonstrated the Walk and Turn Test which defendant attempted but could not perform satisfactorily. Officer finally demonstrated the One-Leg Stand Test which defendant attempted and could perform satisfactorily. Officer then requested defendant to submit to aPreliminary Breath Test (“PBT”) and she agreed. The PBT indicated a reading of 0.114%. Defendant was then placed in custody. Throughout Officer’s interactions with defendant, no one ever showed up to meet defendant as she had contended.

Defendant was then transported to the Monroe County DUI Processing Center. Prior to requesting a blood sample, officer read defendant the implied consent law, and defendant stated she understood and was willing to submit to the blood test. Laboratory results of defendant’s blood test indicated a blood alcohol concentration of 0.18%.

DISCUSSION

Defendant filed an omnibus pretrial motion raising (1) a motion to suppress the vehicle stop and all evidence arising therefrom, and (2) a motion for habeas corpus relief. We will address defendant’s issues in turn.

Motion to suppress

The Pennsylvania Rules of Criminal Procedure provide that a defendant may move to suppress any evidence alleged to have been obtained in violation of the defendant’s rights. Pa.R.Crim.P. §581(A). The commonwealth carries the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained illegally. Pa.R.Crim.P. §581(H). The commonwealth must meet its burden by a preponderance of the evidence. Commonwealth v. Ruey, 586 Pa. 230, 240, 892 A.2d 802, 807 (Pa. 2006). The trial court, when deciding a motion to suppress, is required to conduct a hearing and make findings of fact and conclusions of law determining whether evidence was obtained in violation of a defendant’s rights. Commonwealth v. Graham, 554 Pa. 472, 721 A.2d 1075, 1077 (1998). “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses.” Commonwealth v. Shine, 784 A.2d 167, 168 (Pa. Super. 2001). As such, the court is entitled to believe all, part or none of the evidence presented. Id.

Defendant contends that Officer conducted a stop of defendant’s vehicle for traveling at a high rate of speed, thus violating the motor vehicle code. Defense counsel cites Commonwealth v. Chase for the proposition that in order to justify a vehicle stop, an officer must have either reasonable suspicion of a motor vehicle violation that must be investigated or probable cause of a completed violation of the motor vehicle code. See Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008). Defendant argues that Officer conducted a stop of defendant’s vehicle on the basis of a completed motor vehicle violation, speeding, and that it was a non-investigative stop which would trigger the standard of “probable cause,” which Officer did not have to effectuate a valid stop of defendant’s vehicle.

The commonwealth, on the other hand, argues that Officer did not effectuate a traffic stop of defendant’s vehicle for a motor vehicle violation but rather engaged in a mere encounter with defendant while her vehicle was parked in a vacant and poorly lit parking lot. Therefore, the commonwealth contends that no amount of suspicion was required for Officer to engage in a mere encounter or request for information with defendant. Our initial inquiry must begin with what quantum of cause, reasonable suspicion or probable cause, Officer needed to stop defendant’s vehicle for speeding, and whether Officer possessed such grounds.

Police officers are vested with the authority to stop vehicles whenever they have reasonable suspicion that a violation of the motor vehicle code is occurring or has occurred. 75 Pa.C.S. §6308(b). This statute provides as follows:

(b) Authority of police officer. - Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. §6308(b) (emphasis added). “Thus, when an officer has reasonable suspicion a violation of the vehicle code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for investigative purposes stated therein.” Chase, 960 A.2d at 112. “Incident to this stop, an officer may check the vehicle’s registration, the driver’s license and obtain any information necessary to enforce provisions of the motor vehicle code.” Commonwealth v. Mack, 953 A.2d 587, 590 (Pa. Super. 2008).

Our Superior Court in Commonwealth v. Chase extensively evaluated the constitutionality of Section 6308(b) and distinguished when an officer must have reasonable suspicion or probable cause to effectuate a valid traffic stop for violation of the motor vehicle code. Our Superior Court held as follows:

The issue before us is whether the legislature could determine the quantum of cause an officer needs to stop a vehicle for an alleged violation of the vehicle code. This being a question of law, our scope of review is plenary and our standard of review is de novo.
The Fourth Amendment to the United States Constitution protects the people from unreasonable searches and seizures. A vehicle stop constitutes a seizure under the Fourth Amendment. The key question in determining if a seizure is constitutional under the fourth amendment is if it is reasonable.
A warrantless seizure is presumptively unreasonable under the Fourth Amendment, subject to a few specifically established, well-delineated exceptions. One exception allows police to briefly detain individuals for an investigation, maintain the status quo, and if appropriate, conduct a frisk for weapons when there is reasonable suspicion that criminal activity is afoot. The Fourth Amendment does not prevent police from stopping and questioning motorists when they witness or suspect a violation of traffic laws, even if it is a minor offense.
Nevertheless, appellee argues the Fourth Amendment requires probable cause, relying on Whren, which stated, “As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” However, this language only confirms that when police possess the higher quantum of evidence, probable cause, they may conduct a vehicle stop; the court did not state probable cause is required to stop.
Extensive case law supports the conclusion a vehicle stop for DUI may be based on reasonable suspicion, as a post-stop investigation is normally feasible. However, a vehicle stop based solely on offenses not “investigatable” cannot be justified by a mere reasonable suspicion, because the purposes of a Terry stop do not exist — maintaining the status quo while investigating is inapplicable where there is nothing further to investigate. An officer must have probable cause to make a constitutional vehicle stop for such offenses.
Indeed, the language of §6308 reflects this very intent. Stops based on reasonable suspicion are allowed for a stated investigatory purpose: “to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” This is conceptually equivalent to the purpose of a Terry stop. It does not allow all stops to be based on the lower quantum — it merely allows this for investigatory stops, consistent with the requirements of both federal and state constitutions. We interpret the legislature’s modification of §6308 as merely eliminating the statutory requirement of a greater level of information for a stop under the vehicle code than is constitutionally required for all other stops. As such, it is not unconstitutional.

Chase, 960 A.2d at 112, 113, 116 (internal citations and footnotes omitted.)

Based upon the language of Chase, Officer must have had either reasonable suspicion of a motor vehicle violation that required investigation or probable cause of a completed violation of the motor vehicle code, In Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995), superseded by statute on other grounds, a case where police utilized the patrol vehicle’s speedometer for two-tenths of a mile and estimated appellee’s speed at seventy miles per hour, our Supreme Court held:

We note that this is not a case where further investigation would lead to a discovery of a violation of the vehicle code. If the trooper was unable to clock Appellee for three-tenths of a mile or observe the conditions that would warrant a citation for driving at an unsafe speed, there is no further evidence that could be obtained from a subsequent stop and investigation.

Whitmyer, 668 A.2d at 1118. Similarly, in Commonwealth v. Sands, 887 A.2d 261 (Pa. Super. 2005), a case which distinguished a vehicle stop for suspected DUI, noting that such a stop was “a scenario where further investigation almost invariably leads to the most incriminating type of evidence, i.e., strong odor of alcohol, slurred speech, and blood shot eyes”...which “can only be obtained by a stop and investigation,” our Superior Court recently followed similar logic:

[I]t is hard to imagine that an officer following a vehicle whose driver is suspected of driving at an unsafe speed would discover anything further from a stop and investigation. Similarly, if an officer who observes a driver run a red light or drive the wrong way on a one-way street, the officer either does or does not have probable cause to believe there has been a violation of the vehicle code. A subsequent stop of the vehicle is not likely to yield any more evidence to aid in the officer’s determination.

Sands, 887 A.2d at 270. The Chase court affirmed this logic and held “[i]f Terry allows an investigatory stop based on reasonable suspicion, there must be something to investigate.” Chase, 960 A.2d at 115. Therefore, [w]hen the existence of reasonable suspicion combines with the expectation that the stop will allow light to be shed on the relevant matters, the stop is not unconstitutional.” Id.

In our case, Officer observed defendant’s vehicle traveling in the opposite direction at a high rate of speed and estimated from his training and experience that the vehicle was traveling 40mph in a 25mph zone. Officer testified that he turned his vehicle around to initiate a traffic stop but that the car had turned off the main road onto North 9th Street. Officer later located defendant’s vehicle parked in a parking lot with the engine off. Officer testified that he pulled into the parking lot and activated his patrol lights in order to illuminate the area and for officer safety, however, in his affidavit, he acknowledged that he effectuated a traffic stop. Officer then approached defendant to speak with her and immediately requested her driver’s license, registration and insurance. Officer did not cite defendant for speeding nor did he question her about how fast she was traveling.

