author: HANCHER, J.,

text:
    Selfspot Inc. v. Butler County Family YMCA

      C.P. of Butler County,
    no. 00-50002.

      Lawrence P. Lutz, for plaintiff.

      Fred Greenberg, for defendant.
    August 15, 2000
   HANCHER, J.,

Now before the court are the preliminary objections of the defendant, Butler County Family YMCA. For the reasons set forth below, defendant’s preliminary objections are sustained.

I. FACTUAL BACKGROUND

Plaintiff d/b/a The Fitness Factory, is a tax paying small business located at 671 Castle Creek Drive Extension, Seven Fields, Butler County, Pennsylvania. The Fitness Factory has operated as a commercial health club at this location since May 1998. Defendant Butler County Family YMCA, operating as a tax exempt charity, recently announced plans to build a new 35,000 square foot, full-service fitness center along the Route 19 corridor in or near Cranberry Township, Pennsylvania. As the proposed new fitness center would be located approximately five miles from the Fitness Factory, plaintiff presumes defendant would draw members from approximately the same radius and, therefore, the two facilities would be in direct competition.

Plaintiff filed the above-captioned action pursuant to the Institution of Purely Public Charities Act, 10 P.S. §§371-385. The Fitness Factory essentially makes two claims: first, that the proposed expanded facility would allow the Butler Y to use its tax exempt status to compete unfairly against a small business, namely the Fitness Factory, in violation of 10 P.S. §378(A); and, second, that the Butler Y’s ownership and operation of a new, state-of-the-art health club is not consistent with any recognized or authorized charitable purpose. In this action for declaratory and injunctive relief, the Fitness Factory seeks to prohibit the Butler Y from expanding its facilities. In response to the Fitness Factory’s complaint, Butler Y filed the instant preliminary objections.

II. STANDARD OF REVIEW

Preliminary objections in the nature of a demurrer will only be sustained when it appears with certainty that a recovery is impermissible under the alleged facts. Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997). The existence of any doubt as to whether the demurrer must be sustained should be resolved by overruling the objection. Id. Furthermore, in ruling on preliminary objections, the court “must accept as true all well-pleaded material allegations in [the complaint], as well as all inferences reasonably deduced therefrom.” Envirotest Partners v. PennDOT, 664 A.2d 208, 211 (Pa. Commw. 1995). It is within the confines of this standard that we will consider this matter.

HI. MERITS OF DEFENDANT BUTLER COUNTY YMCA’S PRELIMINARY OBJECTION

A. Lack of Subject Matter Jurisdiction

The first issue defendant submits is whether this court has subject matter jurisdiction pursuant to the Act to address plaintiff’s claim. Plaintiff asks the court to examine whether the Butler Y’s proposal to expand its fitness center is consistent with any recognizable charitable purpose and would constitute unfair competition with the Fitness Factory. We sustain defendant Butler Y’s preliminary objection, holding subject matter jurisdiction is lacking to examine this issue pursuant to the Act.

Defendant Butler Y contends subject matter is lacking, because the Fitness Factory does not raise a permissible claim under section 8 of the Act. Section 8 is the only section which provides remedy for a small business alleging a purely public charity is unfairly competing through activities outside the scope of its charter. Butler Y maintains plaintiff’s action instead asks the court to examine whether the Y’s activity of running a fitness center is a proper charitable purpose pursuant to section 5 of the Act. Butler Y argues only a political subdivision may raise said issue. See 10 P.S. §376(b).

The Fitness Factory insists that it is not challenging the Butler Y’s tax exempt status or asserting a section 5 claim. Rather, the Fitness Factory argues the court must apply section 5 in performing its analysis of a section 8 unfair competition claim under 10 P.S. §378(B) and (h).

Therefore, it appears plaintiff is arguing the court must look beyond whether the Butler Y is acting outside of its charter and determine if the activity of operating a fitness center complies with Pennsylvania law as a proper charitable purpose. The court finds such an analysis to be inconsistent with the Act and, therefore, subject matter jurisdiction is lacking.

In determining whether subject matter jurisdiction exists, we found no controlling law. Thus, we turn to the statute itself for guidance. When interpreting the statute, however, we need look no further than section 8 itself. It is well settled that “[w]hen the words of the law are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing the spirit.” 1 Pa.C.S. § 1921(b).

“The intention and meaning of the legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Davis v. Sulcowe, 416 Pa. 138, 143, 205 A.2d 89, 91 (1964).

We find section 8 to be free from ambiguity. Subsection (a) sets forth the intent:

“It is the policy of this Act that institutions of purely public charity shall not use their tax exempt status to compete unfairly with small business.”

Subsection (b) delineates the general rule of the section:

“An institution of purely public charity may not fund, capitalize, guarantee the indebtedness of, lease obligations of or subsidize a commercial business that is unrelated to the institution’s charitable purpose as stated in the institution’s charter or governing legal documents.”

Further, a system of mandatory arbitration is provided as a remedy for alleged violations of the unfair competítion ban. 10 P.S. §378(i). “Either party may initiate a de novo appeal from the arbitrator’s decision in the court of common pleas of the judicial district in which the arbitration took place within 30 days of the arbitrator’s decision.” 10 P.S. §378(i)(9).

It is clear that section 8 intends to prohibit institutions of purely public charity from engaging in activities outside of its charter that would create unfair competition with small businesses. Section 8 does not permit a small business to bring any other type of claim. This section is the only part of the Act providing a remedy for a private party. However, there is a separate section of the Act dedicated for examining whether an institution’s purpose is in compliance with the enumerated charitable purposes. Further, the section specifically sets forth a method for resolving disputes. The documents identified for an arbitrator or court to examine during a review are specifically listed — an institution’s charter or governing legal document. It is clear that a section 8 claim is solely to examine whether an institution is acting outside the scope of its stated charitable purpose.

The Common Pleas Court of Delaware County recently reviewed this exact issue. Justice Pagano’s opinion is particularly insightful. The court found: “[njowhere ... does section 378 or any other section of the Act permit a small business to raise the issue of a purely public charity’s unfair competition on the basis that its activities were not consistent with a recognized charitable purpose and nowhere does the Act provide a court of common pleas with jurisdiction to review such a claim. The Act very specifically creates a remedial structure limited to a review that a purely public charity’s activities are unrelated to its charitable purpose as stated in its charter or governing legal documents.” Dynamic Sports Fitness Corporation of America Inc. v. Community YMCA of Eastern Delaware County, no. 98-15569 (C.P. Delaware County, August 4, 1999), appeal transferred, 751 A.2d 670 (Pa. Super. 2000). A small business cannot argue that an institution of purely public charity violated another section of the Act.

The closest the Act gets to the type of review plaintiff’s request, determining whether defendant’s activities are related to an approved charitable purpose, is found under section 6. Section 6 unambiguously states that a political subdivision may challenge an institution of purely public charity for not being in compliance with the requirements of section 5, setting out the criterion for a proper charitable purpose. We find that the Act does not permit another party to challenge an institution’s status in this manner.

In that plaintiff’s complaint does not allege a proper claim under section 8 of the Act, that the Butler Y’s proposed new fitness center is unrelated to its charter’s stated purpose, this court is unavailable to hear its claim. Therefore, defendant Butler Y’s preliminary objection is sustained.

Accordingly, we enter the following:

ORDER

And now, August 15, 2000, in accordance with the attached memorandum opinion, it is ordered that defendant’s preliminary objection in the nature of a demurrer is sustained and plaintiff’s complaint is dismissed.

      . Plaintiff is a “small business” as defined by 10 P.S. §373.

      . The Fitness Factory first filed a complaint with the Department of State as required by 10 P.S. §378(i). Butler Y filed a motion to terminate arbitration. A duly appointed arbitrator issued a decision on December 28,1999, after conducting a review of the complaint pursuant to section 8(i)(5).

      . See paragraphs 9,11, 21, 22,37, 39,42,48, and 50 of plaintiff’s complaint.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    Dembinski v. Thomas
    C.P. of Lehigh County,
    no. 96-C-3039V.

      Howard J. Levin, for plaintiff.

      Sean M. Heart, for defendant.

      June 8, 2000
   BLACK, J.,

In this wrongful death and survival action, plaintiff has filed a motion in limine to preclude evidence of the decedent’s alleged heroin usage, some six years prior to his death. Plaintiff contends that this evidence is not relevant, and that even if relevant, its prejudicial effect outweighs whatever probative value it may have. For the reasons set forth below, we disagree with plaintiff’s contentions and find that this evidence is admissible.

FACTUAL BACKGROUND

The factual background of this case is set forth in detail in our opinion of June 23, 1999, denying the summary judgment motion of defendant Marian Community Hospital. Suffice it to say now that the case arises from the death of Paul A. Dembinski on December 6, 1995, from a condition known as neuroleptic malignant syndrome. Plaintiff alleges that this condition was the result of an adverse reaction to Haldol, an anti-psychotic drug, initially administered to the decedent by defendant Alex Thomas M.D., while the decedent was an inmate at Lehigh County Prison. Plaintiff claims that Dr. Thomas and the various other defendants were grossly negligent either in administering this drug to the decedent or in failing to recognize and diagnose his adverse reaction after the drug had been administered.

Defendants have produced an expert report from a clinical psychiatrist, Joseph DiGiacomo M.D., on the issue of the standard of care. In his report, Dr. DiGiacomo summarizes and quotes from medical records of the CareUnit at Nesbitt Memorial Hospital from 1989, when the decedent was a detoxification patient at the facility. These records discuss the decedent’s lengthy use of heroin, alcohol and other controlled substances, which is described in Dr. DiGiacomo’s report as follows:

“The drug history indicates Mr. Dembinski abused alcohol from age 16. He admitted to blackouts in the past. He also abused benzodiazepines, i.e., Valium, up to 30-60 mg/day. He smoked marijuana. He abused narcotics including Percodan, Percocet and Tylox beginning at age 29. His main problem was I. V. heroin addiction. Three months prior to admission he began ‘snorting, skin popping and for the last 8-10 weeks has been using daily I.V. 4-8 bags per day’ supporting a $300/ week habit.”

