author: LASH, J.,

text:
    Stauffer/Kelsch v. Gatz

      Paul A. Prince for the plaintiffs.

      Thomas M. Gatz, Christine L. Gatz, David Gatz, and Jean M. Gatz pro se.
    April 6, 2010
   LASH, J.,

Before this court are cross motions for summary judgment. Both sides claim title to real estate, approximately 2.52 acres in size, situate in Union Township, Berks County, Pennsylvania, identified by tax parcel identification number 88-5343-00-43-2552 (parcel 2552). Plaintiffs, Daniel Anthony Stauffer and Paul T. Kelsch (Stauffer/Kelsch), contend that they are the rightful owners, having obtained title through a quiet title action to confirm ownership of real estate purchased at a sheriff sale. Stauffer/Kelsch obtained a final judgment in that action on February 21, 2006. Defendants, Thomas M. Gatz, Christine L. Gatz, David Gatz and Jean M. Gatz, argue that they are the rightful owners through adverse possession. Gatzes, likewise, filed a quiet title action and obtained an order by default, entered on March 7,2006. In the alternative, both sides argue that if they are by law not the rightful owners, their claim is nevertheless superior. Third, both sides contend that the other side’s underlying quiet title action is fatally defective. Argument was held on March 15,2010. For reasons set forth, this court denies both summary judgment motions.

For context and clarity’s sake, we begin by relating the background of the underlying quiet title actions. The Stauffer/Kelsch’s quiet title action arose from a sheriff sale occurring in September 2001. At that time, plaintiff, Daniel A. Stauffer was the successful bidder on real estate owned by the George Lorah estate and described by the sheriff, and subsequently by the Berks County Tax Claim Bureau, as a 2.53 assessed acre parcel with tax parcel identification number 88-5343-00-43-1337 (parcel 1337). A deed from the Berks County Tax Claim Bureau containing the description for parcel 1337 was conveyed to plaintiff Stauffer on September 18, 2002.

Prior to the deed being drafted, plaintiff Stauffer challenged the scope of the transfer, arguing that his purchase should have included both parcel 1337 and parcel 2552, contiguous properties. Plaintiff Stauffer urged that while parcel 2552 was not explicitly described in the George Lorah deed, there was sufficient circumstantial evidence from which an inference could be drawn that parcel 2552 should have been included in the Lorah deed. First, plaintiff Stauffer’s purchase at sheriff sale included “all the property of the George Lorah estate in Union Township.” Secondly, there is no separate recorded history or title chain for parcel 2552 appearing in the Berks County records. Third, a deed in the Lorah chain of title set forth in deed book 81, page 94, Berks County Recorder of Deeds Office, makes reference to a piece of property conveyed to a Lorah predecessor, which deed was not recorded. Further, the deed upon which the Tax Claim Bureau was relying is incomplete, without a closed boundary for parcel 1337; meanwhile, the deed set forth in deed book 81, page 94, described the property boundary in a way which would close and is consistent with inclusion of parcel 2552. Also, a drawing from the Pennsylvania Bureau of Engineering set forth parcel 1337 and parcel 2552 to be one property.

Plaintiff Stauffer attempted to have an amended deed description, containing parcel 2552, issued by the Tax Claim Bureau. The bureau refused and issued a deed on September 18,2002, containing the same legal description as set forth by the sheriff at sheriff’s sale.

On May 9, 2003, plaintiff Stauffer executed a quitclaim deed, as grantor, to himself and plaintiff, Paul T. Kelsch, as grantees. The property described in the main portion of the quitclaim deed is “that certain parcel of land in Union Township, Berks County, Pennsylvania, as set forth in deed dated September 18, 2002, from Susan M. Miller, Director of the Tax Claim Bureau of Berks County, Pennsylvania . . .; which is more fully described in exhibit4 A’ attached hereto and made a part hereof.” [not published herein] However, the description attached as exhibit44 A” differs from the description set forth in the Tax Claim Bureau deed executed on September 18, 2002, providing instead a description encompassing both parcel 1337 and parcel 2552, prepared by a surveyor at Stauffer/Kelsch’s request.

On November 10, 2005, Stauffer/Kelsch filed their quiet title action. The relief sought was, among other things, the ownership and entitlement to the quiet and peaceful possession of property obtained at sheriff sale. In identifying the property, Stauffer/Kelsch cited the legal description provided by their surveyor, Andrew Kent, containing both parcel 1337 and parcel 2552. Stauffer/Kelsch named as defendants: “John Penn, Thomas Penn, and Richard Penn — and—estate of George K. Lorah, their heirs, successors in title, personal representatives or assigns and any unknown persons having or claiming an interest in a certain parcel of land in Union Township, Berks County, Pennsylvania, described in assignment dated April 18, 1878, Berks County MBV 22, page 644.” Stauffer/ Kelsch did not name Gatzes, nor otherwise notify them of the existence of the quiet title action. On November 15, 2005, the common pleas court entered an order permitting Stauffer/Kelsch to provide service upon the defendants named in the suit by publication. There was no response or challenge to the complaint and, accordingly, on January 13, 2006 the court entered an order by default in favor of Stauffer/Kelsch and against the named defendants. The order was reduced to judgment on February 21, 2006.

Gatzes’ underlying quiet title action was filed by defendant, Thomas M. Gatz, on January 6, 2006, subsequent to the filing of the Stauffer/Kelsch quiet title action but prior to Stauffer/Kelsch obtaining their order by default or subsequent judgment. According to the complaint, David Gatz and Jean M. Gatz owned a parcel in close proximity to parcel 2552 for a period of 29 years, then conveyed their parcel to their son, Thomas M. Gatz, in 2005. During the course of Gatzes’ ownership of their parcel, Thomas M. Gatz alleges that Gatzes have been in “exclusive, open, notorious, hostile and adverse possession” of parcel 2552, utilizing parcel 2552 for access to the parcel they own. Thomas M. Gatz named William Penn and Thomas Penn, their heirs, successors in title, personal representatives or assigns, and any unknown persons having or claiming an apparent interest in the premises, but did not name Stauffer/Kelsch, nor notify them of the existence of the Gatz quiet title action. On January 10, 2006, the Berks County court granted Thomas M. Gatz’ motion for service by publication on the named defendants, which service was duly performed. On March 7, 2006, the Berks County court entered a final order, granting the relief sought. However, Thomas M. Gatz never reduced the order to judgment and, accordingly, on January 7, 2008, a termination notice was issued by the prothonotary of Berks County, in accordance with Pennsylvania Rule of Judicial Administration 1901. The case was terminated in accordance with that rule on April 8, 2008. On July 8,2009, Thomas M. Gatz filed a motion to reopen the quiet title action, which motion was denied.

Both of the underlying quiet title actions contain irregularities which compromise the strength of their position in the within action. The Stauffer/Kelsch quiet title action contemplates relief under Pa.R.C.P. 1061 (d) relating to obtaining possession of land sold at a judicial or tax sale. The scope of the quiet title action is defined by the terms of the sale. According to the sheriff and Tax Claim Bureau, parcel 1337 was the land being offered for sale. No mention was made of parcel 2552. Assuming, for the sake of argument, that Stauffer/Kelsch was correct and that parcel 2552 should rightfully have been included in the sale of the Lorah estate, they were nevertheless without authority to change the legal description through a quitclaim deed, then later represent in the quiet title action that the substituted property description was the same property as described in the sheriff sale. A change in a legal description in a deed, as done here, can only be performed by the court after a hearing. Accordingly, Stauffer/Kelsch’s claim to parcel 2552 would have to be raised under a separate legal theory, requiring additional averments. At the least, a separate count to the complaint should have been included, if not the filing of a separate quiet title action. The complaint that was filed was misleading and insufficient.

The Gatz quiet title action also has deficiencies. For one, Stauffer/Kelsch obtained a judgment on their quiet title action prior to any relief being granted to Thomas M. Gatz. More importantly, Thomas M. Gatz never secured a judgment, only obtaining the default order of March 7, 2006. As no judgment was entered and no further action was taken, the quiet title action was ultimately terminated, the motion to reopen the case was denied, and no appeal was filed. Accordingly, Gatzes cannot rely on the default order obtained on March 7, 2006 as a basis for claiming title to parcel 2552.

However, the most serious flaw of the underlying actions concerns each side’s failure to name or notify the other side. If the decision not to join a party constitutes a failure to join an indispensable party, then the relief ultimately obtained is null and void, for the court is without jurisdiction to grant relief. Cry Inc. v. Mill Service Inc., 536 Pa. 462, 468, 640 A.2d 372, 375 (1994); In re Estate of Moore, 871 A.2d 196, 202-203 (Pa. Super. 2005). In Moore, the Superior Court outlines the law in determining whether a party is indispensable, stating:

“A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights. City of Philadelphia v. Commonwealth of Pennsylvania, 575 Pa. 542, 567, 838 A.2d 566, 581 (2003). Also, a party is said to be indispensable ‘when he has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience.’ Miller v. Benjamin Coal Company, 425 Pa. Super. 316, 625 A.2d 66, 67-68 (1993)....
“The basic inquiry in determining whether a party is indispensable concerns whether justice can be done in the absence of him or her. City of Philadelphia, supra at 567, 838 A.2d at 581. We also consider the following:
“(1) Do absent parties have a right or interest related to the claim?
“(2) If so, what is the nature of the right or interest?
“(3) Isthat right or interest essential to the merits of the issue?
“(4) Can justice be afforded without violating the due process rights of absent parties?
“Centolanza, [v. Lehigh Valley Dairies, 540 Pa. 398, 403, 658 A.2d 336, 338-39 (1995)].
“Generally, it is true that ‘the owner of real estate is an indispensable party to proceedings seeking to transfer title to the property to another and culminating in an order purportedly vesting title in another.’ See Nicoletti v. Allegheny County Airport Authority, 841 A.2d 156, 163 (Pa. Commw. 2004); see also, Miller, supra at 68 (stating that where the object of a bill is to divest a title to property, the presence of those holding or claiming such title is indispensable).”