Based upon these facts of record, and Officer having acknowledged that he effectuated a traffic stop in his Affidavit of Probable Cause, the commonwealth has not presented sufficient facts to illustrate that Officer had probable cause to stop defendant for speeding. Had Officer testified that he suspected DUI and the basis thereof, or that he had pulled her over for a violation of the motor vehicle code which required investigation to corroborate, his stop of defendant’s vehicle may have been valid under a reasonable suspicion standard.

However, Officer having only suspected defendant of speeding, and having no way to validate that she was truly speeding except through Officer’s estimation that she was traveling 40mph in a 25mph zone, Officer did not satisfy the probable cause standard.

Having determined that Officer did not effectuate a valid stop of defendant’s vehicle for lack of probable cause under Chase, we must determine whether Officer’s interaction with defendant amounted to a mere encounter requiring no level of suspicion to interact, or an investigative detention which must have been supported by reasonable suspicion.

In Pennsylvania, courts recognize three categories of police officer and citizen interaction:

The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an “investigative detention” must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or custodial detention must be supported by probable cause. An investigative detention constitutes a seizure of the person and must be supported by reasonable suspicion that those detained are engaged in criminal activity.

Commonwealth v. Carter, 779 A.2d 591, 593 (Pa. Super. 2001). “No constitutional provision prohibits police officers from approaching a citizen in public to make inquiries of them.” Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010). “However, if the police action becomes too intrusive, a mere encounter may escalate into an investigatory [detention] or seizure.” Id. Our Superior Court has differentiated between a mere encounter and an investigatory detention as follows:

The term mere encounter refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the Fourth Amendment. For example, a mere encounter transpires when an officer approaches a citizen on a public street for the purpose of making inquiries.
In contrast, an investigative detention occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. In other words, in view of all the circumstances, if a reasonable person would have believed that he was not free to leave, then the interaction constitutes an investigatory detention. An investigatoiy detention triggers the constitutional protection of the Fourth Amendment to the United States Constitution, Article I, Section 8 of the Pennsylvania Constitution, and the prerequisites for such a detention as set forth in Terry [v. Ohio].

Id. at 325-26 (internal citations omitted). To initiate an investigative detention, the officer must have at least reasonable suspicion that criminal activity is afoot. Commonwealth v. Stevens, 832 A.2d 1123, 1127 (Pa. Super. 2003); Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005).

Here, Officer pulled into the Subway parking lot and parked his patrol car between defendant’s vehicle and the entrance/exit leading to 9th Street. Officer activated his overhead lights to illuminate the area and for the safety of both the Officer and defendant. Officer then approached defendant’s vehicle and requested her driver’s license, registration and proof of insurance. Defendant informed Officer that she was waiting for a friend. It was not until after Officer smelled alcohol on defendant and observed her eyes to be bloodshot and glassy did he ask her if she had been drinking that evening. Based upon the above cited case law, and looking at the totality of the circumstances in this case, especially when officer had taken possession of defendant’s license, registration, and insurance cards, a reasonable person would not have believed that he or she was free to leave, and therefore, the interaction constitutes an investigatory detention requiring at least reasonable suspicion that criminal activity was afoot.

Often during traffic stops, officers “observe facts that lead them to a reasonable suspicion that some alternate criminal activity is afoot, and therefore, the officers prolong their encounter with the driver although the purpose of the initial traffic stop has been achieved.” Commonwealth v. Dales, 820 A.2d 807, 812 (Pa. Super. 2003). Although Officer testified that upon speaking with defendant he smelled a strong odor of alcohol emanating from her vehicle and observed her to have bloodshot, glassy eyes, he did not have probable cause, as required in Chase, that she was violating the law prior to his encounter with defendant to justify his further interaction with and detention of defendant. Defendant’s motion to suppress will be granted.

Motion for habeas corpus relief

Defendant’s motion for habeas corpus relief stems from her argument that Officer’s stop of defendant’s vehicle was unlawful. The exclusionary rule provides that evidence obtained as a result of an unconstitutional search or seizure cannot be used against a defendant. Commonwealth v. Williams, 2 A.3d 611, 619 (Pa. Super. 2010). The rule also “applies to any evidence discovered as a result of the original illegal police conduct; such evidence is termed “fruit of the poisonous tree.’” Id.

Having found that officer did not possess probable cause to effectuate a valid traffic stop for speeding, and that officer’s interactions with defendant amounted to an improper investigative detention requiring reasonable suspicion that criminal activity was afoot, instead of a mere encounter, the evidence obtained as a result of officer’s illegal conduct constitutes “fruit of the poisonous tree.” defendant’s motion will be granted.

Accordingly, we enter the following order.

ORDER

And now, January 5,2012, defendant’s omnibus pretrial motion is granted.

      . Section 6308(b) was amended on February 1,2004, changing the standard from “articulable and reasonable grounds,” which is tantamount to probable cause, Commonwealth v. Whitmyer, 542 Pa. 545, 550, 668 A.2d 1113, 1116 (Pa. 1995), to the less stringent “reasonable suspicion,” but the officer must have more than a hunch as the basis of the stop. Commonwealth v. Korenkiewicz, 743 A.2d 958, 963 (Pa. Super. 1999), appeal denied, 759 A.2d 383 (Pa. 2000); Commonwealth v. Wright, 672 A.2d 826, 830 (Pa. Super. 1996).

      . Whren v. United States, 517 U .S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

      . Terry v. Ohio, 392 U.S. 1. 88 S.Ct. 1868 (U.S. Ohio 1968).

      . Whitmyer was superseded by statute after the Legislature amended 75 Pa.C.S. §6308(b). As such, Whitmyer, as it relates to former Section 6308(b), is no longer controlling precedent, as explained above.


source: Caselaw Access Project

author: NANOVIC, P.J.,

license: Public Domain

text:
    Mar-Paul Co., Inc. v. Jim Thorpe Area Sch. Dist.

      C.P. of Carbon County,
    No. 04-2595.

      Sam L. War shower, for plaintiff.

      Brian E. Subers, for Jim Thorpe Area School District.

      Raymond P. Wendolowski, for Popple Construction, Inc.

      Andrew Fylypovych, for Hayes Large Architects, LLP.

      Carole J. Walpert for United Inspection Services, Inc.

      Nicholas Noel, III and Maura McGuire, for Pathline, Inc.
    November 17, 2011
   NANOVIC, P.J.,

Herein, additional defendant, Hayes Large Architects, LLP (“Hayes”), moves for summary judgment on the claims made in the joinder complaint filed against it by the Jim Thorpe Area School District (“District”), all of which have been assigned to Popple Construction, Inc. (“Popple”). For the reasons which follow, we deny this motion to the extent it requests summary judgment in full.

PROCEDURAL AND FACTUAL BACKGROUND

In 2002, the district began constructing an elementary school in Kidder Township, Carbon County, Pennsylvania, for kindergarten through eighth grade. Mar-Paul Company, Inc. (“Mar-Paul”) was the general contractor for the project; Popple was Mar-Paul’s subcontractor for the project site work. Moisture-laden soil caused construction delays, which resulted in both Mar-Paul and Popple claiming they were owed additional payments from the district beyond the base contract rate.

On August 6, 2004, Mar-Paul filed suit against the district and Popple. Mar-Paul’s complaint included claims for monies due it directly, as well as pass through claims on behalf of Popple.

The district joined Hayes, the district’s architect on the project, as an additional defendant against which it sought indemnification and/or contribution. By agreement dated February 26, 1996, the district contracted for Hayes’ architectural services for the project. The district also claimed direct liability for any amounts Mar-Paul recovered (for itself and on behalf of Popple) against it because of Hayes’ failure to comply with Hayes’ contractual obligations to the district. The district further sought recovery against Hayes for costs to correct defective work related to the construction of a shingled roof over the media center at the project, in the event this work was necessitated by design defects attributable to Hayes.

