author: NEALON, J.,

text:
    Ledcke v. County of Lackawanna

      C.P. of Lackawanna County,
    No. 12 CV 6701.

      Shawn Michael Ledcke, pro se petitioner.

      Donald J. Frederickson, Jr., for respondent.
    February 7, 2013
   NEALON, J.,

Petitioner, Shawn Michael Ledcke (“Ledcke”), has filed a petition seeking to enforce a final determination of the Office of Open Records (“OOR”) relative to records and materials in the custody of the Lackawanna County Prison that the OOR found to be discoverable under the Pennsylvania Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101-67.3104. (Docket Entry No. 1). Defendant, County of Lackawanna (“the county”), filed a response to Ledcke’s petition, and an evidentiary hearing was conducted on January 31, 2013. (Docket Entry No. 6). For the reasons set forth below, Ledcke’s petition to enforce will be dismissed as moot and his request for an award of fees and expenses will be denied.

Factual Background

On April 9,2012, Ledcke submitted a RTKL request to the county seeking fifteen itemized categories of digital, paper and electronic records pertaining to his incarceration at the Lackawanna County Prison between June 15, 2010, and September 10, 2010. More specifically, Ledcke demanded access to records concerning an incident in which he was involved at the county prison on August 9, 2010, as well as his subsequent disciplinary hearing on August 19, 2010. (See Ledcke letter to OOR appeals officer, Kyle Applegate, Esq., dated 9/27/12, pp.2-4). Ledcke’s RTKL request also sought copies of his “medical records” and “psycology (sic) & psyciatrist (sic) records” that were “developed at L.C.P. [Lackawanna County Prison] between 6/1/10 & 9/30/10.” (Id. at p.3).

The county did not respond to Ledcke’s RTKL request, nor did it request an extension of time within which to answer pursuant to 65 P.S. § 67.902, as a result of which Ledcke’s request was deemed denied under section 901 of the RTKL. See 65 P.S. § 67.901 (“The time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency. If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied.”). On May 7, 2012, Ledcke filed an appeal of the county’s deemed denial with the OOR in accordance with Section 1101 oftheRTKL. See 65 P.S. § 67.1101(a)(l)(“If a written request for access to a record is...deemed denied, the requester may file an appeal with the Office of Open Records...within 15 business days of a deemed denial.”). Upon receipt of Ledcke’s appeal, the OOR Appeals Officer “invited both parties to supplement the record,” but “[n] either party did so.” (OOR Final Determination dated 6/6/12 at p.2).

On June 6,2012, the OOR issued a Final Determination granting Ledcke’s appeal in part and denying it in part. Noting that local agency records are presumed to be public and accessible unless they are exempt by federal or state law, regulation or decree, see 65 P.S. § 67.305, the appeals officer found “that the county did not meet its burden under the RTKL of proving that the requested records are exempt from disclosure.” (Id. at p.3 (citing 65 P.S. § 67.708(a)(1)). Nevertheless, the OORconcluded that “[notwithstanding the county’s failure to meet its burden of proof under the RTKL, [Ledcke’s] medical records are exempt from disclosure under the Flealth Insurance Portability and Accountability Act of 1996 (“HIPAA”)” and the regulations promulgated under HIPAA. (Id. at pp. 3-4 (quoting 45 C.F.R. § 164.502(a)). The appeals officer further reasoned that Ledcke’s request for his “mental health treatment” records sought documents that must “be kept confidential” and are, therefore, exempt from disclosure by Section 111 of the Mental Health Procedures Act (“MHPA”), 50 P.S. § 7111. (Id. at p. 4). Thus, the appeals officer held that “to the extent [Ledcke] seeks records relating to medical and mental health treatment, the appeal is denied.” (Id.). As a consequence, the OOR directed the county “to provide all responsive records, with the exception of [Ledcke’s] medical and mental health records, to [Ledcke] within thirty (30) days.” (Id.).

The county failed to produce those records which the OOR had determined were discoverable, and as a result, Ledcke filed the instant “petition to enforce final determination of office of open records pursuant to section 1302 of the Pennsylvania Right-To-Know Law, 65 Pa.C.S. § 67.1302” seeking the prompt production of those records and the assessment of fees and costs against the county pursuant to 65 P.S. § Ledcke’s requested relief should not be granted, and an evidentiary hearing was scheduled for December 11,2012. (Docket Entry No. 1). After that order was served upon the county, the open records officer for the county filed a “final determination affidavit” attesting that the county had forwarded all the responsive records to Ledcke via the Federal Correctional Institution in Talladega, Alabama. (Docket Entry No. 4, Exhibit A). The county filed a response to Ledcke’s petition on November 16,2012, and at the request of the county, the hearing was continued to Januaiy 31, 2013. (Id. Nos. 4, 6).

At the time of the evidentiary hearing, the county represented that once Ledcke filed his change of address of record, (Id. No. 5), it resent the responsive materials to Ledcke at the federal penitentiary in Florence, Colorado. The county Solicitor stated that Ledcke subsequently contacted him by telephone and indicated that the prison officials in Colorado were not granting him access to the county’s RTKL response and records. At Ledcke’s request, the county Solicitor forwarded a third set of responsive materials to Ledcke’s relative, Lacrsa Williams, in Sydney, Ohio. Neither the county nor the court has received any further communication or filing from Ledcke.