Looking first at the Gatz quiet title action, it is clear that Stauffer/Kelsch were indispensable parties and should have been joined. Stauffer/Kelsch’s argument that the purchase of all the real estate owned by the George Lorah estate included parcel 2552 has arguable merit. Further, Stauffer/Kelsch’s claims had already been asserted in their own quiet title action, and they had obtained a judgment prior to any relief being obtained by Thomas M. Gatz. The order entered by Berks County court on March 7, 2006 in favor of Thomas M. Gatz is, therefore, void for want of jurisdiction.Tuming then to Gatzes’ motion for summary judgment, we find that the motion must be denied. Gatzes cannot rely on the relief obtained under the Gatz quiet title action because the order of March 7, 2006 is void, and because the action was terminated without a judgment being entered. Whether they have a claim on the basis of adverse possession is a question of fact, which must be resolved at trial. Stauffer/Kelsch allege that parcel 2552 is unenclosed woodland. If that is true, Gatzes would have to establish actual possession of the woodland by residence or cultivation of a part of the tract of land to which the woodland belongs. Moore v. Duran, 455 Pa. Super. 124, 137, 687 A.2d 822, 828 (1996). Even assuming the land is not unenclosed woodland, Gatzes would, nevertheless, have to establish that their possession was actual, continuous, exclusive, visible, notorious, distinct, hostile and for a period of at least 21 years. The record is insufficient to sustain Gatzes’ burden. Accordingly, Gatzes’ motion for summary judgment is denied.

We turn then to the issue of whether Stauffer/Kelsch should have joined Gatzes as indispensable parties in the Stauffer quiet title action, which, for reasons set forth, turns on whether Gatzes have a viable adverse possession claim to parcel 2552. Again, this is a factual determination, one that cannot be resolved from this record. Stauffer/Kelsch’s motion for summary judgment must also be denied. Examination must be made at trial to determine whether Gatzes’ adverse possession claim is sufficient to qualify them as an indispensable party, and ultimately, whether the claim is superior to Stauffer/ Kelsch’s claim.

For trial purposes then, the inquiry shall proceed as follows:

First, whether Gatzes should have been joined as indispensable parties in the Stauffer/Kelsch quiet title action. If the answer is “no”, the judgment entered in favor of Stauffer/Kelsch on February 21, 2006 is valid. If the answer is “yes”, the February 21,2006 order shall be declared void. In either event, the matter will then proceed to determine whether Gatzes’ claim for adverse possession is superior to Stauffer/Kelsch’s claim. If the answer is “yes”, judgment will be entered in favor of Gatzes. If the answer is “no”, then Gatzes will be deemed to have no claim to parcel 2552. If Gatzes have no claim and if the Stauffer/Kelsch judgment remains valid, then Stauffer/Kelsch will be declared rightful owners of parcel 2552. If the judgment is void, the question that will remain is whether Stauffer/Kelsch will be able to establish a claim to parcel 2552 without benefit of reliance on the judgment.

We enter the following order:

ORDER

And now, April 6, 2010, upon consideration of the motion of plaintiffs, Daniel Anthony Stauffer and Paul T. Kelsch, for summary judgment and the corresponding motion of defendants, Thomas M. Gatz, Christine L. Gatz, David Gatz and Jean M. Gatz, for summary judgment, responses thereto, briefs filed by the parties, review of the record, and after argument held, both motions are hereby denied.

      . The voiding of the order for lack of jurisdiction and the termination for inactivity does not preclude Gatzes, under collateral estoppel or res judicata principles, from asserting a claim for adverse possession.


source: Caselaw Access Project

author: GILMAN, J.,

license: Public Domain

text:
    In re Tanner

      Edward Rudolph, for condemnor.

      G. Michael Carr, for condemnees.
    March 23, 2010
   GILMAN, J.,

In this eminent domain action the condemnees, James C. and Lette J. Tanner have appealed this court’s order of December 30, 2009 which denied the Tanners’ petition for reimbursement of fees and costs.

It is important to understand the history between these parties which brings us to this appeal. The Tanners are the owners, in fee, of a parcel of land in Northampton Township identified as Bucks County tax parcel 31-1-15 (the land). On August 22,2000, the Northampton Township Municipal Authority (the Municipal Authority) purchased a 5.91 acre parcel of the Tanners’ overall 49.674 acres of land which was and continues to be operated as a retail nursery. There was an agreement of sale and the parcel was purchased for $ 1,260,000. The agreement of sale contained an acknowledgment that part of the purchase price was in consideration for the Tanners’ future permitted uses of the remaining parcel of approximately 44 acres. On February 20,2001, the parties also entered into a declaration of restrictions and covenants (restrictive covenant) for the land detailing the future uses permitted as well as the Municipal Authority’s intention to construct and operate a sanitary sewer pump station.

On March 3, 2008, the Municipal Authority filed a declaration of taking whereby the Municipal Authority condemned, in fee simple, a 1.37 acre portion of the Tanners’ property necessary for the construction and operation of a sanitary sewer pump station. The declaration of taking stated: “[t]he purpose of the condemnation herein is to provide lands upon which a sanitary sewer pumping station and other ancillary facilities will be installed or constructed and operated for the purpose of supplying of sanitary sewer to the public and in furtherance of the purposes of the Authority and is under and subject to a variable width permanent access and egress easement to be granted and retained by the condemnees td gain access to and from portions of their property.”

On July 23,2008, the Tanners filed preliminary objections to the taking.

The Pennsylvania Eminent Domain Code 26 Pa.C.S. §306(a)(3); limits the circumstances pursuant to which preliminary objections may be filed:

“(a) Filing and exclusive method of challenging certain matters.—
“(3) Preliminary objections shall be limited to and shall be the exclusive method of challenging:
“(i) The power or right of the condemnor to appropriate the condemned property unless it has been previously adjudicated.
“(ii) The sufficiency of the security.
“(iii) The declaration of taking.
“(iv) Any other procedure followed by the condemnor.”

At the outset, the parties disputed whether the preliminary objections raised by the Tanners were within the parameters of this section. Contending the objections did not fall within any of the categories, the Municipal Authority asserted that the power to condemn is clearly vested pursuant to the Municipality Authorities Act at 53 Pa.C.S. §5607(d), which states as follows:

“(d) Powers. — Every authority may exercise all powers necessary or convenient for the carrying out of the purposes set forth in this section, including, but without limiting the generality of the foregoing, the following rights and powers....
“(4) To acquire, purchase, hold, lease as lessee and use any franchise, property, real, personal or mixed, tangible or intangible, or any interest therein necessary or desirable for carrying out the purposes of the Authority, and to see, lease as lessor, transfer and dispose of any property or interest therein at any time acquired by it.”

The Municipal Authority argues the instant taking is proper under any of several theories, including: (1) the taking is for a public purpose (sanitary sewer system for people of the county), which is exactly the power for which eminent domain is designed, (2) even if the restrictive covenant applied, only the Municipal Authority has the authority to enforce any of the restrictions based on the language contained therein, (3) an entity with eminent domain power cannot by contract or agreement give that away, therefore the restrictive covenant could not have addressed or controlled that issue, and (4) the restrictive covenant does not state that there shall not be a future exercise of eminent domain on the land.

In contrast, although not specifically demarcated as such, we presume the Tanners’ assertion that the existing restrictive covenant would prohibit the taking was an attempt to bring the objections with subsection (i) of section 306(a)(3). A review of the instant restrictive covenant reflects no limitation on any future powers of eminent domain. Furthermore, this argument fails since pursuant to well-established Pennsylvania law, “[t]he power of eminent domain is inalienable and cannot be surrendered, even by legislation, to say nothing of the power of other governmental agencies to impair or bargain it away. . . . [N]o legislature can bind itself or its successors not to exercise this power when public necessity and convenience require it.” In re Condemnation of 110 Washington Street, Borough of Conshohocken, Pennsylvania, by the Redevelopment Authority of the County of Montgomery, for Urban Renewal Purposes, 767 A.2d 1154, 1159-60 (Pa. Commw. 2001). (citations omitted)

The Tanners’ preliminary objections also assert the taking was not for a public purpose, and that there was no provision in the restrictive covenant for development of the condemned property as a sanitary sewer pumping station, including the ancillary facilities. The Tanners’ assertion that a sanitary sewer pumping station is not a public purpose defies logic, and is an argument without merit. Additionally, we note while this instant taking referred to an additional 1.37 acres not previously addressed in the dealings between these parties, the restrictive covenant at paragraph 2 states:

“The rights conveyed to the Authority by this declaration are intended to provide protection to the Authority related to its proposed construction and operation of a certain sanitary sewer pump station facility on a property adjacent to the land and various sanitary sewer and public water lines anticipated to be installed on the land. The declaration does not create ownership rights in the Authority, and the grantors will hold the Authority harmless, and will indemnify the Authority against all claims of property damage or personal injury which are asserted against the Authority by any person or entity by reason of the existence of this declaration.”

Based upon the laws of this Commonwealth as applied to the facts of the present case, the preliminary objections filed by the Tanners were denied by Judge Rufe on October 8, 2008.

Notwithstanding the above discussion, and unrelated to proceedings before this court, on November 7, 2008, the Municipal Authority withdrew the condemnation by filing a declaration of relinquishment pursuant to 26 Pa.C.S. §308(a). Thereafter, the Tanners filed a petition on November 20, 2008 requesting a rule to show cause why they should not be reimbursed for their costs and expenses incurred in relation to the previously anticipated taking. That issue was praeciped before this court on October 29, 2009. The court denied the Tanners’ petition by order dated December 30,2009. It is that order which has been appealed and which is addressed herein.

In support of the petition for reimbursement, the Tanners, as condemnees, relied on the Eminent Domain Code, 26 Pa.C.S. §308(d):

“(d) Costs and expenses: — Where condemned property is relinquished, the condemnee shall be reimbursed by the condemnor for reasonable costs and expenses as provided in section 306(g) (relating to preliminary objections).

26 Pa.C.S. §306(g):

“Costs and expenses: — (1) If preliminary objections which have the effect of terminating the condemnation are sustained, the condemnor shall reimburse the condemnee for reasonable appraisal, attorney and engineering fees and other costs and expenses actually incurred because of the condemnation proceedings.
“(2) The court shall assess costs and expenses under this subsection.”