Hayes, in turn, joined Pathline, Inc. (“Pathline”), the district’s clerk-of-the-works for the project, as an additional defendant. A separate agreement entered in 1999 between the district and Pathline provides for Pathline to furnish these services. In its joinder complaint, Hayes likewise sought indemnification and/or contribution from Pathline for any monies Hayes may be required to pay the district. Additionally, Hayes claimed Pathline was negligent in the information it supplied regarding the suitability of soil conditions at the project site, which was intended to be relied upon and was in fact relied upon by Hayes to its detriment.

In late 2009, Mar-Paul, the district and Popple reduced to writing the terms of settlement of their respective claims against one another. All parties executed a mutual release, assignment of claims and settlement agreement (“agreement”) reflecting the agreed upon terms. Pursuantto this agreement, the district is to pay certain monies to Mar-Paul (i.e., $285,422.00) andPopple (i.e., $275,000.00), and to assign all of its right, title and interest in those claims asserted in its joinder complaint against Hayes to Popple. The agreement further provides that the first $25,000.00 of any monies recovered by Popple are to be retained by Popple, with the balance to be paid 65 percent to Popple and 35 percent to the district, less Popple’s pro rata share of attorney’s fees and costs in pursuing these claims. The agreement also recites that Popple’s claims against the district total $358,698.80.

Before us now is Hayes’ motion for summary judgment in which it asserts first that the district’s assignment to Popple of its claims against Hayes violates public policy and is unenforceable in that it constitutes champerty, and second, that there exist no valid claims for contribution or indemnity that the district could assign to Popple.

DISCUSSION

Champerty

Champerty is:

[a] bargain by a stranger with a party to a suit, by which such third person undertakes to cany on the litigation at his own cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered.

Black’s Law Dictionary 209 (5th ed. 1979). At its essence champerty seeks to bar a party from speculating and profiting in litigation in which he has no legitimate interest. Fleetwood Area School District v. Berks County Board of Assessment Appeals, 821 A.2d 1268, 1274 (Pa.Cmwlth. 2003). To invalidate an assignee’s litigation of an assigned claim, three elements must exist:

1) The assignee must have no legitimate interest in the suit;
2) He must expend his own money in prosecuting the suit; and
3) He must be entitled by the bargain to share in the proceeds of the suit.

Belfonte v. Miller, 243 A.2d 150, 152 (Pa. Super. 1968). “A champertous agreement is one in which a person having otherwise no interest in the subject matter of an action undertakes to carry on the suit at his own expense in consideration of receiving a share of what is recovered.” Id. (quoting Richette v. Pennsylvania R.R., 187 A.2d 910 (Pa. 1963)).

In this case, the second and third elements of champerty have been met because Popple, pursuant to the agreement, will expend its own monies in prosecuting the district’s claims against Hayes and it is entitled to share in the proceeds of any recovery. In dispute is the first element: whether Popple has any legitimate interest in the instant suit independent of the agreement. For the following reasons, we find Popple’s interest to be legitimate: (1) Popple was involved in this litigation from the outset, before any agreement was reached, and does not come to this litigation as an outsider; (2) the subject matter of the agreement is the very litigation in which Popple was an original defendant; (3) the amount of damages claimed by Popple in the underlying litigation exceeds the amount paid to it by the district; and (4) the public policy of this Commonwealth favors settlement and allows for the assignment of non-personal injury claims. Popple is no stranger to the litigation and, as such, is not barred by champerty from pursuing the claims against Hayes which have been assigned to it by the District.

Viability of the District’s Claims Assigned to Popple

To the extent that the district’s joinder complaint against Hayes asserts a claim for contribution, Hayes is correct in stating that such a claim cannot exist. The underlying claims brought by Mar-Paul and Popple against the district are in contract. At the most basic level, Mar-Paul and Popple claim that the district’s actions were a breach of the parties’ contract and caused damages. There are no tort claims. Accordingly, since the principle of contribution refers to the allocation of the payment of damages by and between two or more joint tortfeasors, and there being no claim that the district was a tortfeasor, its request for contribution against Hayes must fail. See 42 Pa.C.S.A. § 8324(a) (providing for contribution only between joint tortfeasors); Carson v. Driscoll, 2006 WL 2009047 *6 (CCP Phil. 2006) (“Contribution is not a proper claim where the underlying claims sound in contract”). Popple does not dispute this conclusion.

Nor does the district have a claim for indemnity against Hayes. Indemnification is available under Pennsylvania law in only two instances: (1) pursuant to a contractual provision, or (2) by operation of law. City of Wilkes-Barre v. Kaminski Bros., Inc., 804 A.2d 89 (Pa.Cmwlth. 2002). “An agreement to indemnify is an obligation resting upon one person to make good a loss which another has incurred or may incur by acting at the request of the former, or for the former’s benefit.” Szymanski-Gallagher v. Chestnut Realty Co., 597 A.2d 1225, 1228 (Pa. Super. 1991) (quoting Potts v. Dow Chemical Co., 415 A.2d 1220, 1221 (Pa.Super. 1980)). No such contractual obligation has been alleged in the instant proceedings.

With respect to indemnity by operation of law

[t]here is ... a fundamental difference between indemnity and contribution. The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another and for which he himself is only secondarily liable. The difference between primaiy and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence.... It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. Secondary liability exists, for example, where there is a relation of employer and employee, or principal and agent.... Without multiplying instances,... the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible....

Kemper National P & C Companies v. Smith, 615 A.2d 372, 376-77 (Pa. Super. 1992) (quoting Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 250-51, 465 A.2d 1231, 1236 (1983)) (emphasis in original).

As already discussed, this is not a case involving claims of tortious misconduct against or between two or more parties for which equitable division or apportionment of responsibility is sought. More importantly, the relationship between two parties bound by contract (here, the district and Hayes) sets forth neither the type nor the status of relationship upon which secondary liability is imposed on one against the other by operation of law.

Instead, Popple argues that a fair reading of the facts pled in the district’s joinder complaint sets forth a claim for direct contractual liability against Hayes for breach of the February 26, 1996 architectural agreement between the district and Hayes. Specifically, Popple alleges that Hayes breached its duty to exercise professional care in the design of the project and in the preparation of contract documents for bidding and award, to advise and consult with the district concerning the progress of the project work, to evaluate and make recommendations to the district with respect to the contractors’ work and requests for change orders, and to examine and evaluate for approval the sequence and manner in which fill material was to be spread and compacted. On these bases, the district has set forth facially viable claims against Hayes for breach of contractual obligations Hayes owed directly to the district which breach, at least in part, is alleged to be the cause of the damages claimed by Mar-Paul and Popple against the district. As such, Hayes’ request for summary judgment in toto will be denied.

CONCLUSION

Having found that Hayes cannot be liable to Popple on the district’s assigned claims for contribution and indemnification, Hayes’ motion for summary judgment as to these claims will be granted. However, as to the district’s direct claim against Hayes for breach of contract, the motion is denied.