The report discusses the decedent’s repeat visits to detoxification centers as follows:

“He had been in detox and rehab previously. ‘In November 1986,... Went to Naples, Florida,... through a detox program and rehab program.’ On January 26,1999, the records indicate ‘had previous treatment one year ago for 28 days and was clean for two months.’ ...

“Following his discharge from the CareUnit, he failed to follow up on any of the outpatient meetings, dealing with his addiction. He missed seven consecutive meetings and his ‘case closed.’ His prognosis was ‘extremely poor.’ ”

In addition to reviewing the 1989 hospital records, Dr. DiGiacomo’s report also chronicles and evaluates the medical treatment rendered to the decedent in the weeks preceding his death.

Defendants also produced an expert report from Irene C. Mendelsohn M.S., C.R.C., a rehabilitation counselor, on the issue of the decedent’s loss of future earnings. In her report, Ms. Mendelsohn identifies the decedent’s prior drug use as a factor that affects negatively his life expectancy and future income capacity. She states:

“That brings up the issue of Mr. Dembinski’s evident alcohol abuse problem, as well as his history of substance abuse. Mr. Dembinski’s history makes it evident that these were not only recent but also recurrent problems for him — unfortunately, not an uncommon occurrence— and it is also well-known that those types of problems, coupled with the treatment involved, are usually disruptive factors in one’s labor force participation. These factors had apparently already interrupted Mr. Dembinski’s work history, and it is quite likely that they would have continued to do so in the future, absent his death.

“Therefore, in consideration of all of the information presently available and as discussed herein, please note my opinion that assumption and projection of a modest level of earnings (such as minimum wage) and concomitantly high proportion of personal maintenance expenses presents a far more realistic portrait of Mr. Dembinski’s vocational outlook and earning potential than one of $26,000 annually with a much lower proportion of personal maintenance expenses. . . . [I]t is reasonable to suggest that, absent his death, Mr. Dembinski would have had only a low level of earnings, in fact, sufficiently low that his income level would not have significantly exceeded his level of maintenance expenses and he would have required the ongoing financial support of his parents.”

DISCUSSION

Plaintiff seeks to preclude all reference at trial to the decedent’s drug and alcohol use, especially his use of heroin. We find, however, that this evidence is highly relevant, and that the probative value of this evidence clearly outweighs any unfair prejudice to plaintiff.

In reviewing the admissibility of evidence, a trial court must first determine if the proffered evidence is relevant. Henery v. Shadle, 443 Pa. Super. 331, 341-42, 661 A.2d 439, 444 (1995), appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” Pa.R.E. 401. As a general rule, “[a]ll relevant evidence is admissible....” Pa.R.E. 402. Nevertheless, relevant evidence “may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Pa.R.E. 403. If it is determined that the proffered evidence is relevant, the trial court must then “balance the probative value of evidence against the prejudicial effect of that evidence.” Clinton v. Giles, 719 A.2d 314 (Pa. Super. 1998).

Relevance

Dr. Thomas maintains that evidence of the decedent’s prior drug and alcohol use, including his heroin addiction, is highly relevant to determining the decedent’s life expectancy and future earning capacity, which the jury will be required to consider in evaluating plaintiff’s damage claim. Dr. Thomas maintains that this evidence is also relevant to determining whether he violated the appropriate standard of care in administering Haldol to the decedent. We agree.

Future Earnings

Our Superior Court has held that evidence of drug or alcohol use is relevant to evaluating future loss of earnings. Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998), allocatur granted, 556 Pa. 257, 727 A.2d 1109 (1999), dismissed as improvidently granted, 560 Pa. 220, 743 A.2d 451 (2000). Such evidence “strongly suggests that [a party’s] life expectancy deviates from the average.” 710 A.2d at 1144. This evidence is relevant regardless of whether plaintiff introduces expert testimony or life expectancy tables. See Aiello v. SEPTA, 687 A.2d 399, 405 (Pa. Commw. 1996), allocatur granted, 549 Pa. 608, 702 A.2d 547 (1997), dismissed as improvidently granted, 554 Pa. 244, 720 A.2d 1050 (1998), where the court wrote:

“Because [plaintiff] sought future damages . . . life expectancy and medical condition [are] pertinent issues regardless of [plaintiff’s] avoiding the introduction of life expectancy tables or expert testimony.”

In the instant case, the proffered evidence establishes that in 1989 the decedent had a long-standing addiction to multiple controlled substances, and that six years later, at the time of his death, he was still undergoing detoxification treatment. From this evidence, a jury could reasonably find a pattern in the decedent’s lifestyle and fitness for work that would adversely affect his future life expectancy and earning capacity. As in Kraus, the proffered evidence makes it more likely than not that the decedent would have had a below-average work-life expectancy and a below-average ability to maintain employment, both factors affecting plaintiff’s claim for future loss of earnings. Accordingly, we find the evidence of the decedent’s drug history to be highly relevant for evaluating his future income loss.

Standard of Care

The proffered evidence is also relevant to the issue whether Dr. Thomas deviated from the appropriate standard of care. Plaintiff contends that Dr. Thomas was grossly negligent in administering additional Haldol to the decedent, despite symptoms of a negative reaction to the initial dosage. The evidence of the decedent’s prior drug and alcohol use is relevant to this contention because, as Dr. DiGiacomo explains in his report letter, the symptoms displayed by the decedent at the Lehigh County Prison and afterwards were not necessarily a negative reaction to the Haldol, but could have been the natural, expected consequences of a person undergoing detoxification for long-standing multi-substance drug use. Dr. DiGiacomo states that these symptoms could be indicative of “intracerebral changes from the previous illicit drug use that could be exerting its effect.” He opines that these symptoms are suggestive of a lingering withdrawal from the decedent’s prior multi-substance drug use.

Dr. Thomas explained in his deposition that he relied upon the information in the 1989 hospital records about the decedent’s drag history, particularly the decedent’s long-standing use of multiple controlled substances, in evaluating the decedent’s symptoms and in determining the appropriate treatment. Therefore, this information is crucial to assessing whether Dr. Thomas deviated from the proper standard of care.

Plaintiff points out that a blood test ordered by Dr. Thomas on November 30, 1995, revealed that there was then no heroin in the decedent’s system. Plaintiff contends, therefore, that the decedent’s alleged use of heroin “was not a basis upon which the defendants themselves acted or treated the plaintiff’s decedent, nor did it in any way cause or increase the risk of death.” However, this is a jury argument. It is not a basis for excluding evidence of the decedent’s prior drag use. We believe a jury could find that the alleged drag addiction did limit, the decedent’s future earning capacity. We also believe that this evidence is relevant to the issue of Dr. Thomas’ compliance with the standard of care.

Probative Value vs. Prejudicial Effect

Having determined the proffered evidence to be relevant, we must next balance the probative value of this evidence against any prejudicial effect. In the context of evaluating relevant evidence, prejudice “means an undue tendency to suggest a decision on an improper basis.” Chicchi v. SEPTA, 727 A.2d 604, 607 (Pa. Commw. 1999).

Whenever evidence of drug use is proffered, there is a significant concern that such evidence will cause unfair prejudice against the alleged drug user. See Kraus v. Taylor, 710 A.2d 1142, 1144 (Pa. Super. 1998) (“evidence of [party’s] chronic drug and alcohol abuse was highly prejudicial”); see generally, Commonwealth v. Satzberg, 358 Pa. Super. 39, 48, 516 A.2d 758, 762 (1986) (finding defendant unduly prejudiced by prosecutor’s comments on defendant’s drug habits, because of stigma associated with drug use). Nevertheless, where the jury is required to assess future damages that, in part, depend on the life expectancy of a party, evidence of that party’s drug use has been held admissible because such evidence is “highly probative of [the party’s] life expectancy.” Kraus v. Taylor, 710 A.2d at 1144.

In the instant case, as noted in Dr. Mendelsohn’s report, the decedent’s drug use justifies a downward deviation from the norm in both life expectancy and future income capacity. Precluding this evidence would give the jury a distorted view of the decedent’s lifestyle and habits, which have a substantial bearing upon the damages claimed. Dr. Mendelsohn must be permitted to rely on the evidence of prior drug usage in assessing the life expectancy and future income capacity of the decedent. See Capan v. Divine Providence Hospital, 270 Pa. Super. 127, 410 A.2d 1282 (1979) (trial court properly excluded testimony of expert witness economist as to life expectancy and future earnings when the hypothetical question posed to the economist did not include record evidence that the plaintiff was a chronic alcoholic).

The evidence of the decedent’s prior drug use is also of significant probative value regarding the standard of care. Dr. Thomas would be severely disadvantaged at trial if he could not refer to the decedent’s drug history in explaining the basis for his treatment decisions. As Dr. DiGiacomo explains in his report, the administration of Haldol by Dr. Thomas on November 30, 1995 and on December 1, 1995 “was on solid ground,” because the decedent’s symptoms were expected for an individual undergoing detoxification, who had such a lengthy history of multi-substance abuse. These symptoms did not necessarily demonstrate an adverse reaction to the initial administration of Haldol.

Thus, although evidence of drug use may be prejudicial, in this case the probative value of evidence of the decedent’s drug history significantly outweighs any prejudice to plaintiff. It would be unfair to defendants to preclude this evidence.

Plaintiff argues that even if we admit evidence of drug and alcohol use, we should at least prohibit any specific reference to heroin. Plaintiff suggests that the witnesses be instructed to use a euphemism, such as a general reference to substance abuse, to avoid mentioning heroin by name. However, we believe this would unfairly handicap Dr. Thomas, against whom serious accusations of professional malfeasance have been made. In Aiello, supra, the Commonwealth Court held that the fact-finder was entitled to hear evidence of the plaintiff’s HIV condition in a personal injury case where there was a claim for future damages. We find that the evidence of the decedent’s drug use in this case, including his use of heroin, is much less prejudicial than the evidence of the plaintiff’s HIV condition in Aiello.