Validity of “Petition to Enforce”

Ledcke instituted this action by filing a “petition to enforce final determination of office of open records” pursuant to 65 P.S. § 67.1302. Section 1302 of the RTKL governs the jurisdiction of common pleas courts in RTKL disputes following a final determination by the OOR relating to records of local agencies, and states that “[wjithin 30 days of the mailing date of the final determination of the [OOR] relating to a decision of a local agency issued under section 1101(b), or of the date a request for access is deemed denied, a requester or local agency may file a petition for review or other document as required by rule of court with the court of common pleas for the county where the local agency is located.” 65 P.S. § 67.1302(a). By its plain language, section 1302 only authorizes the filing of “a petition for review or other document as required by rule of court” as the appropriate procedural device for invoking common pleas court jurisdiction, and does not provide for the filing of a civil action by way of a “petition to enforce.”

Under Pennsylvania Rule of Civil Procedure 1007, a civil action may be commenced solely by the filing of a complaint or a praecipe for a writ of summons. See Pa.R.C.P. 1007. An action may be instituted by the filing of a petition and rule to show cause only if it is expressly authorized by statute or rule of court. Petition of Tax Claim Bureau of Westmoreland County, 149 Pa. Cmwlth. 532, 539, 613 A.2d 634, 638 (1992), app. denied, 533 Pa. 615, 618 A.2d 404 (1992); Rusbarsky by Rusbarsky v. Rock, 324 Pa. Super. 28, 31, 471 A.2d 107, 108 (1984). For example, a party may initiate a civil proceeding by the filing of a petition to enforce an order of the Pennsylvania Labor Relations Board pursuant to 42 P.S. § 1101.1501, see Lawrence County v. Com., Pennsylvania Labor Relations Bd., 79 Pa. Cmwlth. 14, 20-21, 469 A.2d 1145, 1147-1148 (1983), a petition to enforce and confirm an arbitration award under 42 Pa.C.S.A. § 7315, see Borough of Dunmore v. Dunmore Police Department, 106 Cmwlth. 461, 464-465, 526 A.2d 1250, 1252-1253 (1987), app. denied, 518 Pa. 614, 540 A.2d 535 (1988), a petition to enforce subpoenas issued by the Pennsylvania Securities Commission under 70 P.S. § l-510(b), see In re American Bank and Trust Company of Pennsylvania, 23 Pa. Cmwlth. 434, 438-439, 332 A.2d 858, 861 (1975), a petition to enforce an arbitration agreement, see Messa v. State Farm Insurance Company, 433 Pa. Super. 594, 596, 641 A.2d 1167, 1168 (1994), a judgment creditor’s petition to enforce a judgment against a school district pursuant to 24 P.S. § 6-611, see Coco Brothers, Inc. v. Board of Public Education of School District of Pittsburgh, 530 Pa. 309, 310-311, 608 A.2d 1035, 1035-1036 (1992), a petition to enforce subpoenas issued by Philadelphia City Council in accordance with Section 8 of the First Class City Code, 53 P.S. § 12528, see City Council of City of Philadelphia v. Greene, 856 A.2d 217, 224-225 (Pa. Cmwlth. 2004), app. denied, 584 Pa. 710, 885 A.2d 43 (2005), and a petition to enforce, in the Commonwealth Court of Pennsylvania, by a governmental unit seeking to enforce an order issued under a statute which it administers. See Pa.R.A.P. 3761(a) (“When a government unit seeks to enforce an order issued under a statute which it administers, it may initiate the proceedings by filing a petition to enforce.”).

However, no statute or rule of court endorses the filing of a “petition to enforce” the OCR’s final determination as a substitute for original process in initiating a civil action in compliance with Pa.R.C.P. 1007. If a party initiates a civil proceeding by the filing of a petition and rule to show cause, but no statute or rule expressly authorizes that use of a petition and rule as original process, the civil action is “improperly commenced” and “the common pleas court ha[s] no power to act and no jurisdiction over” the parties. Flaherty v. Burke, 101 Pa. Cmwlth. 19, 23, 515 A.2d 365, 367 (1986). Accord In re Casale, 512 Pa. 548, 554, 517 A.2d 1260, 1263 (1986) (“Even on the civil side of our courts, an action brought by petition and rule, neither authorized by statute nor auxiliary to jurisdiction already obtained and not designed to correct the court’s own records, is a nullity and confers no jurisdiction on the court.”); In re Correction of Official Records with Civil Action, 44 Pa. Cmwlth. 511, 513-514, 404 A.2d 741, 742-743 (1979) (reversing trial court order directing recorder of deeds to remove oil and gas leases from public records, and holding that lower court lacked jurisdiction and power to act since suit was instituted by petition and rule as original process, even though there was no statutory authorization for such use of a petition and rule).

The more appropriate procedural device for commencing an action to enforce the OOR’s decision and to secure the requested public records would appear to be the filing of a complaint in mandamus pursuant to Pa.R.C.R 1093(1) and 1095 seeking to compel the local agency’s open records officer to produce the relevant records. The writ of mandamus exists to compel official performance of a ministerial act or mandatory duty, as opposed to a discretionary one, and may issue if the petitioner has “a clear legal right, the responding public official has a corresponding duty, and no other adequate and appropriate remedy at law exists.” Fagan v. Smith, 41 A.3d 816, 818 (Pa. 2012). If the OOR has issued a final determination which has not been timely appealed by the local agency under 65 P.S. § 69.1302, the requester would have a clear legal right to the records at issue and the local agency’s open records officer would have a concomitant statutory obligation to produce those materials. The performance of that statutory duty would be mandatory, rather than discretionary. Furthermore, since the RTKL does not expressly provide a successful requestor with a designated means to enforce compliance with an OOR final determination, an available remedy at law does not exist.