      . In a separate motion, Pathline claims that Mar-Paul and Popple have released all claims against the district, as well as against its agents and employees, by virtue of the general release provisions in the agreement. The agreement provides for the release by Popple and Mar-Paul of the district and its “representatives ... employees, agents... consultants ... and their successors or assigns, from any and all suits, debts, claims, demands, judgments, actions, charges and causes of action of any nature whatsoever of any and every kind” which Popple and/or Mar-Paul “ever had, now has, or may in the future have arising out of or relating to the project.” Under the 1999 agreement between the district and Pathline for the employment of Pathline as the district’s clerk of the works, Pathline was hired “to serve as the agent of the [district] at the [project] site.” As the district’s agent, the agreement releases Pathline from any obligation to pay any monies due Popple by way of contribution or indemnification. See Buttermore v. Aliguippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989). (holding that a release given to a particular individual and “any and all other persons. . . whether known or unknown” was applicable to all tortfeasors despite the fact that they were not specifically named and did not contribute consideration to the release).
      The claims asserted in Hayes’ joinder complaint against Pathline are “only for contribution and indemnification in the event Popple is successful in its claim as assigned by the school district.” (Hayes’ answer to Pathline’s motion for summary judgment, paragraph 28). As to indemnification, Hayes concedes the relationship between it and Pathline — that of architect and clerk of the works, respectively, each having a contract with the district, but not with one another — is not one which creates liability between them differentiated on principles of primary and secondary liability. However, with respect to contribution, Hayes argues Pathline is a proper party to these proceedings in order to determine whether Pathline is a joint tortfeasor with it and, if so, the allocation of damages by and between them. Davis v. Miller, 385 Pa. 348, 351, 123 A.2d 422, 424 (1956); National Liberty Life Insurance Co. v. Kling Partnership, 504 A.2d 1273, 1276-77 (Pa. Super. 1986). While initially appearing to have merit, because the district’s claims against Hayes are founded on the contract which exists between them and not in tort - any allegations in the district’s joinder complaint notwithstanding (see Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010) (the gist of the action doctrine precludes plaintiffs from recasting ordinary breach of contract claims into tort claims)) - Hayes and Pathline cannot be joint tortfeasors.
      Moreover, unlike the contractual relationship which exists between the district and Hayes, Hayes has no contractual relationship with Pathline and thus no direct claim for breach of contract is available to it: Pathline’s contract is with the district, not Hayes. Nevertheless, Hayes’ joinder complaint alleges a direct cause of action against Pathline for negligent misrepresentation under section 552 of the restatement (second) of torts entitled “Information negligently supplied for the guidance of others.” This section “sets forth the parameters of a duty owed when one supplies information to others, for one’s own pecuniary gain, where one intends or knows that the information will be used by others in the course of their own business activities.” Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 479, 866 A.2d 270, 285-86 (2005).
      Here, the contract between the district and Pathline requires Pathline to perform all of its duties “in cooperation with [Hayes].” (Article 2.3.2). In particular, Pathline is responsible, inter alia, for “conducting on-site observations” (article 2.3.12) and for reporting to Hayes whenever the work does “not meet the requirements of any inspection, test or approval required to be made.” (Article 2.3.13). Given that the district’s claims against Hayes include a claim for failure to timely and/or accurately provide information relative to the water content of the soils being excavated and/or compacted, and that Hayes claims it was relying on the information about the suitability of soils, as well as the testing thereof and the overall quality of the work as observed and required to be reported to it by Pathline, which reports Hayes contends were false and/ or misleading with respect to site conditions and the work conducted by the prime contractors to eliminate ground moisture, Hayes has stated a viable cause of action against Pathline under section 552 of the restatment (second) of torts. Accordingly, Pathline’s motion for summary judgment on its joinder by Hayes is denied.


author: WAITE, J,

text:
    LeBoon v. Schmidt

      C.P. of Bucks County,
    No. 2011-03392-31.

      Steven Lee LeBoon, pro se.

      Benjamin A. Post, for appellee Dr. Richard Schmidt.

      William C. Foster, for Liberty Mutual.

      Jason G. Benion and John W Dornberger, for IMX.
    July 21, 2011
   WAITE, J,

This matter comes before the court on Liberty Mutual Insurance Company (“Liberty Mutual”) and IMX Medical Management Services, Inc.’s (“IMX”) preliminaiy objections to Steven Lee LeBoon’s (“LeBoon”) complaint alleging intentional infliction of emotional distress (“IIED”), negligent infliction of emotional distress (“NIED”), and fraud during the course of LeBoon’s worker’s compensation claim litigation. While eventually obtaining worker’s compensation benefits, LeBoon alleges Liberty Mutual and IMX improperly handled his worker’s compensation claim which caused him emotional distress for which he now seeks to recover litigation costs, compensatory damages, and punitive damages.

BACKGROUND AND PROCEDURAL HISTORY

On May 6,2009, LeBoon suffered from worked related injuries during his employment with the Alan Mcllvain Company (“AMC”). On May 12, 2009, LeBoon, through counsel, filed his worker’s compensation claim, which LeBoon asserts was immediately denied despite Liberty Mutual having no medical evidence to substantiate the denial. LeBoon received surgery through his own personal insurance on June 11, 2009. Around that same time, Liberty Mutual requested LeBoon undergo an Independent Medical Examination (“IME”). IMX scheduled the IME which took place on June 19,2009 with Dr. Richard George Schmidt (“Dr. Schmidt”). LeBoon alleges Dr. Schmidt fraudulently completed a physician’s affidavit of recoveiy (“affidavit”) because Dr. Schmidt stated in the affidavit that LeBoon suffered no injury even though Dr. Schmidt later stated LeBoon did suffer work related injuries and AMC acknowledged LeBoon’s work related injury. LeBoon also alleges Dr. Schmidt’s notary certified Dr. Schmidt’s signature in a county where she did not have authority. Finally, LeBoon accuses Dr. Schmidt of lying under oath at his October 12, 2009 deposition. It is IMX’s involvement in setting up the IME with Dr. Schmidt for which LeBoon believes IMX should be liable for IIED, NIED, and fraud.

Worker’s compensation hearings were held on July 8, 2009 and October 14, 2009. LeBoon alleges Liberty Mutual withheld evidence from these hearings, resulting in delays. It is these allegations that form the basis of LeBoon’s NIED and IIED claims against Liberty Mutual. LeBoon further contends Liberty Mutual delayed payment of a worker’s compensation benefits check.

On April 11, 2011, LeBoon filed his pro se complaint against Liberty Mutual, IMX, and Dr. Schmidt. Liberty Mutual responded by filing preliminary objections on the following grounds: the Workers’ Compensation Act (“WCA”) exclusivity provision applies to Liberty Mutual and grants them the WCA immunity; failure to state a claim for IIED and NIED; insufficient specificity for IIED, NIED, and punitive damages; failure to comply with Pa.R.C.P. 1022; and the claim of punitive damages should be stricken. IMX filed its own preliminary objections asserting that the case be dismissed with prejudice pursuant to the exclusivity provision of the WCA; Dr. Schmidt’s affidavit and deposition are protected by absolute judicial privilege; failure to state an IIED, NIED, and fraud claim; and insufficient specificity of the complaint as to IMX’s involvement in the alleged wrongs.

On July 13,2011, oral arguments were held and the case was taken under advisement. For the following reasons, we sustain IMX and Liberty Mutual’s preliminary objections regarding WCA immunity and dismiss their remaining preliminary objections as moot.

DISCUSSION

Under Pennsylvania law, an employer’s liability is limited to what is available under the WCA. 77 P.S. § 481(a). This exclusivity provision creates immunity for the employer from tort liability for claims arising out of the work related injury. This immunity also applies to injuries allegedly caused by the employer’s worker’s compensation insurance carrier and insurance carrier’s agents’ handling of the worker’s compensation claim. See Kuney v. PMA Ins. Co., 525 Pa. 171, 174, 578 A.2d 1285, 1286 (1990) (citing 77 P.S. § 501 and holding that [t]he employer’s immunity from tort action extends to its workers’ compensation insurance carrier, protecting the insurer to the full extent of the employer’s protection”) and Alston v. St. Paul Ins. Cos., 531 Pa. 261, 266, 612 A.2d 421, 423 (1992) (holding that the exclusivity provisions of the WCA “prohibit a tort action against the agents of the insurance carrier for injuries allegedly caused by their actions in handling the employee’s compensation claim” and “also encompasses those individuals or entities who perform or assist in performing the functions of the insurance carrier in handling workmen’s compensation claims as agents or employees of the carrier”).

LeBoon argues that WCA immunity does not apply for intentionally caused injuries and that even if it did, Liberty Mutual and IMX waived such immunity in the compromise and release agreement from May 6, 2010. While LeBoon propounds plausible arguments in opposition to Liberty Mutual and IMX’s preliminary objections, LeBoon’s arguments fail as a matter of law.

There is no exception to WCA immunity for intentional torts, including claims of fraud. See Ranalli v. Rohm & Haas Co., 983 A.2d 732, 735 (Pa. Super. 2009) (stating, “ [g] enerally, even claims of fraud by the employer are barred by the exclusivity provision of the Act...The only exception is where the employer knew its employee had a disease and withheld that information, causing an aggravation of the disease”); Poyser v. Newman & Co., 514 Pa. 32, 38, 522 A.2d 548, 551 (1987) (holding that no intentional tort exception exists in the WCA that “preserve [s] the right of an employee to sue in tort when his injury was caused by the employer’s intentional wrongdoing”); and Barber v. Pittsburgh Coming Corp., 521 Pa. 29, 39, 555 A.2d 766, 772-73 (1989), rev’g Barber v. Pittsburgh Coming Corp., 529 A.2d 491 (Pa. Super. 1987)(rejecting the approach from Readinger v. Gottschall., 191 A.2d 694 (Pa. Super. 1963) and cases relying on Readinger's reasoning since “[a]ny validity to the analysis in Readinger has been lost when the ‘accident’ concept was discarded by the legislature in 1972 and replaced with the ‘injury’ approach”).