Moreover, in summarizing the hospital records, Dr. DiGiacomo refers by name not only to heroin, but to five other drugs that the decedent had been using in 1989 or earlier, including benzodiazepines (Valium), Percodan, Percocet, Tylox, and marijuana. If evidence is to be admitted that the decedent was using at least five controlled substances other than heroin, there seems little reason to preclude reference to heroin. When seen in the context of the overall extensive drug history of the decedent, the reference to heroin along with the other named substances is of little additional consequence.

Plaintiff relies on Labrador v. City of Philadelphia, 134 Pa. Commw. 427, 578 A.2d 634 (1990), but this reliance is misplaced. In Labrador, the Commonwealth Court upheld a trial court’s determination that the defense could not present evidence of the decedent’s cirrhosis of the liver in a wrongful death and survival action, in the absence of expert testimony linking cirrhosis with a diminished life expectancy. The defendant had argued that evidence of the decedent’s cirrhosis was relevant because the disease would shorten one’s life expectancy, but the defendant acknowledged that it had no expert testimony linking cirrhosis with a decreased life expectancy. The Commonwealth Court upheld the trial court’s preclusion of the cirrhosis evidence because of the lack of such expert testimony. The trial court had also precluded evidence of the decedent’s alcohol use, but the plaintiff did not include the alcohol preclusion issue in the appeal, so the Commonwealth Court never addressed that issue.

In Kraus, supra, the Superior Court distinguished the Labrador case, noting that the Commonwealth Court had only the issue of the cirrhosis evidence before it, inasmuch as the trial court’s exclusion of alcohol evidence was not appealed. The Superior Court stated that “nothing in Labrador suggests the Commonwealth Court would have affirmed the trial court if it had excluded competent evidence of the [plaintiff’s] chronic alcohol abuse.” Kraus, 710 A.2d 1142.

In Kraus, the Superior Court specifically addressed the admissibility of a plaintiff’s drug and alcohol abuse in a personal injury case where there is a claim for future damages. The court held that although the evidence of drug and alcohol abuse was highly prejudicial to the plaintiff, the evidence was also highly probative because the “[e]vidence of [plaintiff’s] chronic drug and alcohol abuse strongly suggests that his life expectancy deviates from the average.” Kraus, 710 A.2d at 1144. The court ruled that the probative value of this evidence outweighed the prejudice and was therefore admissible.

We find the Kraus case to be controlling on the issue at hand. We also note that, although not binding upon this court, similar decisions have been reached in the United States District Court for the Eastern District of Pennsylvania, as well as other federal and state courts. See e.g., Carroll v. Morgan, 17 F.3d 787, 791 (5th Cir. 1994) (finding that records from alcohol and treatment center were admissible regarding causation and damages in a medical malpractice action); Smith v. Southland Corp., 738 F. Supp. 923, 925-26 (E.D. Pa. 1990) (admitting evidence of plaintiff’s drug and alcohol abuse to “rebut [his] claims for lost earning capacity”); Johnson v. Lull Enterprises Inc., 663 So.2d 403, 409 (La.App. 3 Cir. 1995) (finding that the probative value of drug use evidence outweighed the prejudicial effect).

The instant case is an even more compelling one than Kraus for admissibility of the evidence. Here the evidence of prior heroin use is probative not only of the damages claimed, but also of Dr. Thomas’ compliance with the standard of care.

For these reasons, plaintiff’s motion in limine is denied.

ORDER

Now, June 8, 2000, upon consideration of plaintiff’s motion in limine to preclude evidence of alleged heroin addiction or usage, after review of the parties’ briefs, for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is denied.

      . Report letter of Joseph DiGiacomo M.D. 10/20/98 at 2-3, plaintiff’s motion in limine to preclude evidence of alleged heroin addiction or usage, exhibit “A.”

      . Id. at 3.

      . Report letter of Irene Mendelsohn 10/24/98 at 5, plaintiff’s motion, exhibit “B.”

      . Dr. Thomas is the only defendant who responded to plaintiff’s motion.

      . DiGiacomo report at 5.

        . Id.

      . Deposition of Alex Thomas M.D. at 90,92, memorandum of law in support of defendant’s response to plaintiff’s motion in limine to preclude evidence of decedent’s heroin addiction, exhibit “B.”

      . Plaintiff’s motion, ¶32.

        . DiGiacomo report at 5.


author: LOWE, S.J.,

text:
    Pottstown School District v. The Hill School

      C.P. of Montgomery County,
    no. 96-16925.

      Joseph E. Bresnan, for petitioners.

      Paul Baker Bartle and Thomas D. Rees, for respondent, The Hill School.

      Joan M. Righter, assistant county solicitor, for respondent, Montgomery County.
    June 5, 2000
   LOWE, S.J.,

This is an appeal by the Pottstown School District from an order of the Montgomery County Board of Assessment Appeals, challenging the charitable exemption of The Hill School for the time before its conversion from an all-male to a coeducational private school. On May 20, 1996, the school district and borough filed a petition before the Board of Assessment Appeals seeking to remove The Hill School’s tax-exempt status for the parcels set forth in the caption of this opinion. The Board of Assessment Appeals held a hearing, and on August 28, 1996, issued notices of no change in assessment, finding that the existing exemptions would continue for the tax year beginning January 1, 1997

On March 13,2000, we heard the appeal on stipulated facts. By order dated March 17, 2000, we sustained the appeal and held The Hill School liable for assessed taxes on these properties. The Hill School filed a timely motion for reconsideration on March 24, 2000. We vacated our March 17, 2000 order and expressly granted reconsideration on April 7, 2000. The parties submitted additional briefs, and presented oral argument on May 8, 2000. We now conclude that The Hill School was exempt from taxation as an institution of purely public charity during the challenged years, and therefore dismiss the school district’s appeal.

Article VIII, Section 2(a)(b) of the Pennsylvania Constitution authorizes the General Assembly to exempt from taxation institutions of purely public charity. An exemption is granted by 72 P.S. §5020-204(a), which includes:

“(3) All hospitals, universities, colleges, seminaries, academies, associations and institutions of learning, benevolence, or charity, including fire and rescue stations, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same founded, endowed, and maintained by public or private charity ....”

Similar provisions existed in earlier constitutions and statutes. Over the years the courts developed a five-part test for determining whether an institution is a purely public charity. The entity must:

(1) Advance a charitable purpose;

(2) Donate or render gratuitously a substantial portion of its services;

(3) Benefit a substantial and indefinite class of persons who are legitimate subjects of charity;

(4) Relieve the government of some of its burden; and

(5) Operate entirely free from private profit motive. Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985); City of Washington v. Board of Assessment Appeals of Washington County, 550 Pa. 175, 704 A.2d 120 (1997).

The parties stipulated that from its founding The Hill School was a preparatory school for young men. On April 5,1997, its board of trustees voted to admit women. They began attending The Hill School on September 5,1998. At all times The Hill School admitted young men of any race, color, and national or ethnic origin, regardless of their ability to pay tuition. It did not discriminate among young men on the basis of its educational or admissions policies, nor on the basis of its scholarship, loan, athletic, or other school administered programs.

In the stipulation, the school district limited its challenge to The Hill School’s tax exemption to the alleged failure to benefit a substantial and indefinite class of persons. The sole reason for this was that the school did not admit women.

On November 26, 1997, during the period for which The Hill School’s exemption is challenged, the Institutions of Purely Public Charity Act, Act of November 26, 1997, P.L. 598, 10 P.S §371, was enacted and became effective. The parties agreed, and we find, that this statute codifies the prior case law. It defines, at 10 P.S. §375(e)(2), “Substantial and indefinite class of persons” as:

“Persons not predetermined in number, provided that, where the goods or services are received primarily by members of the institution, membership cannot be predetermined in number and cannot be arbitrarily denied by a vote of the existing members. This subsection specifically recognizes that the use of admissions criteria and enrollment limitations by educational institutions does not constitute predetermined membership or arbitrary restrictions on membership so as to violate this section and recognizes that an institution may reasonably deny membership based on the types of services it provides, as long as denial is not in violation of federal or state antidiscrimination laws, such as the Civil Rights Act of 1964 (Public Law 88-352, 78 Stat. 241) and the Act of October 27, 1955 (P.L. 744, no. 222), known as the Pennsylvania Human Relations Act. ” (emphasis added)

From the effective date of the Institutions of Purely Public Charity Act forward, admissions criteria and enrollment limitations by educational institutions do not violate the substantial and indefinite class of persons portion of the test if they do not violate federal or state antidiscrimination laws.

It is not a violation of any of those laws for a private primary, secondary or undergraduate educational institution to discriminate in admissions policies on the basis of sex. The relevant federal law limits its application to institutions, programs or activities receiving federal financial assistance. 20 U.S.C. §1681(a). That statute also limits its applicability to admissions to educational institutions to vocational, professional, and graduate schools, and to public undergraduate institutions. 20 U.S.C. §1681(a)(1). Therefore, neither secondary schools nor private undergraduate schools which receive federal financial assistance violate this Act if they restrict their admissions to one gender.

Pennsylvania’s Human Relations Act does not address admissions to schools at all in its enumeration of unlawful discriminatory practices. 43 P.S. §955. The Pennsylvania School Code specifically prohibits public and private schools from refusing to enroll students because of race or color. 24 P.S. §15-1521. The Pennsylvania Fair Educational Opportunities Act, 24 P.S. §5001 et seq., prohibits discrimination on the basis of sex in public schools, but, at 24 P.S. §5009(a) provides that:

“This Act shall not be construed to prohibit any educational institution which is neither state-owned nor state-related, nor state-aided, from drawing its enrollment entirely from members of one sex or from the sexes in any proportion ....”

There is, in short, no statutory prohibition against single-gender private, primary, secondary or undergraduate institutions. As a result, The Hill School did not fail to benefit a substantial and indefinite class of persons under Pennsylvania’s Institutions of Purely Public Charities Act.

That statute is not applicable during the entire time for which The Hill School’s exemption is challenged in this case. Nevertheless, the state and federal civil rights provisions cited are a legislative declaration of public policy which predates the school district’s challenge.