In their effort to support their petition for reimbursement, the Tanners disregard the fact that the statutory language relates to preliminary objections that have been sustained. Instead, their argument unjustifiably leaps straight to the language of condemnations which have been terminated. The element of sustained preliminary objections, which is essential and which is applicable here, is ignored by the Tanners.

The Tanners refer to this statutory language as non-discretionary and as imposing a mandatory duty upon the Municipal Authority for reimbursement of costs to condemnees where the condemnation has been terminated. However, this is not the legal standard by which reimbursement of costs is determined. The relinquishment and resulting termination of this condemnation was not the result of sustained preliminary obj ections, so there is no authority for this court to impose such a requirement on the Municipal Authority.

Based on our review and the discussion above, we provide this opinion in support of the decision rendered by the Honorable John J. Rufe on December 30, 2009, and we recommend that Judge Rufe’s order be affirmed.

      . The order which is the subject of this appeal was entered by the Honorable John J. Rufe, now Senior Judge on the Bucks County Court of Common Pleas bench. The record has been reviewed and this opinion authored by the undersigned.


author: JOHNSON, J.,

text:
    Denisco v. Green

      St even J. Margolis, for plaintiff.

      John S. Tucci, for defendant.
    March 1, 2010
   JOHNSON, J.,

Before the court for consideration is the motion for post-trial relief of plaintiff, Karen Denisco filed on September 24, 2009. The court heard argument on this motion on February 12, 2010.

This action arose from a motor vehicle accident that occurred between the parties. A jury trial was held in this matter on September 9, 2009 through September 16, 2009, after which the jury returned a verdict finding negligence on the part of the defendant, but that said negligence was not a factual cause of the plaintiff’s injuries. The plaintiff filed timely post-trial motions on September 24, 2009.

The court will address below each post-trial issue raised by the plaintiff:

I. MOTION FOR NEW TRIAL: STANDARD OF REVIEW

It is well-settled law in Pennsylvania that a new trial should only be granted where a jury’s verdict shocks one’s sense of justice because it is so contrary to the evidence admitted at trial. Carroll v. Avallone, 595 Pa. 676, 680, 939 A.2d 872, 874 (2007). It is the province of the jury to assess the worth of all testimony presented and the jury is free to believe all, some or none of the witness testimony presented at trial. Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). The jury’s verdict may be set aside if it is the product of passion, prejudice, partiality or corruption or if it is clear the verdict bears no reasonable relationship to the loss suffered by the plaintiff based on the uncontroverted evidence presented. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994).

II. ISSUES RAISED BY THE PLAINTIFF

a. Motion for a New Trial as to Damages Only Due To the Defendant’s “Adoption” of Causation Testimony

The plaintiff seeks the award of a new trial on the issue of damages, arguing that by not calling a medical expert in this case and making certain statements in the closing argument, the defendant “adopted” the opinions of the plaintiff’s expert, Dr. Mauthe, specifically that the plaintiff’s alleged injuries were caused by the subject accident.

The plaintiff claims that, because the defendant elected not to present an expert to contradict Dr. Mauthe, the plaintiff’s evidence was uncontroverted. However, the Pennsylvania Supreme Court rejected the “proposition that the lack of an expert counter-opinion renders the first expert’s opinion uncontroverted,” requiring the award of a new trial. Carroll, supra at 681, 939 A.2d at 875. The defendant in this case had no obligation to present expert evidence to defeat the plaintiff’s claim, since a jury “may reject any evidence offered, even if uncontroverted” and “is not obligated to believe or disbelieve any evidence presented at trial, including an expert’s opinion.” Id. However, a jury cannot base its verdict on “whim or caprice,” including reaching a verdict contrary to an uncontroverted issue. Id.

The issues of causation and injury in this case, however, were not uncontested. The defendant challenged the facts underpinning Dr. Mauthe’s opinions on injury and causation during cross-examination, therefore providing grounds for the jury to reject Dr. Mauthe’s opinion. For example, Dr. Mauthe acknowledged that he had only seen the plaintiff three times in the five years following the subject December 2003 accident: once in the spring of 2004, once in 2007 and once in 2008. Mauthe trial dep., 8/31/09, at pp. 37-38. Dr. Mauthe admitted that, at the time of the 2004 visit, the plaintiff only complained of “right flank pain,” “under bottom rib,” which she experienced “while running” that started in September 2003, four months before the subject accident. Id. at pp. 42-43, 50-54. Dr. Mauthe also conceded that, at the time of the April 2004 visit, the plaintiff answered “no” to all questions concerning any complaints involving her arms, including her left arm' and shoulder, which were at issue in this case. Id. at pp. 43, 44, 46. In fact, she stated that the pain that brought her to. the April 2004 visit had developed in September 2003 and that it had “nothing to do with the accident.” Id. at pp. 50-54.

Additionally, the defendant’s counsel elicited admissions from Dr. Mauthe that the plaintiff had five or six MRI studies over the course of the last several years that were all normal. Id. at pp. 54-55. Dr. Mauthe also conceded that there were “lots” of causes of brachial plexopathies, and that they can also be idiopathic, the result of “the nervous system attacking] itself,” a condition that “just happen[s] on its own.” Id. at p. 58. Dr. Mauthe stated that EMG studies had been performed and that the one abnormal EMG study he could point to, did not, in and of itself, suggest any particular cause or relate to the subject accident. Id. at p. 63. Finally, Dr. Mauthe conceded that the medical records he reviewed for the post-accident period documented normal neck rotation, a negative Adson’s test for thoracic outlet syndrome, although a positive subj ective test for the condition, normal strength, reflexes and normal findings on other tests related to thoracic outlet syndrome and bronchial plexopathy. Id. at pp. 64-75.

Despite the fact that the defendant elicited cross-examination testimony from Dr. Mauthe that contradicts Dr. Mauthe’s causation opinion, the plaintiff argues that the defendant adopted Dr. Mauthe’s opinion on the contested issues of causation or the existence of thoracic outlet or brachial plexus injury by defense counsel making a statement in closing that he was doing so. The subject statement was “I decided to go with Dr. Mauthe in this case, as the expert.” N.T. 9/16/2009 at p. 105. However, a complete reading of the introductory statement by defense counsel reveals that he also stated, “I think he was more helpful to my case as opposed to the plaintiff’s case as a result of the number of questions that I asked.” Id. Following his introductory statements regarding Dr. Mauthe, defense counsel reminded the jury of Dr. Mauthe’s concessions and admissions on cross-examination, including his admission that “there was no evidence of true neuro [genic] thoracic outlet syndrome” in the plaintiff. Id. at p. 109. Defense counsel also asked the jury to remember that, although Dr. Mauthe suggested that the plaintiff had a brachial plexopathy, Dr. Mauthe conceded that there were many causes of brachial plexopathy, and that the condition could be idiopathic. Id. at pp. 109-10. Finally, counsel also read into the record more detailed admissions by Dr. Mauthe regarding the multiple causes of brachial plexopathy and the EMG study. Id. at pp. 113-15.

It appears clear to the court that the opinion of Dr. Mauthe was contested and that the defendant did not adopt said opinion in defense counsel’s closing statement. Therefore, this motion for a new trial based on the argument that the issue of allegedly uncontested evidence is denied.

b. Motion for a New Trial as to Damages Only Based On the Admission of Testimony of Defense Vocational Expert, Jasen Walker Ed.D., Regarding Prior Medical Conditions

The plaintiff argues that she is entitled to a new trial on damages on the ground that the defendant’s vocational rehabilitation expert, Dr. Jasen Walker “was permitted to testify as to prior medical conditions of the plaintiff” from his review of medical records and testimony and reports of the plaintiff’s experts and others, when the defendant had not called a medical expert to support a “medical impairment.” Plaintiff’s brief in support of post-trial motion, pp. 11-13. Specifically, she challenges Dr. Walker’s discussion of the plaintiff’s medical records relied on by the expert, citing select pages of testimony to support this challenge. Id., referring to N.T 9/15/ 2009 at pp. 161-163.

Both the plaintiff’s vocational rehabilitation expert, Dr. O’Toole, and the defendant’s vocational rehabilitation expert, Dr. Walker, testified that their opinions as vocational experts were based in part on facts in the medical records. Dr. Walker referred to specific facts relating to the plaintiff’s medical conditions in the same manner as Dr. O’Toole, for the purpose of establishing their impact on the plaintiff’s work life and earnings potential, and not in an attempt to attribute the plaintiff’s alleged injuries from the December 2003 accident to other causes.

Dr. Walker offered opinions, based on his testing and review of medical records and testimony and reports of the plaintiff’s experts that contradicted those of Dr. O’Toole. See e.g. N.T.,9/15/2009 atpp. 180-93. In support of her motion, the plaintiff references the pages of the transcript in which Dr. Walker summarized medical records that documented the plaintiff’s longstanding history of migraine headaches that periodically required her to miss work for days at a time, “problems with neck pain” that had required physical therapy, sleep apnea, irritable bowel syndrome and the plaintiff’s testimony that she had missed work during 2003 and 2004 for treatment of hemangiomas and cysts on her liver that led to her leaving her employment. Id. at pp. 161-63. He also discussed a peroneal nerve problem in her lower leg that arose before the accident. Id. at p. 163.

Dr. O’Toole, the plaintiff’s vocational expert, testified concerning his “comprehensive vocational assessment” and that he offered opinions on earning capacity as a vocational expert, discussing the same medical issues, and based on the same medical records, as Dr. Walker and admitting that his assessment relied on the plaintiff’s medical records. N.T. 9/11/2009 atpp. 205-207, 247.

Under Pa.R.E. 703, an expert is permitted to express opinions that are based in part on materials that are not in evidence, but that are customarily relied upon by experts in the particular field. Beaumont v. ETL Services Inc., 761 A.2d 166 (Pa. Super. 2000). An expert is not only expected to discuss the factual bases for the opinions offered, but “must testify as to the facts or data on which the opinion or inference is based.” Pa.R.E. 705.