The compromise and release agreement does not constitute a waiver of WCA immunities of either Liberty Mutual or IMX. “The fundamental rule in contract interpretation is to ascertain the intent of the contracting parties.” Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 470, 480, 905 A.2d 462, 468 (2006) (citing Robert F. Felte, Inc. v. White, 451 Pa. 137, 143, 302 A.2d 347, 351 (1973)). When there is a written contract, “the intent of the parties is the writing itself.” Ins. Adjustment Bureau, Inc., 905 A.2d at 480 (citing Pines Plaza Bowling, Inc. v. Rossview, 394 Pa. 124, 145 A.2d 672 (1958)). “[I] n determining the intent of the contracting parties, all provisions in the agreement will be construed together and each will be given effect.” LJL Transp, Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 559-60, 962 A.2d 639, 647 (2009) (citations omitted). Here, the language of the compromise and release agreement is unambiguous and it contains no evidence of the intent of the parties for Paragraph 18 to constitute a waiver of Liberty Mutual and IMX’s WCA immunity. Therefore, as a matter of law, this court concludes that there was no WCA immunity waiver by Liberty Mutual or IMX.

CONCLUSION

For the foregoing reasons, we sustain Liberty Mutual and IMX’s preliminary objection on the basis of WCA immunity. Accordingly, we enter the following order:

ORDER

And now, July 21, 2011, it is hereby ordered and decreed that upon consideration of defendants, Liberty Mutual Insurance Company and IMX Medical Management Services, Inc.’s preliminary objections, and plaintiff’s response thereto, defendants’ preliminary objections are disposed of as follows:

1) Liberty Mutual Insurance Company and IMX Medical Management Services, Inc.’s preliminary objections based on Workers’ Compensation Act immunity are sustained. Plaintiff’s complaint as to Liberty Mutual Insurance Company and IMX Medical Management Services, Inc. is dismissed with prejudice.

2) Liberty Mutual Insurance Company and IMX Medical Management Services, Inc.’s preliminary objections for failure to state a cause of action for Intentional Infliction of Emotional Distress are dismissed as moot.

3) Liberty Mutual Insurance Company and IMX Medical Management Services, Inc.’s preliminary objections for failure to state a cause of action for Negligent Infliction of Emotional Distress are dismissed as moot.

4) Liberty Mutual Insurance Company and IMX Medical Management Services, Inc.’s preliminary objections for insufficient specificity of a pleading are dismissed as moot.

5) Liberty Mutual Insurance Company’s preliminary objection for failure to comply with Pa.R.C.P. 1022 is dismissed as moot.

6) IMX Medical Management Services, Inc.’s preliminary objection based on absolute judicial privilege is dismissed as moot.

7) Liberty Mutual Insurance Company’s preliminary objection to strike allegation and claim for punitive damages is dismissed as moot.

8) IMX Medical Management Services, Inc.’s preliminary objection for failure to state a fraud claim is dismissed as moot.

      . A Compromise and Release Agreement was signed on May 6, 2010 by LeBoon awarding him worker’s compensation benefits.

      . IMX, “in an abundance of caution,” presumes LeBoon asserts a fraud cause of action in his complaint due to several uses of the term “fraudulent.”

      . “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.”

      . 77 P.S. § 501(a)(1) states: “...Such insurer shall assume the employer’s liability hereunder and shall be entitled to all of the employer’s immunities and protection...”

      . LeBoon references Paragraph 18 of the Compromise and Release Agreement which states, “Miscellaneous provisions, if any. This agreement does not impact in any manner any other legal matter or administrative proceeding involving the parties. This Agreement fully and completely resolves any workers’ compensation claim involving the Claimant, including the work injury of May 6,2009.”

      . These cases include the case, McGinn v. Valloti, 525 A.2d 732 (Pa. Super. 1987) cited by LeBoon.


author: JOHNSON, J.,

text:
    Pittas v. Healthcare & Retirement Corp. of America, Inc.

      C.P. of Lehigh County,
    No. 2009-C-5561.

      John P. Karoly, III, for plaintiffs.

      Michael W Bootier, for defendant ManorCare.

      Kimberly G. Krnpka, for defendant St. Luke’s.
    March 15, 2012
   JOHNSON, J.,

Before the court for consideration are the following motions:

1. ManorCare defendants’ motion for reconsideration of this honorable court’s December 2,2011 order granting reconsideration filed on December 13,2011, the motion of reconsideration of this honorable court (sic) December 2, 2011 order on behalf of defendants, St. Luke’s Physicians Group, Nancy A. Urankar, M.D. And Mark H. Mishkin, M.D. filed on December 21, 2011, and plaintiffs’ reply thereto;

2. ManorCare defendants ’ motion for reconsideration of this honorable court’s October 27, 2011 order denying defendants’ motion to strike as moot filed on November 23,2011;

3. ManorCare defendants’ petition for petition for rule to show cause why the complaint should not be stricken and, alternatively, motion to strike complaint for lack of a proper verification and/or for judgment of non pros for failure to comply with a court filed on August 23, 2011, and plaintiffs’ reply thereto; and

4. ManorCare defendants’ motion for appellate certification and stay filed on December 30, 2011, and the application for amendment of this honorable court’s interlocutory December 2, 2011 order on behalf of defendants, St. Luke’s Physicians Group, Nancy A. Urankar, M.D. and Mark H. Mishkin, M.D. filed on December 30, 2011.

The court heard argument on January 27, 2012. For the following reasons, defendants’ motions for reconsideration of the December 2,2011 order are denied; ManorCare defendants’ motion for reconsideration of this honorable court’s October 27, 2011 order denying ManorCare defendants ’ motion to strike as moot is granted; ManorCare defendants’ petition to dismiss plaintiffs’ complaint due to Mary Ann Pittas’ incapacity is denied; ManorCare defendants’ motion to strike complaint on the ground of improper verification and/or for judgment of non pros is denied, and the court’s November 2, 2011 order is amended.

I. FACTUAL BACKGROUND

This matter arises from a series of motions and court orders issued between September and December 2011. On September 1, 2011, plaintiffs requested to extend discovery deadlines for submitting expert reports by 45 days. The court granted that motion in an order dated September 12, 2011. Before defendants received notice of the order, defendant ManorCare filed a motion for summary judgment on September 14, 2011, arguing that because plaintiffs had not submitted expert reports by the deadline, they could not sustain their burden in a medical malpractice case. Plaintiffs, believing the motion for summary judgment was moot following the court’s September 12 order, did not respond, and defendants did not withdraw the motion upon receiving the September 12 order. Plaintiffs submitted their expert reports to defendants on October 14, 2011, within the extension granted by the court.

On October 27,2011, seeing no response from plaintiffs to the ManorCare defendants’ motion for summary judgment, the court granted the motion. Plaintiffs filed a motion for reconsideration on November 7, 2011, and the court, realizing ManorCare’s motion for summary judgment was untimely, granted reconsideration and vacated the summary judgment on December 2, 2011. However, by that time thirty (30) days had passed since the court’s October 27, 2011 order granting summary judgment, and thus the October 27 order had become presumptively final.

The defendants, in separate motions, now ask the court to reconsider its December 2 order. Defendants argue that, absent a showing of fraud or extraordinary cause that would support the grant of reconsideration past the original thirty (30) day period, the court no longer had jurisdiction to grant reconsideration. In reply, plaintiffs argue that equity demands the court open and set aside the judgment of October 27, 2011, and that the court may do so, despite the 30-day period having passed.

Additionally, defendants filed two separate motions requesting the court to certify that a controlling question of law is involved in its December 2, 2011 decision as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of this case, such that an appeal is proper under 42 Pa.C.S. 702(b). The defendants also moved to add language stating same to the December 2, 2011 order.