No Pennsylvania case to which our attention was directed, or which we are able to find, addresses the question of whether an institution which benefits only a single gender is, by that fact, prohibited from being an institution of purely public charity under the decisional law as it existed prior to the enactment of the Institutions of Purely Public Charities Act. The Hill School directs our attention to a number of cases where the tax exemptions of single-gender institutions was upheld: Haverford College v. Rhoads, 6 Pa. Super. 71 (1896); Salvation Army v. Allegheny County, 367 Pa. 373, 80 A.2d 758 (1951); Wayne County Board of Assessment v. Rolling Hills Girl Scout Council, 19 Pa. Commw. 484, 353 A.2d 498 (1975); Scranton Pocono Girl Scout Council v. County Commissioners of Susquehanna County, 71 Pa. Commw. 528, 455 A.2d 281 (1983). In all these cases the single-gender character of the institution was just a background fact, not the issue on which the exemption was challenged.

The school also cites Livingwell (North) Inc. v. Pennsylvania Human Relations Commission, 147 Pa. Commw. 116, 606 A.2d 1287 (1992), allocatur denied, 533 Pa. 611, 618 A.2d 401 (1992), for the proposition that exclusion of men does not violate the Pennsylvania Human Relations Act. That case addressed a narrow exception to the Human Relations Act, situations in which, due to modesty, persons would find it uncomfortable to have the opposite sex present. If relevant, Livingwell (North) Inc. would relate to locker rooms and bathing facilities. But the Pennsylvania Human Relations Act is inapplicable, because it does not address discrimination in admissions to educational institutions.

The school district cites several cases involving tax exemptions of institutions that did not discriminate on the basis of gender: Appeal ofBethlen Home of the Hungarian Reformed Federation of America, 125 Pa. Commw. 315, 557 A.2d 828 (1989); Mars Area School District v. United Presbyterian Women’s Association of North America, 693 A.2d 1002 (Pa. Commw. 1997), aff’d, 554 Pa. 324, 721 A.2d 360 (1998). Again, the nondiscrimination policies are only background facts. The basis for challenging the tax exemptions had nothing to do with gender-based discrimination.

In City of Washington v. Board of Assessment Appeals of Washington County, 550 Pa. 175, 704 A.2d 120 (1997), one basis for challenging the tax exemption ofWashington and Jefferson College was that it allegedly failed to benefit an indefinite class of persons who are legitimate subjects of charity because the college had admissions requirements, and because some scholarships were granted on the basis of academic achievement, not need. The Supreme Court held that it is not necessary that all the benefits bestowed by a charity go to the financially needy; the existence of academic standards is consistent with an educational institution’s charitable status. The Supreme Court cited Hill School Tax Exemption Case, 370 Pa. 21, 87 A.2d 259 (1952), for the proposition that:

“Any institution engaged in education of youth is a ‘public charity’ if its doors are open to the public generally or a well-defined class thereof, subject to reasonable entrance requirements....” 370 Pa. at 26, 87 A.2d at 262. (emphasis added)

The “substantial and indefinite class of persons” need not be the whole world, or, indeed, everyone who presents him or herself to the institution.

As long as institutions of purely public charity have been exempt from taxation in Pennsylvania, it has been recognized that the substantial and indefinite class of persons may be limited. In Donohugh v. The Library Company of Philadelphia, 86 Pa. 306 (1878), the Pennsylvania Supreme Court explained:

“The essential feature of a public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. The smallest street in the smallest village is a public highway of the Commonwealth, and nonetheless so because a vast majority of the citizens will certainly never derive any benefit from its use. So there is no charity conceivable which will not, in its practical operation, exclude a large part of mankind, and there are few which do not do so in express terms, or by the restrictive force of the description of the persons for whose benefit they are intended. Thus, Girard College excludes, by a single word, half the public, by requiring that only male children shall be received; the great Pennsylvania Hospital closes its gates to all but recent injuries, yet no one questions that they are public charities in the widest and most exacting sense.” (emphasis added)

Single-gender private schools are not unlawful. Restricting a school’s admissions to one sex or the other does not prevent the school from serving a substantial and indefinite class of persons. Since it was stipulated that prior to the time it admitted young women The Hill School met all the other tests to be an institution of purely public charity, we conclude that it is exempt from real estate taxation as an institution of purely public charity under 72 P.S. §5020-204(a)(3). The decisions of the Montgomery County Board of Assessment Appeals concerning the property described by the parcel numbers appearing in the caption of this decision are therefore affirmed.

ORDER

And now, June 5, 2000, the court finds that respondent The Hill School was an institution of purely public charity during the tax years which are the subject matter of this appeal, and therefore, the appeal from the decision of Montgomery County Board of Assessment Appeals is dismissed, and the orders of the Montgomery County Board of Assessment Appeals are hereby affirmed.

      . Pottstown Borough no longer contests this exemption, and is not a party to these proceedings.

      . Under 72 P.S. §5349.5 any changes in assessments may only be effective for the next fiscal year following the fiscal year in which the board heard the appeal and rendered its decision.

      . The Hill School argues that a decision denying it an exemption would effectively overrule the Supreme Court’s Hill School Tea Exemption Case, 370 Pa. 21, 87 A.2d 259 (1952) decision. The school district argues that Hill School is neither binding nor is it precedent because previous tax exemption decisions have little precedential value. Since we are upholding The Hill School’s exemption we do not reach the question raised by the school district. We note that Hill School did not address the school’s single-gender admissions policy.

      . Although Girard College now admits young women as well as young men, its governing body, the Board of Directors of City Trusts of the City of Philadelphia, is an arm of the Commonwealth. Its policy restricting admissions to white orphans was held invalid in Commonwealth of Pennsylvania v. Board of Directors of City Trusts of the City of Philadelphia, 353 U.S. 230, 77 S.Ct. 806 1 L.Ed.2d 792 (1957).

      . This is a final detennination to which motions for post-trial relief may not be filed. See Pa.R.C.P. 227.1(g).


author: ENDY, S.J.,

text:
    Becker v. Becker

      C.P. of Chester County,
    no. 1277 N 1996.

      Catherine H. Voit, for plaintiff.

      Charles J. Becker III, pro se.
    June 7, 2000
   ENDY, S.J.,

Before the court are cross-petitions for modification of a support order entered by stipulation on June 9,1999. Christine Becker requests a general increase in support and a contribution from Mr. Becker towards her children’s private Catholic school tuition. She cites as a change in circumstances her ex-husband’s recent refusal to pay for the children’s education, an expense he had historically assumed. Charles Becker III, seeks a downward modification of support on the basis of financial difficulties and new family responsibilities. Having carefully reviewed the testimony and exhibits and analyzed the parties’ respective financial situations, we conclude Mr. Becker is entitled to a decrease in child support and will not be required to contribute to the children’s private school tuition. For the following reasons, Mr. Becker’s petition for modification is granted and Ms. Becker’s petition is denied.

Christine and Charles Becker III, married on June 17, 1978. They have three children, Charles IV (a/k/a James), bom October 24,1982, Katherine, bom March 16,1990, and Lauren, bom August 30, 1991, all of whom reside primarily with Ms. Becker. After 19 years of marriage, the Beckers divorced and each has since remarried. Ms. Becker’s new husband earns roughly $86,000 per year. He has to support four children from a previous marriage. Additionally, Ms. Becker and her new husband have a child together. Ms. Becker’s occupation is that of housewife and mother to her children. Mr. Becker and his new wife, Julie, also have a young son together and are expecting their second child soon. Mr. Becker’s new wife is likewise not employed outside the home.

Mr. Becker is employed by Charles J. Becker & Bros. Inc., a purveyor of supplies for various school districts, including St. Patrick Parish, the school system the Beckers’ two younger children attend. Mr. Becker is a salesman. Prior to equitable distribution he was also a shareholder. The parties’ property settlement agreement, however, required Mr. Becker to cash in all of his stocks and withdraw significant sums from his pension and 401K accounts to meet his contractual obligations. First, the agreement required Mr. Becker to withdraw $103,000 from his interest in the company’s profit-sharing plan to pay certain marital debts. Secondly, paragraph 12C of the agreement required Mr. Becker to pay Ms. Becker the sum of $157,117. The agreement specified that the proceeds from Mr. Becker’s stock redemption were to be applied to this obligation. The agreement next provided that Mr. Becker was to satisfy the outstanding balance by paying Ms. Becker the sum of $19,000 prior to December 31, 1998 and then remitting to her the additional sum of $ 13,623.40 per year for the next five years, beginning on December 31, 1999. Lastly, paragraph 12E(2) of the agreement required Mr. Becker to withdraw from his profit-sharing plan for payment to Ms. Becker the additional sum of $215,439.70, representing her marital share of his interest in the company’s profit-sharing and pension plan. As a result of these distributions from his pre-tax benefit plans, Mr. Becker incurred a substantial debt to the IRS, of which $19,000 remains unsatisfied.

Mr. Becker’s gross income consists of wages, including added-back personal use of a company automobile and nominal taxable interest income. We did not include the sums received from Mr. Becker’s stock redemption or pension and profit-sharing plan withdrawals as this money was transferred to Ms. Becker in satisfaction pro tanto of his liability in equitable distribution. In 1999, Mr. Becker earned $90,574.

Using a tax status of married filing jointly with three exemptions and the standard deduction, we estimated Mr. Becker’s federal taxes at $15,438, his state taxes at $2,536, his local Philadelphia wage tax at $4,524 and his FICA/Medicare obligation at $5,877, for a total tax liability of $28,375. Deducting this sum from his gross income, Mr. Becker is left with a net annual income of $62,199, or $5,183 net per month.