Therefore, because the medical records relied upon by Dr. Walker in this case are of the type customarily relief upon by an expert in the same field, the plaintiff’s argument that Dr. Walker’s testimony should have been precluded because it advised the j ury of unrelated medical conditions and was offered without a proper basis, is denied.

c. Motion for New Trial as to Damages Only Based Upon the Admission of Testimony Regarding the Defendant’s Prior Military Service

The plaintiff argues that she is entitled to a new 'trial on damages because the defendant testified regarding prior military service. She argues that this evidence should have been precluded on the basis of relevance and improper character evidence.

Before the defendant testified, the court denied the plaintiff’s motion to preclude testimony regarding prior military service, ruling that the defendant could testify that she was in the military as part of her background, not a full explanation of her military service history, but just regarding what she was doing at the time of the motor vehicle accident. N. T. 09/09/2009 at pp. 26-27. The defendant’s testimony regarding the subject, elicited at the outset of her direct examination, stayed strictly within those parameters, as follows:

“Q.: How were you employed in December 2003?
“A.: I was employed for, for Hydro for 30-some years and also in the military.
“Q.:What did you do for Hydro?
“A.: Administrative assistant....
“Q.: In 2003, what was your position with the Armed Forces?
“A.: I was an administrative specialist and a transportation specialist.” N.T. 09/14/2009 at p. 163.

It appears to the court that this testimony was not, as the plaintiff suggests, evidence of good character. The above testimony referencing employment in the military does not rise to the level of impermissible evidence of good character, but was merely general background information on a party. See Greenberg v. Aetna Insurance Company, 427 Pa. 494, 235 A.2d 582 (1967).

Therefore, the plaintiff’s motion for a new trial based on the admission of testimony regarding the defendant’s military service is denied.

d. Motion for a New Trial as to Damages Only Based Upon Admission of Testimony Regarding Plaintiff’s Prior Motor Vehicle Accidents And Injuries Sustained Therein

The plaintiff did not address this issue in her brief. After review of the trial transcript, it appears to the court that this omission was intentional, as the issue appears moot. However, if the plaintiff did intend to preserve this issue, the motion based on these grounds is denied.

III. CONCLUSION

In conclusion, for all of the reasons stated above, the motion for post-trial relief of plaintiff, Karen Denisco, is denied.

ORDER

And now March 1, 2010, upon consideration of the motion for post-trial relief of plaintiff, Karen Denisco, filed on September 24,2009 and the defendant’s response thereto and after agument thereon;

It is hereby ordered that, for the reasons set forth in the accompanying memorandum opinion, said motion is denied.

      . The plaintiff did not address the issue of the defendant’s decision not to call a medical expert in this case in her brief. However, she did not explicitly state that she was abandoning this arguement. Therefore, the court will address it here.


author: SIBUM, J.,

text:
    J.P. Morgan Chase Bank N.A. v. Toczylowski

      Aaron M. DeAngelo, for plaintiff.

      Jennifer P. Jara, for defendant.
    April 22, 2010
   SIBUM, J.,

Plaintiff J.P. Morgan Chase Bank N. A. commenced this action against defendant for breach of contract of a home equity line of credit. The line of credit is secured by defendant’s property in Maricopa County, Arizona. After the filing of a complaint and preliminary objections, plaintiff filed an amended complaint on December 7,2009. The defendant thereafter filed preliminary objections to the amended complaint raising a motion to dismiss for lack of subject matter jurisdiction, forum non conveniens, and two demurrers based on satisfaction of a lien and attempting to sue the incorrect party, respectively. Plaintiff did not file of record a response to defendant’s preliminary objections.

On February 16, 2010, we granted defendant’s preliminary objection in the nature of a motion to dismiss for lack of subject matter jurisdiction. In rendering our decision, we understood the facts of record to be such that plaintiff was the party that foreclosed upon defendant’s Arizona property and held that the foreclosure proceeding limited the relief available to plaintiff to a deficiency judgment action which must occur in Arizona pursuant to the Deficiency Judgment Act of Pennsylvania. 42 Pa.C.S. §8103(a).

Thereafter, plaintiff filed a motion for reconsideration of our February 16,2010 decision. In its motion, plaintiff clearly specified that it was not the foreclosing party in the Arizona proceedings, that the foreclosure action was brought by a separate and distinct creditor unrelated to plaintiff, and that the plaintiff received no value from the sale in Arizona to date.

Upon review of plaintiff’s motion, we granted reconsideration. After hearing on the motion and consideration of the briefs submitted by the parties in support of their respective positions, we are now ready to issue our decision.

DISCUSSION

1. Defendant’s Motion To Dismiss for Lack of Subject Matter Jurisdiction

Defendant first asks the court to dismiss plaintiff’s amended complaint, averring that this court does not have jurisdiction over the subject matter of this case. “When preliminary objections raise a question of subject matter jurisdiction, the trial court’s function is to determine whether the law will bar recovery due to a lack of subject matter jurisdiction.” Arbor Resources LLP v. Nockamixon Township, 973 A.2d 1036, 1042 n.5 (Pa. Commw. 2009). For purposes of ruling on defendant’s preliminary objection raising a lack of subject matter jurisdiction, we will accept as true all well-pleaded facts, together with reasonable inferences which may be drawn from those facts. Bailey v. Storlazzi, 729 A.2d 1206, 1214 (Pa. Super. 1999).

Defendant alleges that the home equity line of credit was secured by defendant’s real property in Arizona and that the property has already been foreclosed upon. In his brief, defendant asserts that plaintiff is now limited under the Deficiency Judgment Act to seeking a deficiency judgment against defendant and that such an action must occur in Maricopa County, Arizona — the county in which the defendant’s real property is located.

“Under Pennsylvania law, every judgment creditor who forces real estate to be sold in an execution sale must comply with the [Deficiency Judgment Act] to protect its claim to any unpaid balance remaining after the sale.” In re Zinchiak, 406 F.3d 214, 222 (3d Cir. 2005). The Deficiency Judgment Act of Pennsylvania provides as follows:

“Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.” 42 Pa.C.S. §8103(a).

Under this Act, a petition to fix the fair market value of property “should be addressed [by] the court having jurisdiction.” Dearnley v. Survetnick, 360 Pa. 572, 576, 63 A.2d 66, 69 (1949). (emphasis added)

The Deficiency Judgment Act applies to every judgment creditor who forces real estate to be sold in an execution sale. However, as was made clear in plaintiff’s motion for reconsideration and at hearing on this matter on March 25, 2010, plaintiff did not foreclose on the defendant’s property. Rather, the first lien holder foreclosed. Plaintiff, as second lien holder, was not involved in the foreclosure proceedings and has not received any benefit from the sale. As such, plaintiff is not limited to seeking relief under the Act and may proceed to pursue a breach of contract action against defendant here in Pennsylvania. Further, defendant is a resident and citizen of Pennsylvania and plaintiff is a corporation registered to do business in the Commonwealth. As such, the court and this Commonwealth have jurisdiction over this matter and the parties. Defendant’s first preliminary objection will be overruled.

2. Defendant’s Motion To Transfer for Forum Non Conveniens

The second preliminary obj ection raised by defendant is in the nature of a motion to transfer for forum non conveniens. Defendant argues that all documentation pertaining to the relevant trustee sale, the property, and all transactions regarding the property are located in Arizona. Defendant’s arguments are misplaced.

The doctrine of forum non conveniens, codified at 42 Pa.C.S. §5322(e), permits a trial court to dismiss a case, even where the jurisdictional requirements are met, when the court determines that “in the interest of substantial justice the matter should be heard in another forum....” 42 Pa.C.S. §5322(e). (emphasis added) In deciding whether to dismiss a suit based on forum non conveniens, the trial court must consider two important factors: (1) a plaintiff’s choice of the place of the suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff. Jessop v. ACF Industries LLC, 859 A.2d 801, 803 (Pa. Super. 2004). “Furthermore, a court will ... not dismiss for forum non conveniens unless justice strongly militates in favor of relegating the plaintiff to another forum.” Wright v. Aventis Pasteur Inc., 905 A.2d 544 (Pa. Super. 2006). (emphasis in original) In determining whether to grant a transfer of venue based upon forum non conveniens, the trial court must inquire as to whether a plaintiff’s choice of forum is oppressive or vexatious to a defendant. Walls v. Phoenix Insurance Co. 979 A.2d 847 (Pa. Super. 2009).

The court’s analysis of the record compels us to conclude that there is an insufficient basis upon which to find that there are “weighty reasons” to disturb plaintiff’s choice of forum. First, plaintiff and defendant are located here in Pennsylvania, with defendant residing in Monroe County. The choice of venue is neither oppressive nor vexatious to defendant. In fact, the venue appears to be more convenient to defendant than Arizona given defendant’s residence in this county. Second, and perhaps more importantly, it appears that if plaintiff is not permitted to bring this action in Pennsylvania, plaintiff will not have another forum available to it in which to bring its claim.

Defendant argues that venue should be transferred to Arizona since all documentation pertaining to the “relevant trustee sale, the property, and all transactions regarding the property” are located in that state. Defendant cites to Cheeseman v. Lethal Exterminator Inc. 549 Pa. 200, 701 A.2d 156 (1997) in support of his contention. We disagree.

With respect to the trustee sale, the court does not find that information regarding the sale is definitively relevant or necessary to the present matter. As was disclosed in plaintiff’s motion for reconsideration and hearing on the motion, plaintiff was not the party who foreclosed on the premises. Thus, the Pennsylvania Deficiency Judgment Act is inapplicable to this matter. Further, the record does not reveal that all information or transactions regarding the property are located in Arizona. In fact, the record is devoid of such information.

Further, it bears mention that the Pennsylvania Superior Court, in Humes v. Eckerd Corporation, 807 A.2d 290 (Pa. Super. 2002), determined that the “oppressive and vexatious” standard set forth by our Supreme Court in Cheeseman v. Lethal Exterminator Inc., supra, applies only to intrastate forum challenges pursuant to Pa.R.C.P. 1006(d)(1), and not to interstate challenges pursuant to 42 Pa.C.S. §5322(e), as that presented here. Humes v. Eckerd Corporation, at 295. Thus, the standard cited by defendant in support of its argument is misplaced. For these reasons, defendant’s preliminary objection in the nature of a motion to transfer venue for forum non conveniens will be overruled.