Also filed was defendant’s motion for reconsideration of this honorable court’s October 27, 2011 order denying the defendants’ motion to strike as moot, filed on November 23, 2011. That motion references a motion filed August 23, 2011 entitled Petition For Rule to Show Cause Why Complaint Should Not Be Stricken and, Alternatively, Motion to Strike Complaint for Lack of a Proper Verification and/or for Judgment of Non Pros for Failure to Comply with a Court Order. The August 23 motion argued, first, that plaintiffs’ complaint was null and should be stricken because Mary Ann Pittas was incapacitated at the time the complaint was filed. The August 23 motion also argued that MaiyAnn Pittas’ claims must be stricken because she did not sign a verification for the complaint, and the caption did not state that the suit was being brought by power of attorney. Alternatively, defendants argued that the court should enter a judgment of non pros based on plaintiffs’ failure to comply with a court order and based on plaintiffs’ failure to obtain proper verification nearly two (2) years after filing suit.

ManorCare’s motion filed November 23, 2011 argues that, if the court determines to uphold its December 2, 2011 order vacating summary judgment, it must also reconsider ManorCare’s August 23 motion.

II. DISCUSSION

A. Motions To Reconsider December 2 Order

It is well settled that a court, upon notice to the parties, may modify or rescind any order within thirty (30) days after its entry if no appeal from such an order has been taken or allowed. PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007). Under 42 Pa. C.S.A. §5505, a trial court has broad discretion to modify or rescind an order, and this power may be exercised sua sponte or invoked pursuant to a party’s motion for reconsideration. Id. A trial court may consider a motion for reconsideration only if the motion for reconsideration is filed within thirty (30) days of the entry of the disputed order. Id. The mere filing of a motion for reconsideration, however, is insufficient to toll the appeal period. Id. If the trial court fails to grant reconsideration expressly within the prescribed thirty (30) days, it loses the power to act upon both the motion and the original order. Id.

There are exceptions to this, however. Defendants, in their briefs, note that where there is a showing of fraud or another circumstance so grave or compelling as to constitute extraordinary cause justifying intervention by the court, then a court may open or vacate its order after the thirty (30) day period has expired. First Union Mortgage Corp. v. Frempong, 744 A.2d 327, 334 (Pa. Super. 1999). The case that established that standard, Estate of Gasbarini v. Medical Center of Beaver Cty., Inc., relies, in part, on a Superior Court decision, Great Am. Credit Corp. v. Thomas Mini-Markets, Inc., that has similarities to the case at bar. See Estate of Gasbarini v. Medical Center of Beaver Cty., Inc., 487 Pa. 266, 270, 409 A.2d 343, 345 (1979). In Great Am. Credit Corp., a defendant moved for summary judgment and the court, receiving no answer from plaintiff, granted the summary judgment in favor of the defendant. See Great Am. Credit Corp. v. Thomas Mini-Markets, Inc., 326 A.2d 517 (Pa. Super. 1974). Later, it came to light that the plaintiff had sent a letter asking for an extension of time within which to answer the motion, but that the letter was mislaid during transmission through the court processes. The court, nearly five (5) months later (and thus easily more than thirty (30) days after the court’s order) vacated its previous order and entered an order dismissing the motion for summary judgment. On appeal, the Superior Court affirmed the court’s decision to vacate and dismiss the summary judgment, citing the “inherent power of the courts of this Commonwealth to act where equity so demands” Id. at 519. The Superior Court found the power of courts to correct their judgment, amend records, and to correct mistakes of the clerk or other officer of the court “inherent in courts of justice.” Id. The court found that while the rights of third parties must be respected, the power of a common pleas court to open its judgments is “most ample, and the policy requires its liberal use” when faced with inequitable judgments. Id. (citations omitted).

In the instant case, the court did not amend its decision within the thirty (30) day period, and did nothing that would toll the thirty (30) day period. That said, it is plainly obvious to the court that to vacate the court’s December 2 order that, in turn, vacated the court’s October 27 order would result in an inequitable judgment brought on, in part, by the court’s own mistakes. The court bases this opinion in part on Pennsylvania Rule of Civil Procedure 1035.2, which instructs that “[ajfter 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.” To determine whether or not discovery is complete to establish the timeliness or prematurity of a motion for summary judgment, a court must look at the record of the case. Wolloch v. Aiken, 572 Pa. 335, 341, 815 A.2d 594, 597 (2002). Here, plaintiffs timely filed for, and were granted, an extension of discovery deadlines. Defendants’ motion for summary judgment arrived two (2) days after that extension was granted, and thus was untimely. While plaintiffs would have been best served by responding to defendants’ motion and alerting the court that it was untimely, discovery as to the parties’ expert reports was not yet closed. It is noteworthy that the defendants, who have a duty to the court to not misrepresent, mischaracterize, misquote or miscite facts to the court, per 204 Pa. Code §99.3(8), did not rescind their motion after learning of its untimeliness. These lapses in communication set the stage for the most significant mistake, which was the court’s failure to realize the untimeliness of the motion when granting it.

The court made a second mistake in not considering plaintiff’s November 7 motion for reconsideration before the thirty (30) day period had elapsed. Whether this was the court’s mistake or the failure of a party appears to make no difference, however, in light of Great Am. Credit Corp. which clearly establishes the court’s ability to open a judgment after thirty (30) days if a mistake of the court resulted in an inequitable result. Such mistake and resulting inequity constitutes extraordinary cause justifying intervention by the court.

B. Appellate Certification

As plaintiffs did not reply to the two (2) motions by defendants requesting appellate certification, the court may grant these motions as uncontested. Furthermore, the court finds that the request for instant certification is timely filed in accordance with Pa. R.A.P. 1311(b), which provides that an application for an amendment of an interlocutory order to contain the statement specified in 42 Pa.C.S. §702(b) shall be filed with the lower court within thirty (30) days after the entry of the interlocutory order. Further, the court finds that the November 2, 2011 order, per §702(b), involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. Therefore, the court certifies its December 2, 2011 order for immediate appeal under 42 Pa.C.S. §702(b).

C. Motion To Reconsider October 27 Order Denying Motion To Strike

The court will grant defendants’ motion for reconsideration of this honorable court’s October 27,2011 order denying the defendants’ motion to strike as moot, as the matter would not have been mooted if not for the mistaken summary judgment. An analysis of the original August 23, 2011 motion follows:

i. Incapacity

ManorCare defendants properly cite to Pa.R.C.P. 2051, which defines an incapacitated person, and Pa.R.C.P. 2053, which states that such a person cannot institute or maintain a lawsuit on his or her own behalf. However, ManorCare defendants conspicuously do not cite a standard for determining incapacity, nor a procedure to make that determination. The standards for finding incapacity of a nonresident is found in 20 Pa. C.S.A. § 5511(b) and, by reference, 20 Pa. C.S.A. § 5511(a), which states the standard for a resident. As explained in 20 Pa.C.S.A. § 5511(a), a party seeking a finding of incapacity must petition the court to hold a hearing, and that such finding shall only be made upon presentation of clear and convincing proof of mental incompetency. Such proof must be preponderating. In re Meyers’ Estate, 395 Pa. 459, 462, 150 A.2d 525, 526 (1959) (citations omitted). However, the court may dismiss a proceeding where it determines that the petition is incomplete or fails to provide sufficient facts to proceed. 20 Pa.C.S. § 5511(a). If the court does proceed, it shall consider and make specific findings of fact concerning the nature of any condition or disability which impairs the individual’s capacity to make and communicate decisions. 20 Pa.C.S. §5512.1(a)(1).

Here, ManorCare defendants have asserted “there is no dispute that Maiy ann Pittas lacked the capacity to prosecute these claims at all times relevant hereto, including when the lawsuit was initiated.” Defendants assert that plaintiffs admit that Mary Ann Pittas lacked capacity on October 23, 2009, and on the date of the filing of each complaint. They base this assertion on a document, Plaintiffs’ Response To Requests For Admission And Related Interrogatories And Requests For Production Of Documents Of Healthcare & Retirement Corp. Of America, ManorCare Health Services-Allentown, K. Nonnemaker, L.P.N., Jane Doe, R.N., And John Doe, R.N. Directed To Plaintiffs. In that document, plaintiffs’ attorney denies requests for admissions because “MaryAnn Pittas lacks the capacity to participate in this litigation.” Defendants also base their assertion on a letter from the Pittas’ physician in Greece, Dr. Nikolaos M. Hatzakis (“Dr. Hatzakis”), which states that she cannot speak, does not appear to recognize her husband frequently, and that based on her current mental capabilities, “any attempt at communication would have to be considered totally unreliable.” ManorCare defendants also assert that Andrew Pittas lacks capacity to prosecute, based on a second letter presented by Dr. Hatzakis, stating that Andrew Pittas has significant cognitive dysfunction, including significant damage to his “memory for short and long term events,” caused by his condition, post-accident central nervous system rotational injury/trauma.