In connection with a duly instituted civil action, a requester may possibly seek to obtain records pursuant to an unappealed OOR final determination by requesting a civil contempt order against the non-compliant open records officer who has been designated by the local agency under 65 P.S. § 67.502 to respond to RTKL requests on behalf of the local agency. See 65 P.S. § 67.502. The OOR is an administrative agency, see Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40, 43-44 (Pa. Cmwlth. 2012), and some precedent recognizes that a local agency may be held in civil contempt of an order issued by an administrative agency. See, e.g, Com., Department of Environmental Resources v. Derry Township, 466 Pa. 31, 39, 351 A.2d 606, 610 (1976) (Department of Environmental Resources’ petition seeking to have municipality held in contempt of administrative order under 45 P.S. § 691.210 found to be “proper procedure.”). But see Petition for Enforcement of Subpoenas to John Doe Corporations, 507 Pa. 137, 160, 489 A.2d 182, 194 (1985) (Zappala, J., dissenting) (opining that 42 Pa.C.S.A. § 4132, “Attachment and summary punishment for contempts,” does not grant “the courts of this Commonwealth...the power to impose the punishment of civil contempt for disobedience or neglect of the process of administrative agencies,” absent some statutory authority by the legislature). To secure a finding of civil contempt in order to coerce compliance and, if appropriate, to compensate the complainant for losses sustained, the complainant must establish by a preponderance of the evidence that the contemnor had notice of the order, that its non-compliance was volitional, and that the contemnor acted with wrongful intent. MacDougall v. MacDougall, 49 A.3d 890, 892 (Pa. Super. 2012); In re Contempt of Christopher P. Cullen, 849 A.2d 1207, 1210-1211 (Pa. Super. 2004), app. denied, 582 Pa. 676, 868 A.2d 1208 (2005). It is conceivable that a requester, who is denied access to public documents that the OOR has determined to be discoverable, may also seek to obtain those records by way of a civil contempt petition.

The county has not raised an objection to the propriety of the “petition to enforce” that has been filed by Ledcke. Therefore, it is not necessary to decide whether such a petition is an appropriate form of original process under Pa.R.C.P. 1007 or the RTKL, Of course, the Legislature may resolve this procedural dilemma by amending the RTKL to provide a successful requester with a statutorily authorized means of seeking relief from the Commonwealth Court and the common pleas courts to enforce a final determination of the OOR which has not been timely appealed by the Commonwealth, legislative, judicial or local agency.

Ledcke’s petition seeks to enforce compliance with the OOR’s final determination by compelling the county to produce the materials that the OOR appeals officer found to be accessible. It is undisputed that the county has now produced those records on three separate occasions, and the record does not contain any submission or communication suggesting that Ledcke is dissatisfied with the county’s response. Consequently, Ledcke’s petition to enforce is now moot and will be dismissed on that basis.

Request for Fees and Costs

In his “petition to enforce,” Ledcke also seeks an award of “all costs and fees” in accordance with section 1304 of theRTKL. (Docket Entry No. 1, atpp. 6-8). Section 1304 governs the recovery of “[cjourt costs and attorneys fees” injudicial appeals of OOR determinations, and provides:

(a) Reversal of agency determination. — If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
(b) Sanctions for frivolous requests or appeals. — The court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to an agency or the requester if the court finds that the legal challenge under this chapter was frivolous.
(c) Other sanctions. — Nothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court.

65 P.S. §67.1304.

Section 1304(a) provides two bases for a requester to recover counsel fees and costs. First, the successful requester may recover such fees and costs if the agency denied access to a public record willfully or with wanton disregard, or otherwise acted in bad faith in responding to aRTKLrequest. See 65 P.S. § 67.1304(a)(1). Alternatively, a requester may be awarded counsel fees and costs if the exemption, exclusion or defense asserted by the agency was not based upon a reasonable interpretation of the law. See 65 P.S. § 67.1304(a)(2). By contrast, a prevailing agency may only recover counsel fees and costs under the singular ground set forth in Section 1304(b). Under subsection (b), the prevailing agency, as well as a successful requester, may recover counsel fees and costs if the legal challenge advanced by the unsuccessful litigant was “frivolous.” 65 P.S. §67.1304(b). Thus, Section 1304 provides three grounds for the recovery of counsel fees and costs by a prevailing requester, but only one basis for such an award to an agency which succeeds on appeal. Cf. Scott, 56 A.3d at 47-48.