The parties stipulated that both Christine Becker and Julie Becker have zero earning capacities. As a result, Mr. Becker is 100 percent responsible for his children’s support. According to the statewide guidelines, Mr. Becker’s child support obligation for James, Katherine and Lauren Becker, his children with Christine, is $1,606 per month. This is a reduction from his obligation under the June 9, 1999 order and is the result of a decline in his income. Mr. Becker argued that he should receive a deviation from the guideline support award for his financial responsibilities to his new child; however, such a deviation is generally warranted only when the obligor’s total basic child support obligations exceed 50 percent of his or her monthly net income. Pa.R.C.P. 1910.16-7(1), 42 Pa.C.S. Mr. Becker’s support obligation for the young child with his new wife is $952 per month. Mr. Becker’s total basic child support obligations equal $2,658 per month, which sum is less than 50 percent of is monthly net income. Consequently there will be no deviation from the guidelines at this time on the basis of Mr. Becker’s new family.

Ms. Becker’s request for a contribution from Mr. Becker towards the children’s private Catholic school tuition will be denied. Although Mr. Becker has historically shouldered this responsibility, we find it unreasonable in light of Mr. Becker’s outstanding tax liability and his continuing financial obligation to Ms. Becker, both of which stem from equitable distribution, to require him to continue to bear this burden at present.

Except as modified above, all provisions of the June 9,1999 order remain in full force and effect. Mr. Becker will be entitled to receive a credit in the amount of $100 per month for any overpayments made from the effective date of today’s order. The effective date of this order will be September 27, 1999.

ORDER

And now, June 7, 2000, consistent with the foregoing and based on this court’s determination that Ms. Becker’s monthly net income is $0 and Mr. Becker’s monthly net income is $5,183, it is hereby ordered and decreed that Charles J. Becker Ill’s petition for modification, filed September 27,1999, is granted, Christine Becker’s petition for modification, filed August 2, 1999 is denied, and:

(1) Charles J. Becker III shall pay to the Support Collection and Disbursement Unit in Harrisburg, Pennsylvania for transmission to Christine Becker the sum of $1,606 per month in support of the parties’ three minor children, Charles IV (a/k/a James), d.o.b. October 24, 1982; Katherine, d.o.b. March 16, 1990; and Lauren, d.o.b. August 30, 1991;

(2) Except as modified above, all terms of the parties’ June 9, 1999 order remain in full force and effect;

(3) Charles J. Becker III shall receive a credit in the amount of $100 per month for overpayments made from the effective date of this order;

(4) The effective date of this order is September 27, 1999.


author: McANDREWS, J.,

text:
    In re Appeal of the National Shrine of Our Lady of Czestochowa
    C.P. of Bucks County,
    no. 2000-00468-20-6.

      Edward Rudolph, for Bucks County Board of Assessment Appeals.

      Joseph W. Cunningham, for the National Shrine of Our Lady of Czestochowa.

      John B. Rice, for New Britain Township.

      Thomas E J. MacAniff, for Central Bucks School District.
    June 15, 2000
   McANDREWS, J.,

The matter before the court is a tax assessment appeal filed by the National Shrine of Our Lady of Czestochowa. The real estate in question is located in New Britain Township, Central Bucks School District, in the County of Bucks.

On July 30, 1999, the appellant filed an application with the Board of Assessment seeking real estate tax exemption of 65.42 acres of land identified as tax parcels 26-011-060, 26-012-018, 26-012-018-001, 26-012-018-002 and 26-012-019. The board conducted a hearing on December 7, 1999. After due consideration, appellant’s appeal was denied on the basis that the parcels failed the requisite standards for exemption under the General County Assessment Laws 72 P.S. §§5020-204. An appeal from the board’s decision was filed with this court on January 24, 2000. A hearing de novo was held on April 17, 2000, at which time the court heard testimony from Father Stephen Wozniczka, director of the shrine. No other witnesses were presented.

The witness testified that the shrine is a national place of worship for people of Polish descent in the United States. Over the years, the shrine has assembled a number of parcels to accommodate its needs. There are currently 10 parcels owned by the shrine, comprised of approximately 170 acres. Reference is made to exhibit P-3, which outlines the various tax map parcels. All the parcels are contiguous, and are located on Ferry Road, New Britain Township. Two parcels identified as 26-011-058 and 26-011-059, containing approximately 10 acres, have been previously exempt from taxation as a church, and ground necessary for the occupancy and enjoyment of the same. Three of the parcels containing approximately 52 acres are currently being taxed, and the tax is not challenged. At issue are five parcels containing approximately 64 acres.

The witness further testified that parcel 26-011-060 houses a detention basin which was required to control surface water run-off. Parcel 26-012-019 houses parking areas necessary for the large number of people who attend mass. This parcel also contains a roadway providing ingress and egress from Ferry Road.

Parcels 26-012-018-001 and 002 are used for overflow parking when there are religious activities, such as Holy Mass, and festivals.

Parcel 26-012-018 is an alternate roadway to the church area from Ferry Road. The roadway is approximately 300 feet long and 30 feet wide.

Appellant contends that the parcels in question are annexed to the already exempt church and/or cemetery parcels, and necessary for the occupancy and enjoyment of the place of worship. Respondent contends that the statute authorizing real estate tax exemption is narrow in scope and the property in question exceeds the boundaries of what is reasonable and necessary for the enjoyment of religious activity.

It is well-established that any entity seeking an exemption has the burden of proving entitlement to such an exemption. 72 P.S. §7236; see Four Freedoms House of Philadelphia Inc. v. Philadelphia, 443 Pa. 215, 279 A.2d 155 (1971). It is also required that the statutory provisions creating tax exemptions must be strictly constructed. YMCA v. Reading, 402 Pa. 592, 167 A.2d 469 (1961).

Exemptions from real estate property taxes are authorized by Article VII, Section 2(a) of the Pennsylvania Constitution. Under the assessment law there are numerous exemptions, including churches. Specifically, the statute provides as follows:

(1) “All churches, meeting-houses, or other actual places of regularly state religious worship, with the ground thereto annexed necessary for the occupancy and enjoyment of the same.” 72 P.S. §5020-204(a).

The issue is whether the land and other improvements not now exempt are reasonably necessary for the occupancy and enjoyment of the exempted place of worship.

The Commonwealth Court in Mt. Zion New Life Center v. Board of Assessment and Revision of Taxes and Appeals, 94 Pa. Commw. 439, 451, 503 A.2d 1065, 1069 (1986), addressed the standard to be applied as follows:

“The word ‘necessary’ does not import an absolute necessity, but its meaning cannot be broadened so as to comprehend that which is merely desirable. As used in this statute, the meaning is limited to a reasonable necessity and contemplates among other matters the inclusion of sufficient ground for entrance and exit and for light and air . . . First Baptist Church of Pittsburgh v. Pittsburgh, 341 Pa. 568, 576, 20 A.2d 209, 213 (1941).”

By this standard, that part of a church’s real estate which is necessary for the occupancy and enjoyment of the church building is entitled to an exemption from taxation. Rampp v. Luzerne County Assessment and Valuation Board, 41 D.&C.3d 166 (1986). By this standard, a parcel may be partially exempt, if only a portion of the lot is necessary for the occupancy and enjoyment of the church use.

Taking the parcels in sequence, and applying the foregoing principles, the court concludes as follows:

Parcel 26-011-060, comprised of 5.196 acres, is set aside to house the detention basin required to control surface water run-off caused by the buildings and impervious surfaces existing on the exempt parcels, 26-011-058 and 26-011-059. This parcel is an integrated element of the land development previously exempt. The court finds it a necessary element to the enjoyment of the improved exempt parcels and, therefore, exempt.

Parcel 26-012-019, comprised of 18.531 acres, contains principal roadways leading in and out of the previously exempt parcels, and parking areas used on a regular basis for the religious activities conducted on the exempt parcels. The court finds these uses reasonable and necessary for the enjoyment of the exempt place of worship.

Parcel 26-012-018 contains a roadway to serve as an alternate roadway to and from the parking area on parcel 26-012-019. The entire parcel consists of 15 acres. The roadway bisecting the parcel is 30 feet wide and 300 feet long for a total of 5,000 square feet. Calculating the 15 acres to contain 630,000 square feet, the court finds that the roadway represents .014 percent of the entire parcel, and that the roadway portion is exempt as reasonable and necessary for the enjoyment of the exempt religious activity.

Parcels 26-012-018-001 and 26-012-018-002 contain a total of approximately 26 acres. The parcels are unimproved and according to the testimony they are frequently used for overflow parking of buses and other large vehicles which have transported those attending mass and other activities during the special holy days and feast days. The witness testified that these parcels are used to park the buses that transport the visitors to the church services and the related festivals. The witness’ testimony is uncontradicted on the need for the areas to be available to handle the parking on occasions. Without this area being available there would be no place to park the buses and other vehicles. The court finds that the overall religious activity and related festivals generates a high volume of traffic on regular occasions to necessitate this reserve parking area and, therefore, it is exempt under the law.

For the foregoing reasons, the court does enter the attached order declaring the parcels in question exempt from real estate property taxes in whole, or in part, as set forth in the order.

ORDER

And now, June 15, 2000, upon consideration of the petition for exemption under 72 P.S. §5020-204(a)(l) of the Tax Assessment Law, it is ordered and directed that the following tax map parcels be and are hereby exempt from real estate taxes, commencing with the tax year 1999 and continuing until further order of court:

Tax Map Parcel 26-012-019 is exempt.

Tax Map Parcel 26-011-060 is exempt.

Tax Map Parcel 26-012-018-001 is exempt.

Tax Map Parcel 26-012-018-002 is exempt.

Tax Map Parcel 26-012-018 is subject to taxes except for .014 percent allocated to the roadway which is exempt.


author:
STALLONE, J.,
     “BY: /s/ Joseph A. O’Keefe “Joseph A. O’Keefe “O’Keefe & Sher” “By: /s/ Joseph A. O’Keefe KAT “Joseph A. O’Keefe “O’Keefe & Sher “JO’K/kat

text:
    Jagco Inc. v. Donald and Domenic Mente Partnership
    C.P. of Berks County,
    no. 99-8603.

      William E. Gericke, for appellant.

      Joseph A. O’Keefe, for appellee.