The court finds that these submissions do not satisfy the requirements of 20 Pa.C.S. § 5511(a), in that they are not clear and convincing proof of mental incompetency. Without more evidence proffered by ManorCare defendants concerning the nature of any condition or disability which impairs the Pittas’ capacity to make and communicate decisions, the court cannot determine incapacity. Therefore, the court cannot grant the relief requested, and the motion must be denied.

ii. Proper Verification

Plaintiffs correctly cite Pa.R.C.P. 1024(c), which requires that only one named plaintiff verify a complaint. Plaintiff also correctly cites Pa.R.C.P. 2061, which allows any person who has knowledge or information as to the facts averred to “sign a verification on a plaintiff’s behalf.” In the present case, plaintiffs submitted a verification by stipulation and court order. While the placement of the verification has been made an issue, the court accepts plaintiffs’ assertion that this verification, signed by Andrew Pittas, relates to plaintiffs’ third amended complaint. Furthermore, ManorCare defendants concede that plaintiff Andrew Pittas’ signature is on the subject verification. Per Pa. R.C.P. 1024(c), this meets the criteria for verification, and would meet the criteria even if Mary Ann Pittas were deemed incapacitated, per Pa. R.C.P. 2061. Therefore, the motion to strike on this issue is denied.

iii. Judgment Non Pros

Entry of judgment non pros is proper where a plaintiff fails to comply with a court order. Here defendants misrepresent the court order of May 3, 2011: the court ordered “a substitute of verification,” not “appropriate verifications” to the third amended complaint. The plaintiffs responded by providing a verification signed by Andrew Pittas. That the verification arrived a few days beyond the deadline set by the court is noted, and plaintiffs should be made aware that submitting required documents after they are required is bound to have deleterious effects in the future. But in the present matter, the slightly tardy delivery does not merit a judgment of non pros.

III. CONCLUSION

For the foregoing reasons, the court concludes that defendants’ motions for reconsideration of the December 2, 2011 order are denied; ManorCare defendants’ motion for reconsideration of this honorable court’s October 27, 2011 order denying ManorCare defendants’ motion to strike as moot is granted; ManorCare defendants’ petition to dismiss plaintiffs’ complaint due to MaryAnn Pittas’ incapacity is denied; ManorCare defendants’ motion to strike complaint on the ground of improper verification and/or for judgment of non pros is denied; and the court’s November 2, 2011 order is amended as requested.

ORDER

And now, this day of March, 2012, upon consideration of:

5. ManorCare defendants’ motion for reconsideration of this honorable court’s December 2,2011 order granting reconsideration filed on December 13,2011, the motion of reconsideration of this honorable court (sic) December 2, 2011 order on behalf of defendants, St. Luke’s Physicians Group, Nancy A. Urankar, M.D. And Mark H. Mishkin, M.D. filed on December 21, 2011, and plaintiffs’ reply thereto;

6. ManorCare defendants ’ motion for reconsideration of this honorable court’s October 27, 2011 order denying ManorCare defendants’ motion to strike as moot filed on November 23, 2011;

7. ManorCare defendants’ petition for rule to show cause why the complaint should not be stricken and, alternatively, motion to strike complaint for lack of a proper verification and/or for judgment of non pros for failure to comply with a court order filed on August 23, 2011, and plaintiffs’ reply thereto; and 8.

ManorCare defendants’ motion for appellate certification and stay filed on December 30, 2011, and the application for amendment of this honorable court’s Interlocutory December 2, 2011 order on behalf of defendants, St. Luke’s Physicians Group, Nancy A. Urankar, M.D. And Mark H. Mishkin, M.D. filed on December 30, 2011;

It is hereby ordered that:

1. Defendants’ motions for reconsideration of the December 2, 2011 order are denied;
2. ManorCare defendants ’ motion for reconsideration of this honorable court’s October 27, 2011 order denying ManorCare defendants’ motion to strike as moot is granted;
3. ManorCare defendants’ petition to dismiss plaintiffs’ complaint due to Mary Ann Pittas’ incapacity is denied;
4. ManorCare defendants’ motion to strike complaint on the ground of improper verification and/or for judgment of non pros is denied; and
5. The court’s November 2, 2011 order is amended to include the following language, “per §702(b), this order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal form the order may materially advance the ultimate termination of the matter. Therefore, the court certifies this order for immediate appeal under 42 Pa.C.S. §702(b).”

      . The court ruled the subject motion was moot after granting summary judgment.


author: WAITE, J.,

text:
    Conway v. The Cutler Group, Inc.

      C.P. of Bucks County,
    No. 2011-05465-31.

      Christopher A. Bradley, for appellants.

      Nancy J. Wright, for appellee.
    April 18, 2012
   WAITE, J.,

This matter came before this court on Michael andDeborahConway’s (“appellants”) claim of breach of the implied warranty of habitability against the builder of a single family residential unit, The Cutler Group (“appellee”). Appellee filed preliminary obj ections in the nature of a demurrer which were sustained in our February 15, 2012 order, dismissing appellants’ case with prejudice. Appellants filed their motion for reconsideration which was denied. Appellants filed their appeal in the time noted on the dockets. This opinion is filed pursuant to Pa.R.A.P. 1925(a).

FACTS

In 2006, appellants purchased the residential dwelling (“the subject property”) from Davey and Holly Fields (“Fields”). The Fields purchased the subject property from appellee in 2003. Appellee was the designer, developer and builder of the subject property and was the party who originally sold the subject property to the Fields. In 2008, appellants discovered water infiltration around certain windows and other openings in the subject property. Appellants brought suit in 2011 without including the intermediate seller as a defendant but instead claimed that appellee was the sole responsible party as builder. The sole basis for appellee’s liability rests on the theory of implied warranty of habitability.

Appellant retained an expert who opined that the subject property had defective sealing, caulking and flashing, which in turn caused water infiltration and resultant damage. In a one count complaint, appellants alleged a breach of the implied warranty of habitability in contract. Liability of a builder/vendor of a new dwelling for loss or injuries to direct purchasers is firmly established and accepted law; less common but nonetheless at times recognized and accepted, is the extension of liability to a remote purchaser based on provable negligence. Here, however, appellant is a remote purchaser who seeks to extend liability based solely on a contractual breach of implied warranty of habitability without any assertion of negligence. Claims based on the theory of liability asserted by the instant appellee have not found the same level of acceptance in the Commonwealth of Pennsylvania as for claims based in tort. Subsequent purchasers obviously do not have a direct contractual relationship with the builder/vendor and the courts have resisted extension of an express warranty given by the builder/vendor to the original purchaser to now cover subsequent purchasers.

DISCUSSION

On August 4, 2011, the appellee/Cutler Group filed preliminary objections primarily asserting a lack of privity of contract with appellant as the secondary purchaser of the subject property. We were unsuccessful in finding Pennsylvania appellate court precedent to support the theory of appellees’ claim. The issue has received mixed and divided results where it has been considered in our Pennsylvania Common Pleas Court opinions. See Moyer v. White, 48 Pa. D. & C.3d 487 (C.P. Dauphin 1988) and cases cited therein. The case law in other jurisdictions is also divided. See Richards v. Powercraft Homes, Inc., 678 P.2d 427 (Ariz. 1984) and Michael A. DiSabatino, J.D., Annotation, Liability of Builder of Residence for Latent Defects Therein as Running to Subsequent Purchasers from Original Vendee, 10 A.L.R. 4th 385 (1981).