To receive an award of counsel fees and costs under Section 1304(a), the requester must either establish willful, wanton or bad faith conduct by the agency, or, at a minimum, a legal argument on appeal that was the product of an unreasonable interpretation of the governing law. See Barkeyville Borough v. Sterns, 35 A.3d 91, 98 (Pa. Cmwlth. 2012) (holding that trial court committed reversible error in awarding attorney fees, and finding “[t]here is no evidence in the record that the Borough acted in bad faith or that it unreasonably interpreted the law.”). Counsel fees and costs are recoverable under either of those grounds only if (1) the court reverses the OOR final determination, or (2) the court grants access to records following a deemed denial by the agency, See 65 P.S. § 67.1304(a). The criterion for a counsel fee award set forth in Section 1304(a)(2), i.e., lack of “a reasonable interpretation of law,” appears to be less demanding than the willful, wanton and bad faith standard contained in Section 1304(a)(1). See, e.g., Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 211 (Pa. Super. 2012) (“Wanton misconduct means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.”); In re Estate of Warden, 2 A.3d 565, 574 (Pa. Super. 2010) (“The Pennsylvania Supreme Court has defined bad faith conduct as being motivated by ‘fraud, dishonesty or corruption.’”), app. denied, 610 Pa. 580, 17 A.3d 1255 (2011).

The recovery of counsel fees and costs under Section 1304(b) applies more broadly to any frivolous “legal challenge” by a party, and unlike Section 1304(a), is not confined to agency conduct in connection with an unsuccessful deemed denial or a reversal of the OOR final determination. Moreover, “an RTKL challenge is frivolous under Section 1304(b) if it is arbitraiy, vexatious or the result of bad faith.” Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435, 442 (Pa. Cmwlth. 2011). Reported decisions involving an award of counsel fees and costs under Section 1304 are apparently nonexistent, and two commentators have observed:

As of this writing, the authors are unaware of any unappealed judicial award of attorney fees or civil penalties based on the finding that either an agency acted in bad faith or based its reasons for denying access to records on an unreasonable “interpretation of the law,” although the Commonwealth Court has reversed a Court of Common Pleas of Venango County decision awarding attorney fees based on a lack of evidence “that the Borough acted in bad faith or that it unreasonably interpreted the law.” Similarly, while the RTKL provides that both requesters and agencies may be subject to attorney fees and costs of litigation for pursing frivolous appeals, no court has yet made such a finding.

Byerly & Schnee, supra, at 129 (footnotes omitted).

In Andrew Staub and the Citizens Voice v. City of Wilkes-Barre and LAG Towing, Inc., No. 8294 of 2012 (Luz. Co. Oct. 16, 2012), Judge Lesa S. Gelb awarded counsel fees to a prevailing requester after finding that the City of Wilkes-Barre and its contracted towing company, LAG Towing, Inc., (“LAG”), had engaged in frivolous conduct. On July 22, 2011, a Luzerne County newspaper, The Citizens Voice, and its reporter, Andrew Staub, had requested LAG’S towing records and receipts from the City of Wilkes-Barre, and on August 29, 2011, the City and LAG denied the request on the ground that the records were not “accessible under the Right-to-Know Law.” Id. at p.2. At the time that LAG had affirmatively represented that the towing records were not discoverable under the RTKL, it knew that the requested records had been destroyed and no longer existed. Id. at p. 3. The city solicitor likewise “knew that there was a possibility that there were no records based on his conversations with [LAG] in July 2011,” and was aware that pursuant to Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cm with. 2010), the city could have responded to the RTKL request by submitting an affidavit attesting to the non-existence of the records sought. Id. at pp. 3-4.

Neither the city nor LAG informed the requesters that the records did not exist, and as a consequence, the requesters filed an appeal to the OOR. Id. at p.2. On January 27, 2012, the OOR determined that “providing towing services relating to the city’s enforcement of its ordinances, laws or other lawful directives is the performance of a governmental function,” under 65 P.S. § 67.506(d)(1), see SWB Yankees, LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012), such that LAG’S towing records were subject to disclosure under the RTKL. Id. at p.2. After the requesters had secured the favorable determination by the OOR, the city and LAG informed the requesters that the records sought did not exist. Id. at pp. 2-3.

In granting the requesters’ motion for counsel fees under Section 1304(b) of the RTKL, Judge Gelb reasoned:

This court finds that LAG Towing engaged in willful and wanton misconduct when it litigated a matter frivolously. Specifically, the defendant, LAG Towing, Inc., argued that the information contained in its records was confidential, proprietary information when, according to LAG itself, those records did not exist at the time the statement was made. It is beyond comprehension that it was purported that the towing records had confidential, proprietary information contained within them when counsel for LAG never reviewed such documents because [LAG] admitted that no such documents existed. Therefore, no such documents could have ever been reviewed and these non-existent records could not contain confidential or proprietary information. The appeal by LAG Towing to the RTKL request was frivolous when all that was necessary was an affidavit indicating that there were no responsive records.
Additionally, the city of Wilkes-Barre responded to the RTKL request that it did not possess any responsive records. But what the city did not do is indicate that LAG did not have any responsive records when it knew early on that LAG did not have the records, or as [the city solicitor] indicated “he knew it was a possibility that LAG Towing, Inc., had no responsive records to the request fairly early on in this matter.” [citation omitted]. To know for sure, all [the city solicitor] had to do was ask [LAG] at that time whether [LAG] in fact had the responsive records. Wilkes-Barre let LAG take the lead in the RTKL litigation, having a good idea that LAG had no records and failed to ensure that either LAG provided an affidavit of no records or notified the citizens voice or OOR mediator that LAG did not have any records which the Citizens Voice was requesting.