      June 2, 2000
   STALLONE, J.,

This is a breach of contract action arising out of the construction by the appellant, Jagco Inc., of an automobile dealership building for the appellee, Donald and Domenic Mente Partnership, in Maxatawny Township. Jagco commenced this action by filing a complaint to which the partnership filed an answer and new matter. In its new matter, the partnership averred that it had a right to a setoff against any recovery by Jagco on its underlying claim against the partnership. Jagco filed a reply to the partnership’s new matter.

On January 26, 2000, the partnership filed a motion for partial summary judgment averring that Jagco’s reply to the factual allegations set forth in the partnership’s new matter consisted of general denials which constitute admissions under Pa.R.C.P. 1029(b) and, therefore, it was entitled to judgment in its favor on its claim for a setoff in the amount of $220,000.

Attached to the motion for partial summary judgment was a certificate of service which was signed by Joseph A. O’Keefe, Esquire, attorney for appellee, which read as follows:

“Certificate of Service

“I, Joseph A. O’Keefe, Esquire, certify that I served a certified copy of the foregoing pleading upon the following counsel on the date set forth below, by regular United States Mail and as follows:

“William E. Gericke, Esquire

“1900 Market Street

“The Atrium

“Philadelphia, PA 19103

“Attorney for plaintiff

“Dated this 25th day of January, 2000

“BY: /s/ Joseph A. O’Keefe

“Joseph A. O’Keefe

“O’Keefe & Sher”

The service of the certified copy of the motion for partial summary judgment upon counsel for Jagco was accompanied by the following transmittal letter which has been filed with this court:

“January 26, 2000

“William E. Gericke, Esquire

“1900 Market Street, The Atrium

“Philadelphia, PA 19103

“Re: Jagco Inc. v. Donald and Domenic Mente Partnership, court of common pleas no. 99-8603

“Dear Mr. Gericke:

“Enclosed for service, please find a true and correct copy of defendant’s motion for partial summary judgment filed in Berks County Court for the above referenced matter.

“In the event you have any questions or concerns, please do not hesitate to contact me.

“As always,

“Sincerely,

“By: /s/ Joseph A. O’Keefe KAT

“Joseph A. O’Keefe

“O’Keefe & Sher

“JO’K/kat

“Enclosure”

Pa.R.C.P. 1035.3(a) required Jagco to file a written response to this motion for partial summary judgment within 30 days after the date of service identifying evidence in the record sufficient to create a genuine issue of material fact relative to the allegations contained in the partnership’s new matter. Rule 1035.3(a) reads as follows:

“(a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying

“(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or

“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.”

On February 29, 2000, the partnership filed another motion with this court asking that it grant the partnership’s motion for partial summary judgment due to Jagco’s failure to respond thereto pursuant to Pa.R.C.P. 1035.3(d), which reads as follows:

“(d) Summary judgment may be entered against a party who does not respond.”

This court, after waiting almost a week, reviewed the entire official record to determine whether a response had been filed by Jagco and finding that there was none, entered the following order granting the partnership’s motion for partial summary judgment:

“And now, March 6, 2000, upon consideration of the defendant’s motion for partial summary judgment and the plaintiff having failed to respond thereto, the same is hereby granted. Pa.R.C.P. 1035.3(d).

“Accordingly, judgment is hereby entered in favor of the defendant, Donald and Domenic Mente Partnership, and against the plaintiff, Jagco Inc., in the amount of $220,000 but only as a “setoff’ against any amount recovered by the plaintiff in this action and not as an amount due and owing by the plaintiff to the defendant.”

It is undisputed that Pa.R.C.P. 1035.3(d) vests a trial court with the authority to enter judgment in favor of the moving party when the non-moving party fails to respond to a motion for summary judgment. Payton v. Pennsylvania Sling Co., 710 A.2d 1221 (Pa. Super. 1998); Smitley v. Holiday Rambler Corp., 707 A.2d 520 (Pa. Super. 1998). Therefore, the sole issue is whether this court abused its discretion and/or erred as a matter of law in granting the partnership’s motion for partial summary judgment.

In the exercise of our sound discretion, we determined that judgment was appropriate on March 6, 2000, inasmuch as the certificate of service filed of record clearly stated that a copy of the motion was served upon Jagco at the address of Jagco’s counsel on January 25, 2000; and, it is well settled, as a matter of Pennsylvania law, that the depositing of the same properly addressed at the post office, which is not returned, raises a presumption that it reached its destination. Berkowitz v. Mayflower Securities Inc., 455 Pa. 531, 317 A.2d 584 (1974); Chartiers Industrial and Commercial Development Authority v. Allegheny County Board, 165 Pa. Commw. 671, 645 A.2d 944 (1994).

And although Jagco filed a motion for reconsideration of our March 6, 2000 order on March 29, 2000, in which it avers that its counsel did not receive a copy of the motion for partial summary judgment until February 22, 2000, and, in support thereof, attaches a sworn affidavit from the secretary of its counsel, that also avers that when they received it the motion was not accompanied by a certificate of service or a transmittal letter, the fact of the matter is that on March 31, 2000, before this court could take any action on the motion for reconsideration, Jagco filed a direct appeal to the Superior Court of Pennsylvania from this court’s March 6, 2000, order, thereby depriving this court of any further subject matter jurisdiction. Pa.R.A.P. 1701.

Accordingly, we affirm our order granting the partnership’s motion for partial summary judgment and respectfully urge the Superior Court of Pennsylvania to deny this appeal.


author: STALLONE,

text:
    McGee v. Rabzak

      C.P. of Berks County,
    nos. 5749-95 A.D., 98-1030.

      Alan B. Ziegler, for appellee.

      Stanley A. Rabzak, appellant, pro se.
    May 31, 2000
   STALLONE,

This is a breach of contract action arising out of the sale of a single-family residence by the appellant, Stanley A. Rabzak, to the appellee, Lisa McGee. On February 12, 1997, Paul T. Essig, Esquire, attorney for the appellant, filed a petition to withdraw as counsel for appellant, claiming that appellant was not cooperating with him in preparing responses to discovery requests by the appellee. This court granted Attorney Essig’s petition after a hearing held on April 10, 1997. Thereafter, the parties submitted this matter to arbitration, at which time appellant chose to represent himself. The board of arbitrators entered an award in favor of the appellee in the amount of $27,531.

No further action took place until September 30,1999, when appellant filed a proposed order for transcription of the notes of testimony of the hearing held on Attorney Essig’s petition to withdraw as counsel. This court denied that request by order entered on October 4,1999. This timely appeal followed.

Under Pennsylvania law, an appeal will not be permitted unless it is from either a “final order,” an interlocutory order which is appealable as a matter of right, an interlocutory order from which an appeal is permitted by the appellate court or a “collateral” order from which an appeal can be taken as a matter of right. See Foflygen v. Zemel, 420 Pa. Super. 18, 615 A.2d 1345 (1992).

Pa.R.A.P. 341(b) defines a “final order” as one which either disposes of all claims and all parties or that is expressly defined by statute as such or is entered as a final order pursuant to Pa.R.A.P. 341(c). It is clear, therefore, that the order from which this appeal has been taken is not a “final order” inasmuch as it does not dispose of all of the claims and all of the parties or that it is not defined by statute as a final order and it was not entered as a final order from which this court has determined that an immediate appeal would facilitate resolution of the entire case. Dorohovich v. West American Insurance Co., 403 Pa. Super. 412, 589 A.2d 252 (1991).

Instead, our order is clearly an interlocutory order. We must, therefore, determine whether it is immediately appealable as a matter of right, Pa.R.A.P. 311 sets forth the type of interlocutory orders which are appealable as a matter of right as follows:

“(1) Affecting judgments. An order refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

“(2) Attachments etc. An order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property, except for orders pursuant to sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. §§3323(f) and 3505(a).

“(3) Change of criminal venue or venire. An order changing venue or venire in a criminal proceeding.

“(4) Injunctions. An order granting, continuing modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except for injunctions pursuant to sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. §§3323(f) and 3505(a). A decree nisi granting or denying an injunction is not appealable as of right under this rule, unless the decree nisi (i) grants an injunction effective upon the entry of a decree nisi or (ii) dissolves a previously granted preliminary injunction effective upon the entry of a decree nisi.

“(5) Peremptory judgment in mandamus. An order granting peremptory judgment in mandamus.

“(6) New trials. An order in a civil action or proceeding awarding a new trial, or an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge or where the Commonwealth claims that the lower court committed an error of law.

“(7) Partition. An order directing partition.

“(8) Other cases. An order which is made appealable by statute or general rule.”

Our order does not fall within any of these categories. See Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987). Therefore, it is not an interlocutory order which is immediately appealable as a matter of right.

It is likewise not an appeal from an interlocutory order which has been taken by permission. Although appellant filed a notice of appeal to the Superior Court from our order, he did not first request this court to amend its order to include the following certification language which is required by section 702(b) of the Judicial Code:

“(b) Interlocutory appeals by permission. — When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.”

Compliance with that portion of section 702(b) is a prerequisite to a determination by the appellate court as to whether it will permit such an appeal to be filed and appellant has failed to follow this procedure. Techtmann v. Howie, 720 A.2d 143, 146 (Pa. Super. 1998). As a result, this appeal has not been properly taken by permission.

Finally, we must determine whether our action, being complained of, is a “collateral order” from which an appeal can be taken as a matter of right pursuant to Pa.R.A.P. 313. Such an order has been defined as being one in which (1) the issue is separable from and, therefore, “collateral” to the main cause of action, (2) the right involved is too important to be denied review and (3) the question presented is such that, if review is postponed until final judgment is entered in the case, the claimed right will be irreparably lost. Kronz v. Kronz, 393 Pa. Super. 227, 574 A.2d 91 (1990).

In the action before us, the appellant has failed to demonstrate that, although the right is separable to the main cause of action, the right involved is of the type that is too important to be denied immediate review, inasmuch as this action has been concluded. For the same reason, he has likewise failed to demonstrate that his claimed right will be lost without immediate review. See Hahalyak v. Integra Financial Corporation, 451 Pa. Super. 171, 678 A.2d 819 (1996). Therefore, we conclude that our determination not to allow a transcription of the testimony of the hearing held on Attorney Essig’s petition to withdraw as counsel is not appealable as a “collateral order.”