3. Demurrer — Legal Insufficiency Discharge/Satisfaction of Lien

Defendant’s third preliminary objection is a demurrer on the grounds that plaintiff may not sue to collect on the home equity loan since the real estate which secured the loan has been sold at trustee sale. Defendant does not cite any legal authority in support of its position. We find the defendant’s argument devoid of merit.

Although there was a trustee sale of the underlying real ¿state in Arizona, the pleadings, when read in the light most favorable to plaintiff, reveal that plaintiff was not the foreclosing party and received no proceeds from this sale. The sale was initiated by the first mortgage holder, an entity separate and distinct from plaintiff. As such, plaintiff’s rights under the home equity line of credit agreement have not been extinguished even though the collateral to the deed of trust has been sold. Even if plaintiff’s claim is now unsecured by real property collateral, plaintiff has the right to pursue collection of the amount owed under the agreement. Plaintiff may no longer be able to proceed in a foreclosure action under the deed of trust, but plaintiff may pursue a breach of contract action for the collection of the monies owed under the home equity line of credit agreement. Defendant’s demurrer will be overruled.

4. Demurrer — Legal Insufficiency for Failure To Name Correct Defendant

Defendant’s fourth preliminary objection is a demurrer for failure of plaintiff to properly identify defendant, Marek Toczylowski, in the body of plaintiff’s first amended complaint. Plaintiff correctly named defendant, Marek Toczylowski in the caption of the complaint, but in paragraph 2 of its complaint erroneously identified the defendant as Max Shindler. Plaintiff also lists defendant, Marek Toczylowski’s address as the address of the defendant in that paragraph. Only the name of the defendant is incorrect.

Pa.R.C.P. 1033 governs amendments of pleadings and provides:

“A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.” 42 Pa.C.S. 1033.

Leave to amend pleadings is to be liberally granted. Stalsitz v. Allentown Hospital, 814 A.2d 766, 776 (Pa. Super. 2002), appeal denied, 578 Pa. 717, 854 A.2d 968 (2004). A party is to be given leave to amend its pleadings when allowing the amendment will not unduly prejudice or surprise the adverse party. Somerset Community Hospital v. Allan B. Mitchell & Associates Inc., 454 Pa. Super. 188, 199, 685 A.2d 141, 147 (1996). Undue prejudice in this analysis has been defined as something more than a detriment to the other party, as any amendment would likely have the effect of harming the adverse party’s interests. The policy underlying this rule of liberal leave to amend is to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 244, 431 A.2d 237, 240 (1981); Gallo v. Yamaha Motor Corp, U.S.A., 335 Pa. Super. 311, 314, 484 A.2d 148, 150 (1984).

However, “[a]n amendment introducing a new cause of action will not be permitted after the statute of limitations has run in favor of a defendant.” Stalsitz, 814 A.2d at 776. (citation omitted) Only if the proposed amendment merely amplifies, as opposed to altering, the cause of action already averred, will it be allowed if the statute of limitations has run. Id.

Defendant Marek Toczylowski is correctly named in all captions and exhibits to the first amended complaint. Although the name is incorrectly listed in the body of the amended complaint, the defendant has not demonstrated that it will suffer prejudice by this action proceeding. The error is harmless and is not appropriate cause to dismiss this action. Plaintiff, in its brief, attached a proposed second amended complaint properly identifying the defendant and requests leave to file same. Defendant’s preliminary objection will be overruled, and plaintiff will be granted leave to file the second amended complaint.

5. Motion for More Specific Pleading

Defendant’s final preliminary objection is a motion for more specific pleading. In his preliminary objection, defendant states, “In the alternative, defendant makes a claim for a more specific pleading.” Pa.R.C.P. 1028(a) (3) provides that preliminaiy objections may be filed for insufficient specificity in a pleading. The content of pleadings is governed by Pa.R.C.P. 1019, which provides, in relevant part, as follows:

“(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.
“(f) Averments of time, place and items of special damage shall be specifically stated.
“(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.
“(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or a copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.” 42 Pa.C.S. §1019.

Pennsylvania is a fact-pleading jurisdiction. Therefore, a complaint must not only provide a defendant with notice of the plaintiff’s claim and the grounds upon which it is based, but it must also formulate the issues by summarizing those facts essential to support the cause of action. Youndt v. First National Bank of Port Allegheny, 868 A.2d 539, 544-45 (Pa. Super. 2005). A pleading is sufficiently specific only if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense.

In both his preliminary objections and supporting brief, defendant fails to specify in what manner plaintiff’s pleading is deficient or what additional specificity it seeks. After review of plaintiff’s first amended complaint, we find that plaintiff has sufficiently set forth specific claims and attached the written contract upon which plaintiff’s cause of action is based — breach of contract. The date and specific terms of the agreement can be found within the averments of the complaint and by reference in the attached exhibit. In short, defendant has sufficient information to prepare an answer to the complaint and to defend against the action. Defendant’s preliminary objection for a more specific pleading will be overruled.

ORDER

And now, April 22, 2010, after hearing on plaintiff’s motion for reconsideration and review of the parties’ briefs, we hereby vacate our opinion and order dated February 16, 2010 previously entered in this matter.

We further order the following with respect to defendant’s preliminary objections:

(1) Defendant’s motion to dismiss for lack of subject matter jurisdiction is overruled.

(2) Defendant’s motion to transfer for forum non conveniens is overruled.

(3) Defendant’s demurrer for legal insufficiency of pleading — discharge/satisfaction of lien is overruled.

(4) Defendant’s demurrer for legal insufficiency of pleading — failure to name correct defendant is overruled. Plaintiff is granted leave to and shall file its second amended complaint as attached to its brief in support of motion for reconsideration within 20 days of the date of this order.

(5) Defendant’s motion for more specific pleading is overruled.

(6) Defendant shall file a responsive pleading to plaintiff’s second amended complaint within 20 days of the date it is filed.

      . It appears to the court that plaintiff faxed a response to defendant’s preliminary objections and supporting brief to our court administrator. The faxed copy was placed in the court’s file, but never docketed inasmuch as our Local Rules of Court do not permit the filing of facsimiles without prior leave of court. 43 J.D.R.C.R 205A(f). No such leave was ever sought or given. As such, the court cannot consider the faxed document since it is not officially of record. The document does not indicate whether plaintiff was the party that foreclosed on defendant’s Arizona property.


author: FORD, J.,

text:
    Hoffman v. Prutzman

      Douglas M. Marinos, for plaintiffs.

      Joel B. Wiener, for defendants.
    April 15, 2010
   FORD, J.,

This suit stems from a dispute among business associates. In 1981, the plaintiff, Donna Hoffman, and the defendants, Roxanne Prutzman and Donna Grimshaw, opened a hair salon known as The Hair Connection. (Unless otherwise indicated in this opinion, “plaintiff” refers to Donna Hoffman and “defendants” refer to Roxanne Prutzman and Donna Grimshaw.) The three women operated The Hair Connection until 2007, when the plaintiff informed the defendants that she intended to retire from the business. From that point forward, the defendants actively excluded the plaintiff from the management of The Hair Connection and refused to pay the plaintiff a sum equal to the value of her interest in the business after she retired. Defendants, without plaintiff’s input, then operated the salon as a limited liability company named The Hair Connection LLC.

Plaintiff contends that The Hair Connection constituted a partnership at the time of her retirement and that the defendants wrongfully excluded her from the partnership. To enforce her rights as a partner, plaintiff brought this suit on behalf of herself and on behalf of the partnership, The Hair Connection. In her amended complaint, plaintiff named her two former business associates as defendants, as well as the limited liability company the two individual defendants formed, The Hair Connection LLC. In their answer to the amended complaint, defendants state that The Hair Connection operated as a joint venture and that defendants had no obligation to account to the plaintiff when she retired from the business. Defendants’ answer includes new matter and defendants stated a counterclaim.

After a bench trial conducted on January 5 and January 6, 2010,1 conclude that The Hair Connection operated as a partnership at the time of plaintiff’s retirement. Additionally, the defendants wrongfully excluded the plaintiff from the partnership. In so doing, defendants breached the fiduciary duty they owed to the plaintiff, their former partner. For the reasons that follow, the plaintiff is entitled to compensatory and punitive damages and the defendants’ counterclaim is denied and dismissed.

FINDINGS OF FACT

On April 20,1981, the plaintiff, Donna Hoffman, and the defendants, Roxanne Prutzman and Donna Grimshaw, entered a written “joint venture agreement” to operate a beauty salon under the name of The Hair Connection. (The agreement is plaintiff’s exhibit no. 1.) The agreement stated that the joint venture would be in effect for a 10-year period unless otherwise terminated. Therefore, the agreement would govern until April 20, 1991. Pursuant to paragraph 18 of the agreement, the parties reserved the right to enter a supplemental agreement to extend the life of the agreement. Such a supplemental agreement had to be executed no later than six months prior to the termination of the agreement.

According to the terms of the agreement, the plaintiff and defendants agreed that each would pay for and provide their own equipment and retain “all such income as she may produce.” Moreover, each woman retained the right to hire an apprentice. The hiring party would be solely responsible for the payment of her apprentice. Each woman agreed to maintain her own book of business. However, each woman agreed to contribute to a capital account to pay for the expense and upkeep of the joint venture. The agreement further stated that each woman had an equal voice in the management of the business.

In 1985, the plaintiff and defendants purchased the assets of an Allentown hair salon owned by Ralph Campetti. Under the purchase* the three women acquired Mr. Campetti’s book of business and sublet under his lease at Fifteenth and Allen Streets in Allentown. Additionally, the plaintiff and defendants employed a manicurist and two hair stylists and sold hair products to the public for the first time.

After the acquisition of the Campetti hair salon, the organization of The Hair Connection changed in some respects. As envisioned in the agreement, each woman still retained all of the proceeds of hair styling she actually performed. The three women began to equally share the profits generated by the sale of hair products and the services of the manicurist. Further, the three women evenly split the house portion of funds generated by the employee hair stylists. The house portion equaled 50 percent of the employee stylists’ proceeds. The cost of operating The Hair Connection was spread evenly among the three women.