Id. at pp. 4-5. Based upon the foregoing findings, the Luzerne County court directed LAG to pay 90 percent of the requester’s counsel fees, with the remaining 10 percent to be paid by the city. Id. at p. 6. The city and LAG have appealed that counsel fee ruling to the Commonwealth Court of Pennsylvania. See Staub v. City of Wilkes-Barre. No. 2140 CD 2012 (Pa. Cmwlth. 2012).

During the hearing on January 31, 2013, counsel for the county represented that the failure to timely furnish the pertinent items to Ledcke was the result of inadvertent oversight rather than deliberate obstruction. In the early summer of 2012, the county was undergoing a transition in its open records officer position, and the new open records officer mistakenly believed that the responsive records were being produced and delivered by the county prison instead of the county administration. Once the county was served with Ledcke’s petition to enforce, it promptly provided the responsive materials to Ledcke by forwarding them to the federal penitentiaries in Alabama and Colorado and to his relative in Ohio. The record does not contain any evidence indicating bad faith, willful or wanton conduct, or frivolous legal argument on the part of the county. More importantly, Ledcke has not incurred any counsel fees or litigation costs since he has proceeded pro se and payment of the filing fee was waived by the clerk of judicial records due to his in forma pauperis status. (Docket Entry No. 1). Accordingly, based upon the foregoing, his request for an award of “all costs and fees” will be denied.

And now, February 7, 2013, upon consideration of the “Petition to Enforce Final Determination of Office of Open Records Pursuant to Section 1302 of the Pennsylvania Right-To-Know Law” filed by Petitioner, Shawn Michael Ledcke, the response of the County of Lackawanna, and the evidence introduced during the hearing on January 31, 2013, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The “Petition to Enforce” the final determination issued by the Office of Open Records on June 6, 2012, is dismissed as moot; and

2. The petitioner’s request for an award of “all costs and fees” pursuant to 65 P.S. § 67.1304 is denied.

      . Ledcke was indicted for various firearms offenses in the United States District Court for the Northern District of Illinois after “Ledcke purchased approximately 43 firearms in Ohio and sold them in Chicago to reputed members of street gangs and the Mexican mafia.” U.S. v. Ledcke, 231 Fed. Appx. 507, 508, (7th Cir. 2007). cert. denied, 553 U.S. 1006 (2008). Ledcke pled guilty to the firearms charges, and the federal district court sentenced him to ten years imprisonment after imposing enhancements to Ledcke’s base offense level score under the sentencing guidelines due to his 2000 conviction for reckless homicide and 1996 conviction for aggravated battery. Id. at 508-509. Ledcke appealed his sentence, but the United States Court of Appeals for the Seventh Circuit affirmed Ledcke’s sentence on July 23, 2007. Id. at 512. There is no indication in either the administrative record of the OOR or the court file maintained by the Clerk of Judicial Records regarding the circumstances that led to Ledcke’s incarceration at the Lackawanna County Prison in the summer of 2010 while he was still serving his federal sentence.

      . On December 12, 2011, Ledcke filed a pro se lawsuit against the Pennsylvania Department of Corrections, the Lackawanna County Sheriff, the Lackawanna County Prison, and the Prison Warden, Robert McMillian, in the United States District Court for the Middle District of Pennsylvania seeking “wide ranging materials, including audio and videotapes, as well as production of documents,” pursuant to the RTKL and the federal Freedom oflnformation and Privacy Acts, 5 U.S.C. §§551-552a. Ledcke v. Pennsylvania Dept. of Corrections, 2012 WL 716052, at *1 (M.D. Pa. 2012). On February 3, 2012, U.S. Magistrate Judge Martin C. Carlson issued a Report and Recommendation concluding that Ledcke’s action should be dismissed, without further leave to amend his complaint, since: (1) the Freedom oflnformation and Privacy Acts “only applied to federal agencies and offices;” (2) the appropriate remedy for denial of a RTKL “request is to appeal that denial in state court;” (3) the Eleventh Amendment to the U.S. Constitution “precludes persons from pursing claims against state agencies and officials under Pennsylvania’s Right-To-Know Law;” and (4) diversity of citizenship jurisdiction did not exist under 28 U.S.C. § 1332(a)(1) in that the amount in controversy did not exceed $75,000.00. Id. at * 4-5. On March 5,2012, U.S. District Judge John E. Jones III adopted the Report and Recommendation dated February 3, 2012, and dismissed Ledcke’s suit. See Ledcke v. Pennsylvania Dept. of Corrections. 2012 WL 718591, at * 2 (M.D. Pa. 2012). Thirty five days later, Ledcke submitted his RTKL request to the County.