Appellant contends that Spivack v. Berks Ridge Corp., 586 A.2d 402 (Pa. Super. 1991) supports their theory of liability. We disagree. Spivack raises a similar but distinguishable issue where plaintiff purchased a new residential condominium from a developer who in turn obtained title from the builder, a separate and distinct entity. While plaintiff in that case was not the first transferee of the condominium, plaintiff was the first retail user and occupier of the condominium. The fact that the plaintiff was the first user and occupier of the unit was critical to the court’s decision to extend warranty protections to that plaintiff. The Superior Court found that “[p]rivity of contract is not required to assert a breach of warranty claim against the builder of a new residential unit.” Id. at 405. The above noted critical distinction in Spivack does not obtain in the instant matter. The Spivack court opined as follows:

In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1971), our Supreme Court ruled that a builder/vendor impliedly warrants that the house he has built and is selling is constructed in a reasonable workmanlike manner and that it is fit for habitation. Such warranties arise by operation of law, independent of any contractual representations. Although this court has not heretofore ruled on whether implied warranties extend from a builder of a residential unit to the initial purchaser-user when the builder is not also the seller, logic requires such a finding. This court having previously found an implied warranty exists from the builder/vendor of a new house to his vendee (herein the developer), sees no logical reason to limit the builder’s warranty to his immediate vendee. Where the builder knows or should know that that particular purchaser will not be the first user, as in the instant matter, any implied warranties must necessarily extend to the first user-purchaser, herein the appellants. Warranties of habitability and reasonable workmanship are not created by representations of the builder/vendor but rather are implied in law and as such, exist independent of any representations of a builder/vendor. Spivack, 586 A.2d at 405 (citing Ecksel v. Orleans Construction Co., 519 A.2d 1021 (Pa. Super. 1987) and Tyus v. Resta, 476 A.2d 427 (Pa. Super. 1984)). [Emphasis added].

We, therefore, did not find Spivack persuasive and our research could find no other precedent definitively disposing of the issues raised herein.

It is well settled in Pennsylvania that when determining preliminary objections, the court must accept as true all the material facts in the complaint and those inferences which can be reasonably deduced therefrom. See Boyd v. Rockwood Area Sch. Dist., 907 A.2d 1157, 1163 n.8 (Pa. Commw. 2006). However, the court does not have to accept as true “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expression of opinion.” Martin v. Pa. Dep’t of Transp., 556 A.2d 969 (Pa. Commw. 1989). Preliminaiy objections should be sustained only in cases that are “free and clear from doubt.” Bourk v. Kazaras, 746 A.2d 642, 643 (Pa. Super. 2000). Any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723 (Pa. Commw. 2003)

This court should not shirk from the dismissal of a cause of action where, as a matter of law, the proponent cannot prevail due to the absence of an adequate basis in law. Desanctis v. Pritchard, 803 A.2d 230 (Pa. Super. Ct. 2002). Although litigation involving the alleged liability of a builder/vendor of a new dwelling for loss or injuries to direct purchasers has occupied the courts for some time, the attempt to extend a builder’s contractual liability to subsequent purchasers with whom he has no contractual relationship appears to be a fairly recent development. The courts that have considered the matter have generally held that where a remote purchaser can prove actual negligence on the part of a builder/vendor which results in foreseeable injury or loss to the remote purchaser, the remote purchaser may recover. On the other hand, courts have resisted extending an express warranty (with the implied feature of habitability) given by the builder to the original purchaser so as to permit subsequent purchasers to bring suit on the basis of contracts to which they were not parties. Interestingly, in the instant matter, appellant presents a pure and refined instance where the only issue raised for the court’s consideration is the issue of contract.

Judge Stanton Wettick of the Allegheny County Court of Common Pleas waded deeply into the issue in Kapentanovich v. Fox, 20 Pa. D. & C.4th 316 (C.P. Allegheny 1993) where he observed:

The issue that this opinion addresses is whether the implied warranty arising out of the sale of new residential housing extends to remote purchasers.
In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 111 (1972), the Pennsylvania Supreme Court concluded that the caveat emptor rule as applied to new houses is an anachronism out of harmony with modem home building practices and held that a builder/vendor impliedly warrants that the house that he has built and is selling is constructed in a reasonable workmanlike manner and that it is fit for the purpose intended-habitation. Since 1972, the Pennsylvania Superior Court has consistently looked to the underlying rationale for the Elderkin opinion in deciding the scope of the implied warranty of reasonable workmanship and habitability. See e.g., Groff v. Pete Kingsley Building, Inc., 543 A.2d 128 (1988); Tyus v. Resta, 476 A.2d 427 (1984).
Defendants are in the business of constructing and selling houses. They completed the house that is the subject of this litigation in March 1989. Plaintiffs are the second or third owners of this house. They did not purchase the house from defendants. Defendants did not construct the house for plaintiffs.
Plaintiffs allege that defendants breached the implied warranty of reasonable workmanship and habitability by their failure to construct the foundation for the front porch of the house in a proper manner. They seek to recover the money that they will expend to correct these construction defects.
Defendants have filed preliminary objections in the nature of a demurrer that are the subject of this opinion and order of court. The basis for the preliminary objections is that the implied warranty of reasonable workmanship and habitability does not extend to remote purchasers.

Judge Wettick, in his very scholarly opinion explores the depths of the public policy that led to the creation of the principle of implied warranties of habitability in the construction of residential dwellings that benefits direct purchasers. Judge Wettick saw no reason why the benefits provided to direct purchasers should not accrue to the benefit of subsequent purchasers as the same compelling forces apply to the subsequent purchaser who buys within the six year statute of limitations that apply in contract disputes involving real property as opposed to goods.

As compelling as Judge Wettick’s explication of the issue may be, under the state of the law as it exists today, it simply does not follow that the fact that there is a latent defect in a newly constructed residential dwelling, that the builder acted negligently. The public policy to place the burden of risk on the builder by extending the impliedly contracted for warranty of habitability has not yet been established. The builder is not a guarantor or warrantor for all buyers within the line of title based on the original contract of warranty. As a matter of public policy, this issue is of particular importance in light of the common practice of insurers to exclude latent defects in coverage questions for property insurance. Rorer Group Inc. v. Ins. Co. of N. Am., 655 A.2d 123, (Pa. Super. 1995) (where latent defects caused physical damages even where separate endorsements were purchased for similar types of damages). The question then is one of policy as to who will bear the burden for damages caused by latent defects not reasonably discoverable by prudent buyers of relatively new residential dwellings.

Damages caused where an insured’s home was damaged when water intruded into the basement during heavy rains because of the geometry of the roof and gutter system have been excluded for insurance purposes on the basis of latency of the causative agent. Many policies do not define “latent defect” but Webster’s Third New International Dictionary defines the adjective, “latent” as follows: “existing in hidden, dormant, or repressed form, but usually capable of being evoked, expressed, or brought to light; existing in posse; not manifest; potential.”

The instant appellant attached a report of their expert to their complaint who stated that the water intrusion was caused by visible “kick out flashing” and improper caulking and sealing that resulted in cracks, photographs of which were included in the expert’s report. The result of these defects resulted in the intrusion of moisture into the wood sheathing beneath the stuccoed exterior ultimately resulting in degradation of the wood substructure. Whether the defect was latent because it was unapparent upon reasonable inspection, but discoverable only after a post-failure examination by an expert; or, was some inherent defect in materials used that could not be discovered by any known or customary test and does not include faulty design or construction; or, was a defect that was hidden and not readily observable or discoverable to any but the most searching examination, cannot be determined. But, based on the form of appellant’s claims that omitted claims in negligence or claims of ambiguity in the contract on the issue of intended recognition of third party beneficiaries, appellant was satisfied that the defects were latent and apparently were not caused by the Cutler Group’s negligence. The question, therefore, becomes one of whether on the basis of public policy, the courts may impose an implied contractual duty on the builder, independent of any direct contract; and independent of any negligent conduct on the part of the builder to construct a home without latent defects for the benefit of subsequent purchasers. Other jurisdictions have concluded that based upon public policy considerations necessary to protect inexperienced home buyers from overreaching by more knowledgeable builders, that they would extend the protections to buyers particularly given that the purchase of a residence in most cases being the most significant investment in the purchaser’s lifetime. Colorado Homes, Ltd. v. Loerch-Wilson, 43 P.3d 718 (Colo. Ct. App. 2001). That question has not been broached by our appellate courts and any such policy must emanate from the higher level of our courts.

The absence of specific direction to the contrary requires this court to look to traditional contract and tort principles to consider that the lack of a claim by the appellant that the appellee/Cutler Group was negligent and the lack of a contractual obligation of warranty along with the lack of an actionable statement of public policy, under the present state of the law in the Commonwealth of Pennsylvania, the appellant could not prevail.

CONCLUSION

For those reasons, we sustained appellee’s demurrer and dismissed appellant’s complaint.