The plaintiff and defendants did not sign a supplemental agreement to extend the life of the agreement prior to its expiration on April 20, 1991. Therefore, the joint venture formed by the plaintiff and defendants in 1981 ended at its 10-year anniversary.

After the expiration of the agreement in the spring of 1991, the plaintiff and defendants continued to operate The Hair Connection. The organization of the business remained fundamentally the same from 1985 onward, that is, each woman retained all of the proceeds generated by her own work, while all profits generated from manicures, product sales and employee hair stylists were divided evenly among the three women.

On November 20, 2001, the plaintiff and defendants entered a commercial lease agreement with Fieldstone Associates L.P., to rent the premises owned by Fieldstone at 6750 Iroquois Trail, Suite 4, Allentown, Pennsylvania, 18104. (Plaintiff’s exhibit no. 2.) The three women relocated The Hair Connection to the newly rented premises. The initial term of the lease was five years with an additional three renewal terms of five years each.

At the time they entered this lease, the plaintiff and defendants borrowed approximately $65,000 from Citizens National Bank of Slatington. (Plaintiff’s exhibit no. 5.) On December 18, 2001, the three women borrowed an additional $10,000 from Citizens National Bank of Slatington. They used the loan proceeds to purchase trade fixtures for their new business location and for physical improvements to the leased space.

On November 29, 2004, the plaintiff and defendants entered a business loan agreement with Harleysville National Bank in the amount of $53,170.38 to refinance the balance on the $65,000 loan from Citizens National Bank of Slatington. (Plaintiff’s exhibit no. 6.) They refinanced on the recommendation of Erwin Prutzman, the husband of defendant Roxanne Prutzman who acted as the bookkeeper for The Hair Connection.

In 2006, the plaintiff discussed with the defendants her intention to retire from The Hair Connection at some point in 2007. The plaintiff wanted her retirement to coincide with the end of the initial term of the commercial lease of the premises at Iroquois Trail. The lease was set to expire on April 14, 2007.

On January 22, 2007, the plaintiff hand-delivered to the defendants a letter which stated her desire to retire from The Hair Connection. In the letter, the plaintiff recommended that the accountant for The Hair Connection begin the process of her withdrawal from the business. (Plaintiff’s exhibit no. 7.)

The plaintiff and defendants met with the accountant for The Hair Connection, Louis Gentilotti CPA, CFP, on the same day plaintiff gave the letter announcing her retirement. At the meeting, the parties discussed options whereby the defendants could buy-out the plaintiff’s interest in The Hair Connection. Mr. Gentilotti presented the women with three methods of valuing the plaintiff’s interest in the hair salon. The defendant, Roxanne Prutzman, expressed frustration at the prospect of a buy-out. She insisted that the parties were still bound by the agreement entered in 1981 and that, under the agreement, there was no justification for a buy-out of the plaintiff’s interest in The Hair Connection. According to Ms. Prutzman, Ms. Hoffman should walk away from the business with no compensation for her interest. With this, Mr. Gentilotti told the women that he believed they should seek the advice of legal counsel.

On February 12,2007, the defendants hand-delivered to the plaintiff a copy of a letter prepared by Joel Wiener Esquire, who is defense counsel in this suit. In the letter, Attorney Wiener stated that The Hair Connection was a partnership and that the plaintiff and defendants were jointly and severally liable for the debts of the partnership. (Plaintiff’s exhibit no. 9.)

On February 16, 2007, the defendants formed a limited liability company with the name “The Hair Connection LLC.” (Plaintiff’s exhibit no. 16.) The defendants formed this business entity with no advance notice to or consent from plaintiff.

In April of 2007, the plaintiff attempted to obtain The Hair Connection’s checkbook to draft a check in payment of her quarterly taxes, which was the practice for years among the partners. However, the defendant, Roxanne Prutzman, refused to deliver to the plaintiff The Hair Connection’s checkbook. The formation of the limited liability company, The Hair Connection LLC had still not been revealed to plaintiff.

On April 30, 2007, Attorney Wiener sent Douglas Marinos Esquire, plaintiff’s attorney in this suit, a letter in which he claimed that the plaintiff had been previously advised that “the time for exercise of the option for renewal of The Hair Connection partnership expires today.” Attorney Wiener added that, if the plaintiff wished to “continue the partnership and the use of the space for the partnership,” she needed to sign the lease extension that same day. (Plaintiff’s exhibit no. 11.) Attorney Wiener made no reference to the limited liability company his clients had recently formed.

Contraiy to the assertions contained in defense counsel’s letter of April 30,2007, the defendants never advised the plaintiff on the subject of renewing the commercial lease with Fieldstone until the letter from Attorney Wiener on April 30, 2007. The defendants never delivered the lease renewal to the plaintiff for signing nor sought her input as a partner.

In early June of 2007, the defendants held a meeting with the hair stylists employed at The Hair Connection. The defendants never notified the plaintiff of this meeting and took steps to ensure that plaintiff did not know of the meeting beforehand. At the meeting, the defendants informed the employees of the business dispute that existed between themselves and the plaintiff.

On June 1, 2007, the defendants opened a checking account in the name of “The Hair Connection LLC.” To fund this account, the defendants removed $6,700 from the operating account of the partnership with the plaintiff, The Hair Connection. The defendants later removed an additional $18,500 from the same operating account of the partnership. The defendants did not notify or obtain the consent of their partner, the plaintiff, prior to emptying The Hair Connection’s operating account. Subsequently, defendants used the funds removed from the partnership account to capitalize their newly-formed limited liability company, The Hair Connection LLC.

On June 12,2007, plaintiff’s counsel, Attorney Mari-nos, sent a letter to defense counsel, Attorney Wiener, in which he explained that the plaintiff intended to retire from The Hair Connection effective June 19, 2007. (Plaintiff’s exhibit no. 13.)

Upon the plaintiff’s retirement on June 19, 2007, the defendants took no action to wind down the affairs of The Hair Connection, settle the capital accounts among themselves and the plaintiff or apply the assets of The Hair Connection to satisfy the liabilities of the partnership.

At the time of plaintiff’s retirement, The Hair Connection’s assets in bank accounts, petty cash, security deposits, general supplies and beauty supplies amounted to $24,631. Plaintiff’s one-third share of this figure amounted to $8,210. Additionally, The Hair Connection maintained ownership of its furniture and trade fixtures. The depreciated value of these items equaled $6,340.58. Plaintiff’s one-third share of this amount was $2,113.53. Therefore, the total value of the plaintiff’s interest in the tangible assets and trade fixtures of The Hair Connection at the time of her retirement was $10,323.53.

At the time of her retirement, the good will that the plaintiff brought to The Hair Connection had a value of $4,000.

The liabilities of The Hair Connection at the time of plaintiff’s retirement equaled $40,456. (Plaintiff’s exhibit no. 25.) Plaintiff’s one-third responsibility for this amounted to $13,485.

The value of plaintiff’s interest in the partnership’s tangible assets and good will at the time of her retirement was $12,628.90.

On July 16, 2007, the defendants, through their newly formed limited liability company, The Hair Connection LLC, renewed the lease agreement with Fieldstone for the commercial premises located on Iroquois Trail in Allentown. The plaintiff was never notified of the renewal of the lease nor did she sign the document.

On May 30,2008, after she learned of the various actions taken by defendants without her knowledge, plaintiff demanded an inspection of the books and records of The Hair Connection and The Hair Connection LLC, to determine the value of her interest in the partnership and to ascertain whether the partnership was being properly managed. The defendants declined the plaintiff’s request.

The defendants have possession of and continue to use the name, employees, inventory, equipment, furniture, tools and other tangible assets of the partnership known as The Hair Connection to operate The Hair Connection LLC as a beauty salon.

The defendants intentionally excluded their partner, the plaintiff, from the partnership known as The Hair Connection and have intentionally continued what is, in essence, the business of the partnership through The Hair Connection LLC, without the consent of and without an accounting to the plaintiff.

The defendants knew that their actions in excluding the plaintiff from the management of The Hair Connection violated their duty of fair-dealing with their partner, the plaintiff. They undertook a course that was financially self-serving to the exclusion and detriment of their partner, the plaintiff.

DISCUSSION AND CONCLUSIONS OF LAW

The plaintiff contends that The Hair Connection was a partnership at the time of her retirement and that the defendants wrongfully excluded her from this partnership. In her second amended complaint, she demands damages equal to the value of her interest in The Hair Connection at the time she retired. (Count I of plaintiff’s second amended complaint.) Plaintiff also seeks compensation based on the defendants’ alleged conversion of the partnership property of The Hair Connection. (Count VI of plaintiff’s second amended complaint.) Finally, the plaintiff requests punitive damages based on the defendants’ alleged breach of the fiduciary duty they owed plaintiff. (Count II of plaintiff’s second amended complaint.) Plaintiff’s second amended complaint contained in several counts other than those stated above. At trial, plaintiff’s attorney advised the court that he was not pursuing these other counts.

The defendants argue that The Hair Connection remained a joint venture since its creation. The defendants therefore argue that the defendants had no obligation to account to the plaintiff when she retired from the business. Defendants allege in their counterclaim that plaintiff remains a co-debtor for the debts of The Hair Connection and that she has failed to make any payments on these debts since retiring from the business. The defendants seek damages equal to plaintiff’s share of The Hair Connection’s liabilities.

Partnership

The Uniform Partnership Act, 15 Pa.C.S. §§8301-8365, defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” 15 Pa.C.S. §8311 (a). A partnership agreement need not be in writing: DeMarchis v. D’Amico, 432 Pa. Super. 152, 161, 637 A.2d 1029, 1033 (1994). For a partnership to exist, “there must be clear, mutual assent on the part of two or more persons to form a partnership.” Leprino Foods Co. v. Gress Poultry Inc., 379 F. Supp.2d 650, 655 (M.D. Pa. 2005) (applying Pennsylvania law). A partnership can be found to exist from all of the attending circumstances. Id. In determining whether a partnership exists, “[t]he receipt by a person of a share of the profits of a business is prima facie evidence that he' is a partner in the business . . . .” 15 Pa.C.S. §8312(4).