      . Section 102 oftheRTKL defines a “[pjublicrecord” as “[a] record, including a financial record, of a...local agency that: (1) is not exempt under [65 RS. § 67.708]; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.” 65 RS. § 67.102. HIPAA regulates the conduct of third parties who have access to protected medical information, Pik v. University of Pennsylvania, 2010 WL 3933275, at * 4 (E.D. Pa. 2010), and “defines certain patient rights such as the patient’s right to access his/her medical record information.” Jones v. Shelby County Government Civil Service Merit Bd., 2012 WL 5503859, at * 1 n. 1 (Tenn. Ct. App. 2012). HIPAA empowers the Secretary of the U.S. Department of Health and Human Services to promulgate regulations to implement uniform national standards for the protection and disclosure of health information. See Citizens for Health v. Leavitt, 428 F.3d 167, 172 (3d Cir. 2005). Those regulations recognize an individual’s right of access to his or her own medical records. See 42 C.F.R. § 482.13(d) (2) (“The patient has the right to access information contained in his or her clinical records within a reasonable time frame.”); 45 C.F.R. § 164.524(a)(1) (stating that, as a general rule, “an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set....”). “The obvious thrust of the regulations is to deny inappropriate access to a patient’s records by third parties, not to deny a patient access to his or her own records.” Merryfield v. Kansas Social and Rehabilitation Services, 44 Kan. App. 2d 324, 332, 236 P.3d 528, 534 (2010) (citing 42 C.F.R. § 482.13(d)(2)).
      The OOR quoted 45 C.F.R. § 164.502(a) in support of its conclusion that Ledcke’s medical records were exempt from disclosure. Although that regulation generally states that “[a] covered entity may not use or disclose protected health information, except as permitted or required by this subpart,” it also identifies “[permitted uses and disclosures” and provides that “[a] covered entity is permitted to use or disclose protected health information..,[t]o the individual.” 45 C.F.R. §164.502(a)(l)(i). A possible basis for denying Ledcke access to his own medical records can be found in a separate regulation which states that “[a] covered entity that is a correctional institution or a covered health care provider acting under the direction of the correctional institution may deny, in whole or in part, an inmate’s request to obtain a copy of protected health information if obtaining such copy would jeopardize the health, safety, security, custody or rehabilitation of the individual or of other inmates, or the safety of any officer, employee, or other person at the correctional institution or responsible for the transporting of the inmate.” 45 C.F.R. § 164.524(a)(2)(h).
      The state MHPA and the accompanying regulations adopted by the Department of Public Welfare also provide that “the patient controls the release of information contained in his or her [mental health] records and is entitled to access those records.” Christy v. Wordsworth-at-Shawnee,
        749 A.2d 557, 558 (Pa. Cmwlth. 2000) (citing 55 Pa. Code § 5100.31(f)). See also 55 Pa. Code § 5100.33(d). Therefore, although the MHPA and the foregoing regulations operate to deny third parties access to Ledcke’s mental health treatment records, they do not serve as grounds for denying Ledcke access to his own mental health records.

      . A petition to enforce may also be filed in a pending suit that has been commenced by the filing of a complaint or writ of summons as original process. See, e.g., Salsman v. Brown, 51 A.3d 892, 893 (Pa. Super. 2012) (petition to enforce settlement agreement in breach of contract action); Annechino v. Joire, 946 A.2d 121, 124-125 (Pa. Super. 2008) (petitionto enforce marriage settlement agreement under 23 Pa.C.S.A. § 3105).

      . Other inmates have sought to enforce an OOR final determination by filing a “petition to enforce” as initial process. See Byerly & Schnee, What Every Lawyers Needs to Know About the Right-To-Know Law, 83 Pa. B.A.Q. 116, 127 n. 120 (July 2012) (citing Thomas v. Wolgemuth and Lebanon County Right To Know Office, No. 2012 00063 (Leb. Co. April 10, 2012) (granting pro se prisoner’s petition to enforce OOR’s final determination)). The filings in Thomas reflect that the inmate petitioner submitted a proposed “Order to Enforce Final Determination of PA Office of Open Records,” which the trial judge signed on April 10, 2012, after Lebanon County and its Open Records Officer failed to answer the rule to show cause by the rule returnable date of January 25, 2012. (See “Motion to Move the Court to Enter Order to Enforce Final Determination of PA Office of Open Records,” at ¶5 in Thomas, supra.). Additionally, an enforcement action was instituted in the Court of Common Pleas of Lackawanna County by the filing of a “Petition to Enforce Final Determination of Office of Open Records” and the issuance of a Rule to Show Cause in Rogan v. County of Lackawanna and Correctional Care, Inc., No. 09 CV 6858 (Lacka. Co. Oct. 13, 2009). However, prior to the scheduled rule to show cause hearing, the parties agreed to stay that enforcement action pending the outcome of a prior suit, Lackawanna County v. Correctional Care, Inc., No. 09 CV 6194 (Lacka. Co.). See Rogan v. County of Lackawanna and Correctional Care, Inc., No. 09 CV 6858, Minora, J. (Lacka. Co. Nov. 2, 2009) (approving joint motion to stay proceedings). Thus, the propriety of initiating a civil action by the filing of a “Petition to Enforce Final Determination of Office of Open Records” was never addressed in Rogan, nor do the limited filings in that case suggest that an issue was ever raised regarding the filing of a civil action via a “petition to enforce.”