And so, for these reasons, we respectfully urge the Superior Court of Pennsylvania to quash this appeal as not being properly within its appellate jurisdiction.

      . Appellant did not appeal that award to this court of common pleas. Accordingly, on March 20,1998, the appellee entered judgment on the award against the appellant in the office of the prothonotary of Berks County.

      . Appellant also filed a second proposed order for transcription on October 5,1999, which this court denied by order entered on October 8, 1999. That order, however, is not the subject of this appeal.

      . Pa.R.A.P. 341(c) provides that:
      “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order.”

      . Title 42, 42 Pa.C.S. §702(b) (Supp. 2000).


text:
    Shaffer v. Shaffer

      C.P. of Chester County,
    no. 02039 N 1999.

      Jane Marks, for plaintiff.

      William Litvin, for defendant.
    May 16, 2000
   ENDY, S.J.,

Debora and Craig Shaffer married on June 27, 1987, a few days after executing a prenuptial agreement purporting to fix their marital property rights in the event of divorce or death. Two years later, the couple had their first and only child, Nina, on October 6, 1989. Ms. Shaffer is a teacher who has also earned 18 credits towards a Master’s degree in counseling. She is currently employed part-time as a substitute elementary school teacher in the Downingtown Area School District. She also works for a temporary service and does some private tutoring. Mr. Shaffer is a paramedic nurse at Brandywine Hospital and a part-time game warden for the Commonwealth.

The couple separated on November 4, 1999. Mr. Shaffer left the marital domicile, in which Ms. Shaffer continues to reside with Nina. Ms. Shaffer filed for spousal and child support that same day. At a support conference on December 9, 1999, Mr. Shaffer raised the prenuptial agreement as a bar to Ms. Shaffer’s spousal support request. The court entered a temporary order for child support in the amount of $620 per month and scheduled this matter for a long-day listing. We held an evidentiary hearing on April 11, 2000, at which both parties appeared and were represented by counsel.

Mr. Shaffer’s 1999 W-2 recorded a gross annual income of $49,998. In addition, he received $1,050 in 1999 as a game warden. Dividing equally the other sources of income reported on the parties’ federal form 1040, Mr. Shaffer received $187 in taxable interest income, $821 in ordinary dividends, $2,716 in capital gains (a source of income the Shaffers have historically experienced, according to previous federal returns), and $2,076 representing Mr. Shaffer’s share of the parties’ 1998 income tax refund received in 1999. Mr. Shaffer’s total gross income for 1999 is $56,848.

Calculating his tax liability under the status of married filing separately, as the parties are under no obligation to continue to file jointly, with the standard deduction and one personal exemption, we find Mr. Shaffer would pay $ 11,341 in federal taxes, $ 1,592 in state taxes, $510 in local wage tax, and $3,905 in FICA/Medicare taxes, for a total tax liability of $17,348. Deducting Mr. Shaffer’s taxes from his gross income, we find Mr. Shaffer has a net annual income of $39,500, or $3,292 net per month.

Ms. Shaffer earned $5,766 as a substitute teacher in 1999 and $2,920 from temporary work, according to her W-2s. At the hearing, Mr. Shaffer produced records from Ms. Shaffer’s employer that indicated Ms. Shaffer turned down a substantial amount of substitute teaching work in 1999. Ms. Shaffer declined 13 days’ work in the fall of 1999. (See exhibit D-ll.) We will impute the amount of income she could have earned had she accepted her assignments, $1,040, to her gross annual income. In addition, we find it reasonable to attribute an earning capacity to Ms. Shaffer reflecting her ability to engage in private tutoring in the summer months. We accept Mr. Shaffer’s vocational expert’s opinion that Ms. Shaffer could earn $2,000 from this part-time occupation. Lastly, we will incorporate Ms. Shaffer’s share of the parties’ joint sources of income as reported on their 1999 form 1040. According to the parties’ joint federal form 1040, Ms. Shaffer received $187 in taxable interest income, $821 in ordinary dividends, $2,716 in capital gains, and $2,076 in 1998 refund money received in 1999. Adding these figures, Ms. Shaffer has a gross annual income/ earning capacity of $17,526.

Calculating her tax liability under the tax status of married filing separately with the standard deduction and two personal exemptions, we find Ms. Shaffer would pay $1,264 in federal taxes, $491 in state taxes, $117 in local wage tax, and $897 in FICA/Medicare contributions, for a total tax liability of $2,769. Deducting this figure from Ms. Shaffer’s gross annual income yields a net annual income of $14,757, or $1,230 per month. However, Ms. Shaffer also receives a tax-free annuity in the amount of $ 1,000 per month. Adding this sum to her other income, we find Ms. Shaffer receives $2,230 net per month.

Together, the parties earn $5,522 net per month. At the parties’ income level, the guidelines instruct that $999 per month shall be allocated to the support of one child. Mr. Shaffer has 60 percent of the parties’ combined income, therefore he is responsible for 60 percent of Nina’s basic support, or $599 per month. However, Mr. Shaffer is entitled to a deduction from support in the amount of $26 per month, representing Ms. Shaffer’s contribution to the family’s health insurance premiums, as Mr. Shaffer maintains the family’s health insurance coverage. Thus, Mr. Shaffer’s net child support obligation is $573 per month.

Having reviewed the parties’ prenuptial agreement, we are satisfied that it does not abrogate Ms. Shaffer’s right to support. The agreement does not provide that there has been a full and fair disclosure to both parties of the marital property rights waived. See Cooper v. Oakes, 427 Pa. Super. 430, 629 A.2d 944 (1993) (full and fair disclosure includes disclosure of marital property rights waived); Simeone v. Simeone, 380 Pa. Super. 37, 551 A.2d 219 (1988), aff’d, 525 Pa. 392, 581 A.2d 162 (1990); cf. Hamilton v. Hamilton, 404 Pa. Super. 533, 591 A.2d 720 (1991) (prenuptial agreement upheld where wife specifically waived right to spousal support). Consequently, applying the formula at Pa.R.C.P. 1910.16-4(a)(IV), Ms. Shaffer is entitled to spousal support in the amount of $ 147 per month. In addition, provided Ms. Shaffer is paying the marital mortgage, and as the mortgage exceeds 25 percent of her net monthly income as defined in Pa.R.C.P. 1910.16-6(e), Ms. Shaffer is entitled to a contribution from her husband towards the mortgage payments. Mr. Shaffer shall be required to contribute the sum of $119 per month, representing his obligation on the marital residence’s mortgage, provided Ms. Shaffer pays the marital mortgage and keeps the payments current.

Ms. Shaffer has also requested that Mr. Shaffer contribute to Nina’s equestrian expenses, share the fees of a non-networlc psychological services provider, and pay for a tutor for Nina. These requests are denied. Ms. Shaffer paid the bulk of Nina’s equestrian expenses while the parties were an intact family; we are not persuaded to change this practice upon separation. As to the second request, Mr. Shaffer will, of course, be required to maintain health insurance coverage for his wife and child, but we will not impose upon him the obligation to provide more expensive, non-network services. The parties will be required to bear the responsibility for unreimbursed medical expenses, as that term is defined in Pa.R.C.P. 1910.16-6(c)(l), in proportion to their net incomes, with Mr. Shaffer responsible for 60 percent of said expenses and Ms. Shaffer responsible for the remaining 40 percent. Ms. Shaffer will be required to shoulder the responsibility of remitting the co-pays and other charges associated with continuing Nina in non-network counseling services. Lastly, Ms. Shaffer is a highly esteemed educator; we find that she can provide any tutoring services Nina may require.

ORDER

AND NOW, May 16, 2000, consistent with the foregoing opinion, and based on this court’s determination that Mr. Shaffer’s net monthly income is $3,292 and Ms. Shaffer’s net monthly income/eaming capacity is $2,230, it is hereby ordered and decreed that

(1) Craig W. Shaffer shall pay to the Support Collection and Disbursement Unit in Harrisburg, Pennsylvania for transmission to Debora Shaffer the sum of $573 per month in support of the parties’ minor child, Nina, d.o.b. October 6, 1989;

(2) Craig W. Shaffer shall pay to the SCDU in Harrisburg, Pennsylvania for transmission to Debora Shaffer the sum of $147 per month as spousal support;

(3) Craig W. Shaffer shall maintain health insurance coverage for Debora and Nina and the parties shall bear responsibility for unreimbursed medical expenses, as that term is defined in Pa.R.C.P. 1910.16-6(c)(l), in proportion to their net incomes, with Mr. Shaffer responsible for 60 percent of said expenses and Ms. Shaffer responsible for the remaining 40 percent;

(4) Provided Ms. Shaffer is paying the mortgage on the marital residence, and so long as she continues to pay said mortgage and keep it current Mr. Shaffer shall pay to the SCDU in Harrisburg, Pennsylvania the additional sum of $119 per month, as representative of his contribution to the mortgage obligation;

(5) Mr. Shaffer shall pay to the SCDU in Harrisburg, Pennsylvania the additional sum of $50 per month towards arrears until paid in full;

(6) Mr. Shaffer shall receive a credit against arrears for payments made pursuant to the temporary order entered December 9, 1999;

(7) The effective date of this order is November 4, 1999.

      . Mr. Shaffer also received an award in settlement of a wage dispute with his employer. The parties, however, agreed to exclude this sum from the calculations.


author: QUIGLEY, P.J.,

text:
    May v. Hall
    C.P. of Perry County,
    no. 99-152.

      W Scott Henning, for plaintiff.

      Jay W Stark, for defendant PennDOT.

      Amy L. Coryer, for defendant Hall.

      Mark T Riley, for defendant Wheatfield Township.

      Frank L. Tamulonis, for defendant Penn Township.

      David L. Schwalm, for defendant Perry County.
    March 23, 2000
   QUIGLEY, P.J.,

Defendants Wheatfield Township and Penn Township request summary judgment in the above matter.