Conversely, the Pennsylvania Supreme Court defines a joint venture as a “special combination of two or more persons, where, in some specific venture, a profit is jointly sought without any actual partnership or corporate designation.” McRoberts v. Phelps, 391 Pa. 591, 598, 138 A.2d 439, 443 (1958). A joint venture “must arise from a contractual basis, although the contract need not be express but may be implied from the acts and conduct of the parties.” Id. at 598-99, 138 A.2d at 443. Typically, a joint venture is formed to effectuate “a single business transaction rather than a general or continuous transaction.” Id. at 599, 138 A.2d at 444. A joint venture is not a partnership, but an association of parties engaged “in a single business enterprise for profit.” Id. at 600, 138 A.2d at 444.

The agreement entered by the plaintiff and defendants on April 20, 1981, indicated that the three women were forming a joint venture. However, the terms of the agreement demonstrate that the three women intended the joint venture to govern their business relation for a period of 10 years until April 20, 1991. The agreement further specified that, if the plaintiff and defendants wished to extend the joint venture, a supplemental agreement would have to be executed. The plaintiff and defendants did not enter a supplemental agreement to extend the life of the agreement prior to its expiration on April 20, 1991. Therefore, the joint venture formed by the plaintiff and defendants in 1981 ended in 1991.

After the agreement establishing the joint venture expired in 1991, The Hair Connection continued as a business with all of the attributes of a partnership. The business maintained its own checking and savings accounts, used one federal identification number on its tax returns, filed payroll tax returns using The Hair Connection trade name, reported wages and taxes withheld from employees under The Hair Connection trade name, and paid taxes to various tax authorities from one bank account. (Plaintiff’s exhibit no. 25, Loch valuation report, findings, paragraph 12.) Most importantly, from 1985 onward, the plaintiff and the two defendants evenly divided all profits generated from manicures, product sales and employee hair stylists at The Hair Connection. Even defense counsel, in his letter to plaintiff dated February 12, 2007, stated his belief that The Hair Connection constituted a partnership. All of these factors lead to the conclusion that the plaintiff and defendants operated The Hair Connection as a partnership after 1991.

Plaintiff’s Claim to Enforce Her Rights As a Partner

When the plaintiff retired from The Hair Connection on June 19, 2007, the winding up of the partnership should have progressed to conclusion. “The dissolution of a partnership is the change in the relation of the partners caused by any partner ceasing to be associated in the carrying on, as distinguished by the winding up, of the business.” 15 Pa.C.S. §8351. “Dissolution is caused ... [b]y the express will of any partner when no definite term or particular undertaking is specified [in the partnership agreement].” 15 Pa.C.S. §8353(l)(ii). “On dissolution, the partnership is not terminated but continues until the winding up of the partnership affairs is completed.” 15 Pa.C.S. §8352. A partner “who [has] not wrongfully dissolved the partnership ... has the right to wind up the partnership ....” 15 Pa.C.S. §8359.

The plaintiff and defendants operated The Hair Connection as a partnership at will, in that there was no partnership agreement specifying that the partnership would operate for a definite term or until the completion of a particular undertaking. The plaintiff was entitled by statute to retire from the partnership at any time.

After the plaintiff retired from The Hair Connection, the defendants failed to take part in good faith in the process of winding up the partnership as required by law despite plaintiff’s requests. Instead, the defendants wrongfully and intentionally excluded the plaintiff from all management of the partnership, refused to allow plaintiff to inspect partnership records and continued to operate the business (as The Hair Connection LLC) without compensating plaintiff for the value of her interest in the partnership.

The Uniform Partnership Act addresses the rights of a retiring partner when the other partners comprising the partnership elect to continue the business.

“When any partner retires or dies and the business is continued . . . without any settlement of accounts as between him ... and the person or partnership continuing the business, ... he ... as against such persons or partnership may have the value of his interest at the date of dissolution ascertained and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolvedpartnership with interest or, at his option ... in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership. ...” 15 Pa.C.S. §8364. (emphasis added)

Plaintiff was denied this opportunity granted her by statute. Her request for an accounting was refused. She was frozen out of participation in the partnership which was best illustrated by the draining of the partnership account and the meeting held by which all, except plaintiff, were invited by defendants. Then the defendants continued the business of the partnership, but as a limited liability company formed behind the back of plaintiff. Under 15 Pa.C.S. §8364, the plaintiff is entitled to collect from the defendants the value of her interest in The Hair Connection at the date of her retirement.

Plaintiff’s Claim for Conversion

The plaintiff states an alternative theory of recovery by arguing that the defendants wrongfully converted the partnership property of The Hair Connection. According to 15 Pa.C.S. §8342(a), “[a] partner is co-owner with his partners of specific partnership property, holding as a tenant in partnership.” Moreover, “[a] partner... has an equal right with his partners to possess specific partnership property for partnership purposes, but he has no right to possess the property for any other purpose without the consent of his partners. 15 Pa.C.S. §8342(b)(l).

The acts of the defendants amount to a conversion of the partnership property of The Hair Connection. First, the defendants, without notifying plaintiff or gaining her consent, removed all of the funds of the partnership’s savings and checking account and used these funds to capitalize their limited liability company, The Hair Connection LLC. Second, the defendants, again without plaintiff’s consent or knowledge, used the trade fixtures of The Hair Connection to carry on the business of their limited liability company. In forming and operating the limited liability company, the defendants used partnership property to their benefit and to the detriment of their partner, the plaintiff. Defendants had no right to remove funds from the partnership accounts or utilize the fixtures of the partnership for their own benefit without gaining the consent of the plaintiff.

For these reasons, plaintiff is entitled to damages equal to the value of her interest in The Hair Connection at the time of her retirement.

The Value ofPlaintiff’s Interest in The Hair Connection

At trial, the plaintiff presented the expert testimony of Bruce Loch, a certified public accountant and a certified forensic accountant. Mr. Loch offered his expert opinion as to the value of the plaintiff’s interest in The Hair Connection at the time of her retirement on June 19, 2007. Mr. Loch utilized the excess earnings valuation method to measure the plaintiff’s share of the partnership’s tangible assets as well as the good will she brought to the business. The excess earnings valuation method is an accepted accounting method to determine a partner’s share in a business. I use that in the present case. I accept aspects of Mr. Loch’s testimony where it is based on credible evidence. On the other hand, some opinions that he expressed were vague or did not have adequate basis in the evidence so I reject those.

Mr. Loch accurately stated that the sum of The Hair Connection’s tangible assets (bank accounts, petty cash, security deposit, general supplies and beauty supplies) amounted to $24,631. Plaintiff’s share of this was $8,210. However, the court rejects Mr. Loch’s valuation of the furniture, fixtures and leasehold improvements owned by The Hair Connection. Mr. Loch mistakenly concluded that The Hair Connection retained an interest in leasehold improvements made to the premises leased from Fieldstone. Under the lease agreement, all such improvements became the property of Fieldstone (plaintiff’s exhibit no. 2, “lease agreement,” exhibit E, paragraph 5), but The Hair Connection did own its furniture and trade fixtures.

The depreciated value of the furniture and trade fixtures was more accurately stated by Erwin Prutzman in a balance sheet he prepared for The Hair Connection on June 30, 2007. Mr. Prutzman valued the property at $6,340.58. (Plaintiff’s exhibit no. 25, Loch no. 7.) Plaintiff’s one-third share of this value was $2,113.53.

Therefore, the total value of the plaintiff’s interest in the tangible assets and trade fixtures of The Hair Connection at the time of her retirement amounted to $10,323.53 ($8,210 plus $2,113.53).

In evaluating the plaintiff’s portion of the good will of the business, Mr. Loch attempted to provide a dollar amount equal to the revenue from plaintiff’s loyal clients. Mr. Loch valued the earnings of The Hair Connection attributed to plaintiff’s good will at $ 13,794. He reached this number by comparing the personal income of the two defendants from the year (2006) before plaintiff’s retirement with their income for the year (2008) after her retirement. While it is true that both defendants experienced an increase in income in the year after the plaintiff’s retirement, Mr. Loch’s valuation of good will rested on the assumption that defendants’ increase in income in 2008 resulted solely from the plaintiff’s retirement. However, other reasons existed for the defendants’ increased income in 2008, such as new cost-cutting measures and an increase in rates. These other reasons somewhat undercut Mr. Loch’s conclusion on this point.

The liabilities of The Hair Connection at the time of plaintiff’s retirement equaled $40,456. (Plaintiff’s exhibit no. 25.) Outstanding debt on the 2004 business loan from Harleysville National Bank accounted for most of this debt. Plaintiff’s one-third share of this figure amounted to $13,485.

The testimony of the defendants, Roxanne Prutzman and Donna Grimshaw, offered some insight on the value of the plaintiff’s good will. Both defendants testified that approximately 22 clients formerly serviced by the plaintiff remained customers at The Hair Connection LLC the successor entity to The Hair Connection. This is a minimization of the number of plaintiff’s clients who remained with the business after the retirement. I reach this conclusion based on defendants’ questionable credibility on this point and, if there were only 22 clients who remained, that would not adequately explain defendants’ increase in income after the retirement even factoring cost-cutting steps, increased rates and defendants’ own clients. Defendants continue to benefit from plaintiff’s good will. I conclude that the value of good will attributable to the plaintiff equals $4,000.

I applied the excess earnings valuation method to the above figures to determine plaintiff’s interest in The Hair Connection at the time of her retirement. First, the value of the plaintiff’s good will ($4,000) is capitalized at 20 percent, leaving a total of $20,000. Capitalization accounts for the fact that, in the hair styling industry, clients usually patronize the same stylist for five years or more. Second, the value of the plaintiff’s interest in the tangible assets of the partnership ($10,323.53) is added to the capitalized good will attributable to plaintiff ($20,000), leaving atotal operating value of $30,323.53. Third, the plaintiff’s share of the liabilities of The Hair Connection ($13,485) is subtracted from the total operating value ($30,323.53) for a net operating value of $16,838.53. Last, the net operating value is discounted at a rate of 25 percent for a lack of marketability. The discount accounts for the fact that a business may at times find it difficult to find willing buyers. After the discount is applied, the final value of plaintiff’s interest in the partnership’s tangible assets, along with her good will, at the time of her retirement amounts to $12,628.90.