      . There is decisional authority under the former Right to Know Act stating that mandamus is not a proper remedy for a requestor who has been denied access to local agency records, but who has not sought recourse under the appeal procedure set forth in that Act. Under Section 4 of the old Right-to-Know Act, Act of June 21, 1957, RL. 390, § 4, 65 P.S. § 66.4 {repealed), any citizen who was denied access to public records of a local agency could appeal that denial to the common pleas court, and “[i]f such court determine[d] that such denial was not for just and proper cause under the terms of [the former] act, it may enter such order for disclosure as it may deem proper.” See Weaver v. Department

        of Corrections, 702 A.2d 370, 371 n. 1 (Pa. Cmwlth. 1997), app. denied, 553 Pa. 685, 717 A.2d 536 (1998). In 2002, Section 4 of the prior Act was amended to eliminate the “just and proper cause” standard. See Van Osdol v. Com., Department of Transportation, 909 A.2d 428, 430 n. 3 (Pa. Cmwlth. 2006). The former Right to Know Act, 65 P.S. §§ 66.1-66.4, was repealed and replaced by the current RTKL, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104. See Johnson v. Pennsylvania Convention Center Authority, 49 A.3d 920, 921 n.1 (Pa. Cmwlth. 2012). The present RTKL affords an aggrieved requester an initial administrative appeal to the OOR, see 65 P.S. §§ 67.1101-67.1102, as well as a right of judicial review by appealing the OOR determination to the Commonwealth Court or the common pleas court, see 65 P.S. §§ 67.1301-67.1305. See also Bowling v. Office of Open Records, 990 A.2d 813, 821-823 (Pa. Cmwlth. 2010), app. granted in part, 609 Pa. 265, 15 A.3d 427 (2011).
      In Wiley v. Woods, 393 Pa. 341, 141 A.2d 844 (1958), a citizen who was denied the opportunity to examine field investigation notes of the city planning commission instituted a mandamus action against the director of the planning commission, rather than appealing the local agency’s denial under Section 4 of the old Right-to-Know Act, 65 P.S. § 66.4 {repealed). The lower court granted the mandamus request and directed the planning commission to permit the requester to examine the planning commission’s field investigation notes. Id. at 345, 141 A.2d at 846-847. The Supreme Court of Pennsylvania reversed and held that the citizen did not have “the right of examination and inspection of appellant’s ‘field investigation notes’ which are clearly not public records.” Id. at 353, 141 A.2d at 850-851. In a footnote, the Supreme Court noted that the citizen’s “resort to mandamus as a remedy was improper” since “Section 4 of the statute provides the exclusive remedy to a person denied the right of examination and inspection of public records.” Id. at 350 n. 9, 141 A.2d at 849 n.9. Accord, Starobin v. Department of Revenue, 53 Pa. Cmwlth. 543, 545-546, 418 A.2d 800, 802 (1980) (stating that the requesters “... are confronted with a formidable procedural problem resting in the fact that the Supreme Court has declared that resort to mandamus as a means of obtaining access to public records is improper based on Section 4 of the Right-to-Know Act, Act of June 21, 1957, P.L. 390, as amended, 65 P.S. § 66.4, providing for appeals to courts from the denial of a request for access to public records.”), app. quashed, 494 Pa. 103, 429 A.2d 1112 (1981). In contrast to the requesters in Wiley and Starobin, Ledcke did avail himself of the appeal remedy set forth in the RTKL, but at the time that he commenced this civil action, had not received the records that the OOR had determined were subject to disclosure. Hence, the prospective use of a mandamus action by a prevailing requester seeking production of public records found to be accessible by the OOR, would appeal to be distinguishable from Wiley and Starobin where the requesters did not exhaust their available statutory remedies.


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    Bank of N.Y. Mellon v. Bohizic

      C.P. of Lawrence County,
    No. 10025-C.A.-2011.

      Scott A. Dietterick and Kimberly A. Bonner, for plaintiff.

      Barb Bohizic, pro se, for defendant.
    February 11, 2013
   HODGE, J.,

Before the court for disposition is plaintiff’s motion for summary judgment. The current action arose out of a note executed on January 4, 2005 by Defendant, Barb Bohizic (hereinafter “defendant”) in consideration of a loan equaling $76,000.00 made by Wells Fargo Bank, NA. The loan was provided to defendant after defendant and Mary R. Bohizic secured the same with a mortgage on their residence located at 47 Portersville Road, Ellwood City, Pennsylvania 16117 (hereinafter, the “Residence”). The mortgage was recorded on January 26, 2005 in the Office of the Recorder of Deeds of Lawrence County at Book Volume No. 2006 Page No. 759. Mary R. Bohizic died on April 16, 2006, and the defendant is now the sole record owner of the Residence. The Bank of New York Mellon (hereinafter “plaintiff’) ultimately acquired its interest in the mortgage by assignment from Wells Fargo Bank, NA dated June 30, 2009 and recorded on July 21, 2009.

On June 23, 2009, plaintiff initiated a complaint in Mortgage Foreclosure at Case No. 11008 of 2009, C.A. Defendant filed preliminary objections to the complaint on July 14, 2009. Plaintiff responded by withdrawing the complaint without prejudice on July 27,2009. On January 6,2011 plaintiff reinitiated the foreclosure action by filing an amended complaint in mortgage foreclosure at the above captioned case. On April 28, 2011, defendant again filed preliminary objections. Following argument on the same, this court granted defendants’preliminary objections for failure to include proper verification pursuant to the Pennsylvania Rules of Civil Procedure, Rule 1024(c), and the plaintiff was permitted leave to file a second amended complaint.