In this case, Penn Township contracted with Wheat-field Township to do some work on Township Road in the area of defendant Hall’s driveway. Because of the contractual relationship between the two townships, we believe that any negligence of Wheatfield Township will be imputed to Penn Township by virtue of the principles of respondeat superior. Also, we believe both the townships being Pennsylvania municipalities, that they are equally the beneficiaries of any favorable immunity legislation that might exist in the premises.

Operatively, accepting all of plaintiff’s facts, circumstances and inferences for purposes of the summary judgment issue, we find that the townships, through their maintenance of Commonwealth realty allowed cinders to accumulate on defendant Hall’s driveway to a point where a four-inch drop was created by the activities of the township. Although the language of the Political Subdivisions Tort Claims Act suggests that there must be a dangerous condition “of streets,” 42 Pa.C.S. §8542(b)(6)(i), the Pennsylvania Supreme Court has interpreted this language to include dangerous conditions that “derive, originate from or have as its source the Commonwealth realty.” Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989). Furthermore, since they based this interpretation on the dictionary definition of the operative word “of,” id., we see its application applicable to all of the exceptions contained in the Act.

Because we believe that the alleged condition (cinders near a drop) originated from Commonwealth realty, and assume that the condition was the cause of plaintiff’s fall on defendant Hall’s driveway, we think that neither of the townships can, at this point, be stricken from the suit on the basis of immunity.

Accordingly, we shall dismiss each township’s motion for summary judgment.

ORDER

And now, March 23, 2000, for the reason set forth in the within memorandum, motions of the townships for summary judgment are denied.


text:
    Kondracki v. Mechanics’ Choice Warranty Corp.

      C.P. of Berks County,
    no. 97-3424.

      Michael Power, for appellee.

      Bradley D. Miller, for appellant.
    June 9, 2000
   STALLONE,

This is a breach of warranty action. In 1996, the appellee, Tanya Kondracki, purchased a used 1990 Mitsubishi Eclipse from Auto Ventures Inc., a used car dealership in York, Pennsylvania, and a written six month/6,000 mile warranty from the appellant, Mechanics’ Choice Warranty Corp. After she purchased the vehicle, she began to hear a “grinding” noise in the transmission and thereafter experienced engine failure. She asked Mechanics’ Choice to cover the cost of repairing both items under the warranty, but it refused her request. Therefore, after paying the repair costs herself in the amount of $3,707.16, she commenced this action in which she alleged that Mechanics’ Choice breached the warranty by refusing to provide coverage for the repair costs. Mechanics’ Choice denied all liability on the basis that Ms. Kondracki herself breached the written warranty by not taking her vehicle for inspection to an authorized repair facility, as required by the terms of the warranty.

Following a trial, a jury entered a verdict in favor of Ms. Kondracki and against Mechanics’ Choice in the amount of $3,782.16 plus court costs. Thereafter, this court held a hearing on Ms. Kondracki’s claims for attorney’s fees under the Magnuson-Moss Federal Trade Commission Improvement Act (the Magnuson-Moss Act) and for an additional award of money damages under the Pennsylvania Unfair Trade Practices and Consumer Protection Law. On July 26, 1999, this court entered the following in disposition of all of Ms. Kondracki’s claims:

“ ‘Molded’ Verdict

“July 26, 1999, this court finds in favor of the plaintiff, Tanya Kondracki, and against the defendant, Mechanics’ Choice Warranty Corp., in the amount of $12,682.16 plus court costs, consisting of the verdict of the jury entered June 28, 1999, in the amount of $3,782.16, plus court costs and $8,900 in attorney’s fees pursuant to The Magnuson-Moss Federal Trade Commission Improvement Act, Title 15, 15 U.S.C. §2319(d)(2) (West 1999).

“This court finds in favor of the defendant, Mechanics’ Choice Warranty Corp., and against the plaintiff, Tanya Kondracki, on her claim for damages under the Pennsylvania Unfair Trade Practices and Consumer ProtectionLaw, title 73, 73 P.S. §201-1 etseq. (Supp. 1999).”

Mechanics’ Choice thereafter filed a motion for post-trial relief seeking judgment n.o.v. or, in the alternative, a new trial, which this court denied. This timely appeal followed.

Mechanics’ Choice’s first argument is that this court erred in instructing the jury that it could award the full cost of repairs for both the transmission and the engine, if it found that Mechanics’ Choice breached the warranty, when the terms of the warranty provided that only 80 percent of the cost of the repairs would be covered, subject to a $20 deductible. However, Mechanics’ Choice never submitted to this court a proposed point for charge to the jury on this matter and failed to raise any objection thereto after this court’s charge to the jury on the law which it was to apply to the evidence. Accordingly, this issue must be deemed waived. In re Estate of Fonos, 698 A.2d 74, 79 (Pa. Super. 1997).

Next, Mechanics’ Choice contends that we erred in allowing Ms. Kondracki to place the paid repair bills into evidence without authentication testimony from the person who made the repairs. It is well settled that, under Pennsylvania law, evidentiary rulings are matters which are addressed to the sound discretion of the trial court and, therefore, will be reversed only upon a showing of an abuse of discretion. Cooke v. Equitable Life Assurance Society of United States, 723 A.2d 723 (Pa. Super. 1999); American States Insurance Co. v. Maryland Casualty Co., 427 Pa. Super. 170, 628 A.2d 880 (1993). The Supreme Court of Pennsylvania defined the term “abuse of discretion” in Commonwealth v. Lane, 492 Pa. 544, 549, 424 A.2d 1325, 1328 (1981), as follows:

“An abuse of discretion is more than just an error of judgment and, on appeal, a trial court will not be found to have abused its discretion unless the record discloses that ‘the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.’ ”

Moreover, where a trial court’s ruling on evidence is the basis for the request for a new trial, as it is in this case, the complaining party must show not only that the ruling was in error but also that it caused prejudice to that party. Dougherty v. Edward J. Meloney Inc., 443 Pa. Super. 201, 661 A.2d 375 (1995).

In the exercise of our sound discretion, we determined that the repair bills which she personally paid were admissible as support for Ms. Kondracki’s testimony concerning the amount of the repair costs. Mechanics’ Choice has not alleged, let alone made any showing, that our admission of this evidence for this limited purpose was either manifestly unreasonable or the result of partiality, prejudice or ill will. And, more importantly, even assuming, arquendo, that our ruling was in error, Mechanics’ Choice has not alleged that it caused prejudice to its case inasmuch as this court gave Mechanics’ Choice the opportunity to cross-examine Ms. Kondracki and to present evidence to dispute the paid repair bills (N.T., trial, p. 61) but it chose not to do so. Therefore, we find that we did not abuse our discretion in admitting the paid repair bills into evidence.

Mechanics’ Choice also argues that this court erred in allowing Ms. Kondracki to testify concerning the actual repair costs, as well as the nature and the necessity and the reasonableness of the repairs made to her vehicle on the basis that such testimony was inadmissible hearsay. As this issue also involves an evidentiary ruling which was committed to the sound discretion of this court, our ruling may be reversed only upon a finding of a clear abuse of discretion. American States Insurance Co., supra. Since there was no dispute that the transmission and engine in Ms. Kondracki’s vehicle failed, she certainly was competent to testify as to how much she paid for these repairs and to give her opinion as to the nature, necessity and reasonableness of these costs. See Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979). Moreover, Mechanics’ Choice would have had the opportunity to determine the necessity and reasonableness of the costs of repairs had Penn Diagnostic, which was the authorized repair facility referred to her by Mechanics’ Choice, not refused to do so when she took her car to that location on two separate occasions. (N.T., trial, pp. 134-36.)

Furthermore, even assuming, arquendo, that we erred in admitting such testimony, Mechanics’ Choice once again has failed to allege, let alone make any showing, that this court’s admission of such testimony was either manifestly unreasonable or the product of partiality or that it caused prejudice to Mechanics’ Choice. And, again, Mechanics’ Choice had the opportunity to present evidence to dispute Ms. Kondracki’s testimony on those matters but chose not to do so. Therefore, we conclude that we did not abuse our discretion in admitting this testimony.

That leaves us with Mechanics’ Choice’s final argument that this court should not have awarded damages to Ms. Kondracki under the Magnuson-Moss Act because it applies only to warranties and the contract in dispute is a “service contract” to which that Act does not apply. We disagree. Section 2310(d)(1) of the Magnuson-Moss Act plainly provides that the Act applies to service contracts, as follows:

“(1) Subject to subsections (a)(3) and (4) of this section, a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief — .”

Therefore, we affirm our order denying Mechanics’ Choice’s motion for post-trial relief and respectfully urge the Superior Court of Pennsylvania to deny this appeal.

      . All italicized language in this memorandum opinion is for emphasis only.

      . Title 15, 15 U.S.C. §2319(d)(2) (West 1999).

      . Title 73, 73 P.S. §201-1 et seq. (Supp. 1999). Section 204-9 of this law permits a trial court, in its discretion, to award three times the amount of actual damages sustained by a plaintiff as a result of a violation of one or more provisions of this law.

      . Mechanics’ Choice cites Gillen Appeal, 236 Pa. Super. 521, 344 A.2d 706 (1975), and Commonwealth of Pennsylvania, Department of General Services v. G. Weinberger Co., 65 Pa.Commw. 201, 441 A.2d 1341 (1982), in support of its argument on this issue. However, we find that Gillen is distinguishable because that case involved the admission into evidence of repair estimates, as opposed to paid repair bills. The Weinberger case is likewise distinguishable because there, the Pennsylvania Department of General Services failed to present any testimony relative to the amount of its damage claims, whereas Ms. Kondracki testified as to the cost to repair the damaged transmission and engine.

      . Under Pennsylvania law, “hearsay” is defined as an out-of-court statement offered to prove the truth of the matter asserted therein. Pa.R.E. 801; Samarin v. GAF Corporation, 391 Pa. Super. 340, 571 A.2d 398 (1989), appeal denied, 524 Pa. 624, 574 A.2d 66 (1990).