Punitive Damages

Section 8334 of the Uniform Partnership Act, which is entitled “partner accountable as fiduciary,” states: “Every partner must account to the partnership for any benefit and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct or liquidation of the partnership or from any use by him of its property.” 15Pa.C.S. §8334(a).

The defendants intentionally excluded the plaintiff from what turned out to be a key business meeting dealing with the future of the business. They refused to allow the plaintiff inspection of partnership records. They renewed a lease for business property with Fieldstone without ever obtaining plaintiff’s consent. Defendants knew they had an obligation to account to the plaintiff after she retired from the partnership. They participated in the meeting with their accountant, Mr. Gentilotti, for this purpose. Yet they refused to consider any of his proposals to address plaintiff’s interest. Defendants, without the consent of the plaintiff, removed all of the funds of The Hair Connection’s savings and checking accounts and used these funds to capitalize defendants’ limited liability company, The Hair Connection LLC. The defendants, again without plaintiff’s consent or knowledge, used the funds and trade fixtures of The Hair Connection to carry on the business of their limited liability company.

Defendants’ conduct in these affairs was consistently offensive and intentionally adverse to the obligation of trust they owed to their other partner, the plaintiff. Their conduct was often devious in the way they excluded plaintiff.

Because the defendants willfully breached the fiduciary duty they owed to plaintiff as I have specified, plaintiff is entitled to collect punitive damages from each defendant. “Punitive damages are awarded to punish a defendant for certain outrageous acts and to deter him or others from engaging in similar conduct.” G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 176, 713 A.2d 1127, 1131 (1998).

“The standard under which punitive damages are measured in Pennsylvania requires analysis of the following factors: (1) the character of the act; (2) the nature and extent of the harm; and (3) the wealth of the defendant.” Judge Technical Services Inc. v. Clancy 813 A.2d 879, 889 (Pa. Super. 2002). After consideration of all of these factors, it is proper that each individual defendant pay the plaintiff punitive damages in the amount of $7,500.

Defendants ’ Counterclaim

In their answer to plaintiff’s amended complaint, defendants assert a counterclaim. However, the defendants did not pursue or argue the merits of the counterclaim at trial. Therefore, the counterclaim is waived. Nevertheless, I make observations about the counterclaim.

The defendants contend that the plaintiff remains liable for the debts of The Hair Connection as well as for the debts of its successor entity, The Hair Connection LLC. Specifically, the defendants argue that, at the time the plaintiff “departed” from The Hair Connection, she was a debtor with defendants for the amount owed to Harleysville National Bank. Therefore, defendants argue that they are each forced to pay one-half of the monthly obligation to Harleysville instead of the one-third obligation they would be paying had plaintiff not left the business. Defendants also assert that, because plaintiff departed the business, each defendant is now required to pay one-half of the operating costs of The Hair Connection LLC, instead of one-third of the costs if plaintiff remained. Finally, the defendants claim that “[a]s a result of the refusal of [plaintiff] to consent to the renewal of the lease (with Fieldstone) for all three of them, the LLC and [the defendants] were forced to accept terms more onerous than the terms of the original lease.” All of these claims are baseless.

First, the plaintiff acknowledges that The Hair Connection owed Harleysville $40,456 at the time of her retirement and that her share of this debt amounted to $13,485. For this reason, plaintiff’s expert, Mr. Loch, factored in the plaintiff’s $13,485 debt when using the excess earnings valuation method to determine the value of her interest in The Hair Connection. As I stated, I accepted the excess earnings valuation method as a proper valuation tool. Therefore, the value of plaintiff’s interest in The Hair Connection has been reduced by $ 13,485 to account for her share of the debt to Harleysville. In view of this, it would be improper to allow the defendants to separately collect an additional $13,485 from plaintiff.

Second, the plaintiff cannot be held liable for the defendants’ costs associated with operating The Hair Connection LLC. If a debt is incurred after dissolution of a partnership and the debt is not incurred as part of the process of winding up the partnership, the debt is not a partnership debt. Kirby v. Kalbacher, 373 Pa. 103, 95 A.2d 535 (1953).

After plaintiff announced her retirement, the defendants, instead of winding up the partnership, renewed the lease with Fieldstone and continued to operate the business as The Hair Connection LLC. The defendants have incurred costs as a result of their decision to continue operating the business as a limited liability company without plaintiff’s consent. However, these costs connected to operating the limited liability complaint were incurred after dissolution of The Hair Connection and do not relate to the winding up of the partnership. These costs associated with the operation of The Hair Connection LLC, do not constitute partnership debts for which the plaintiff can be held liable. Moreover, if the defendants now bear a greater expense in maintaining their limited liability company, it is due to their conscious decision to exclude the plaintiff from the management of the business, not to any actions of the plaintiff.

For all of the above reasons, the court awards the plaintiff compensatory damages in the amount of $12,628.90. Additionally, the defendants, Roxanne Putz-man and Donna Grimshaw, must each pay the plaintiff $7,500 in punitive damages.


author: LUNSFORD, J.,

text:
    Brace v Shears

      Terry J. Williams, for plaintiff.

      J Michael Dorezas, for defendants.
    April 1, 2010
   LUNSFORD, J.,

BACKGROUND

Plaintiff, Beatrice D. Brace, filed a complaint against defendants, Mark C. Shears and Suzette M. Shears, on January 18, 2010, seeking redress for damage done to plaintiff’s property under theories of trespass and negligence. Defendants filed preliminary objections to plaintiff’s complaint on February 4, 2010, and filed their brief in support of preliminary objections to plaintiff’s complaint on February 19, 2010. Defendants take issue with plaintiff’s requests for punitive damages and “further relief as the court deems just and proper.” Defendants request that plaintiff’s punitive damages claim in Count I B. be stricken arguing the pleadings are insufficient to support the claim and that plaintiff’s request for further relief in Counts I C. and II B. be stricken for failure to plead facts justifying such relief. On March 2, 2010, plaintiff filed a complaint joining additional defendant Gary Cobb to this matter. Plaintiff filed a brief in opposition to defendants’ preliminary objections on March 16, 2010.

Specifically, plaintiff seeks compensatory damages of $4,832.63, punitive damages, and further relief from this court for damages that occurred to plaintiff’s property during installation of defendants’ fence. The fence was installed by additional defendant. During the fence installation, several of plaintiff’s old growth trees were killed, several young sapling trees were killed, blackberry bushes were destroyed, and the contour of plaintiff’s property was altered. Plaintiff did not give additional defendant consent to enter onto her property. Additionally, plaintiff claims to have notified additional defendant of the wrongful entry and according to plaintiff, after this notification, additional defendant remained on the property for two additional days.

DISCUSSION

(A) Punitive Damages

Plaintiff failed to aver any facts concerning willful, wanton, or malicious conduct necessary for a successful claim for punitive damages. In Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), the Pennsylvania Supreme Court adopted section 908(2) of the Restatement (Second) of Torts with regard to the reckless conduct required to support an award of punitive damages. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). Punitive damages are not recoverable for mere negligence or even gross negligence; they are reserved for conduct that is outrageous due to evil motive or reckless indifference for the rights of others. Id. Punitive damages are reserved for cases where defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. Id. An allegation of evil motive or reckless indifference must be supported by specific fact averments. See Pa.R.C.P. 1019; McDaniel v. Merck, Sharp & Dohme, 361 Pa. Super. 600, 533 A.2d 436 (1987).

It is insufficient for plaintiff to merely state a legal conclusion averring that defendants’ conduct was malicious, wanton, willful, reckless, oppressive, or outrageous; instead, what must be pled are the facts supporting such legal conclusions. Schock v. T.J. Care Inc., 2004 WL 1570109 *2 (Pa.Com.Pl. 2004). Plaintiff has failed to plead any evil motive or reckless indifference on behalf of defendants. Therefore, plaintiff has not sufficiently pled facts supporting the request for punitive damages.

Plaintiff also seems to make an argument that additional defendant’s actions rose to the level of conduct required to allow a recovery for punitive damages, therefore, defendants are liable under an agency theory. Assuming arguendo additional defendant was indeed an agent of the defendants, the Restatement (Second) of Torts limits the circumstances under which punitive damages can be awarded against a principal for the act of his or her agent.

“Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, (a) the principal or managerial agent authorized the doing and the manner of the act; (b) the agent was unfit and the principal or managerial agent was reckless in employing or retaining him; (c) the agent was employed in a managerial capacity and was acting in the scope of his employment; or (d) the principal or managerial agent of the principal ratified or approved the act.” Restatement (Second) of Torts, §909.

Plaintiff’s complaint does not contain any allegations that defendants authorized the specific acts of additional defendant, that defendants were reckless in employing additional defendant, that additional defendant was acting in a managerial capacity, or that defendants ratified or approved additional defendant’s acts. Therefore, plaintiff has no grounds to make a claim of punitive damages against defendants under an agency law theory.

(B) Special Damages

Plaintiff’s requests for “such other and further relief as the court deems just and proper” amount to a claim for special damages. Hooker v. State Farm Fire and Casualty Co. 880 A.2d 70, 77 (Pa. Commw. 2005). According to the court in Hooker, “[sjpecial damages are those that are not the usual and ordinary consequences of the wrong, done but which depend on special circumstances.” Id. The Pennsylvania Rules of Civil Procedure require that items of special damages be specifically pled. Pa.R.C.P. 1019(f). The court in Hooker provided, “[s] pecial damages may not be proved unless special facts giving rise to them are averred.” Id. at 77, citing Laing v. Colder, 8 Pa. 479 (1848). Plaintiff failed to aver any facts supporting a finding of special damages in Count I and Count II of the complaint. Because of plaintiff’s failure to provide defendants with specific facts upon which special damages should be granted, the defendants are unable to ascertain why the plaintiff is seeking special damages. Therefore the request for special damages is inadequately pled.

Accordingly, the following order is entered.

ORDER

And now, April 1, 2010, defendants’ preliminary objections to plaintiff’s complaint are hereby sustained. Plaintiff’s request for punitive damages in Count IB. is stricken from the complaint. Plaintiff’s request for “such other and further relief as the court deems just and proper” in Counts I C. and II B. is stricken from the complaint.