On October 14, 2011, plaintiff filed a second amended complaint in mortgage foreclosure, alleging the mortgage has been in default due to defendant’s failure to make payments as provided under the terms of the mortgage agreement. Plaintiff demands judgment for the amount due plus interest, costs, and attorney fees. Defendant filed an answer and new matter on November 14, 2011. In her answer, defendant provided an admission to all material facts set forth in plaintiff’s second amended complaint. In her new matter, however, defendant asserted that plaintiff failed to consider defendant for a mortgage modification, and that plaintiff initiated the within action while defendant has a pending application for a Making Home Affordable Program (hereinafter, “HAMP”) loan. Plaintiff responded to defendant’s new matter by asserting that defendant’s HAMP loan was denied on November 26, 2010, and that defendant has not provided plaintiff with any additional requests to mitigation on the mortgage.

On April 30, 2012, plaintiff filed the instant motion for summary judgment as well as affidavit from an employee of wells Fargo Bank, N.A., as servicing agent for the plaintiff. On June 8, 2012 this court issued an order indicating that plaintiff’s motion for summary judgment would be decided on briefs without oral argument. Defendant’s brief was filed on April 30, 2012. Plaintiff filed a brief on September 17,2012 after having two extensions to file the same. The matter is now ripe for disposition.

Initially, the court will address the issue raised in defendant’s new matter, wherein defendant asserted that plaintiff initiated the within action while defendant has a pending application for a HAMP loan. Defendant’s assertion, as set forth in her new matter, is not a valid defense to the present foreclosure action. Foreclosure proceedings are in rem, and any defense must, therefore, go to the existence and validity of the mortgage. First Federal Savings & Loan Association of Erie v. McAfee, 15 Pa. D. & C.3d 287 (Pa. Comm. Pleas, Erie Cty 1980). Defendant’s new matter fails to challenge the existence and validity of the mortgage itself, and cannot be considered a genuine issue of fact.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The rule states:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

In an action for mortgage foreclosure, the entry of summary judgment is proper if the mortgagor admits default, the failure to pay interest on the obligation and the recorded mortgage is in the specified amount. Even if the mortgagor has not admitted the total amount of the indebtedness in the pleadings, summary judgment is proper if the elements previously stated are present. Landau v. Western Penn. Nat’l Bank, 282 A.2d 335 (Pa. 1971).

A party seeking to avoid the entry of summary judgment must show by depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for the trier of fact. Washington Federal Savings and Loan Assoc. v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986). In determining whether summary judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party.” P.J.S. v. Pennsylvania State Ethics Comm’n, 732 A.2d 174 (Pa. 1999) (citing Kapres v. Heller, 640 A.2d 888 (Pa. 1994)). Summary judgment is proper only when the uncontroverted allegations of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Potter v. Herman, 762 A.2d 1116, 1117 (Pa. Super. 2000).

Defendant has admitted that the mortgage is in default. She states in her Answer that she “admits that she has failed to pay monthly installments of principal and interest when due.” Def’s Answer, p. 2, paragraph 9. Furthermore, plaintiff’s supporting affidavit indicates that plaintiff has failed to make a mortgage payment since January 1, 2010. Plaintiff’s motion for summary judgment, Ex. A. Defendant does not dispute this allegation, and the court concludes that defendant admits she is in default.

Furthermore, defendant states in her answer that she is without knowledge to form a belief as to the accuracy of the amount plaintiff claims is due. In a mortgage foreclosure action, the mortgagor and mortgagee are the only parties with sufficient knowledge to base a specific denial. New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987). “[Gjeneral denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts.” First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. 1995). Therefore, the court finds defendant’s general denial of the specific amount claimed by plaintiff to be an admission. The defendant admits all other allegations set forth in plaintiff’s complaint, and the court must therefore conclude that defendant fails to raise any genuine issue of material fact. Plaintiff is entitled to judgment as a matter of law. Plaintiff’s motion for summary judgment is granted.

ORDER OF COURT

And now, February 11, 2013, the court having received plaintiff’s motion for summary judgment and briefs filed on behalf of the respective parties, with Scott A. Dietterick, Esquire, representing the plaintiff, the Bank of New York Mellon, and with the defendant, Barb Bohizic, proceeding Pro Se, it is hereby ordered and decrees as follows:

1. Plaintiff’s motion for summary judgment is granted pursuant to the attached opinion.

2. Judgment in mortgage foreclosure is entered in favor of plaintiff and against defendant, Barbara Bohizic in the amount of $85,008.99 plus interest, additional late charges, up to the date of filing, attorneys’ fees and costs for foreclosure and sale of the mortgaged premises commonly known as 47 Portersville Road, Ellwood City, Pennsylvania 16117.

3. The Prothonotary shall properly serve notice of this order and opinion upon counsel of record and upon any unrepresented party at their last known address as contained in the court’s file.


author: MELLON, J.,

text:
    In re Appeal of Council Rock School District v. Bucks County Board of Assessment

      C.P. of Bucks County,
    No. 2007-09906-26-6.

      Robert M. Cox, for plaintiff.

      Edward Rudolph, Mark S. Cappuccio and Anthony R. Thompson, for defendant.
    February 11, 2013
   MELLON, J.,

Appellant, Council Rock School District (“Council Rock”) instituted this appeal on May 4, 2007, by filing a petition to challenge the 2008 through 2013 assessment values for Tax Parcel Number 29-010-075-004, a commercial property (“Property”) located at 100 Campus Drive in Newtown Township, Bucks County, Pennsylvania, owned by Appellee-Intervenor LMC Properties, Inc. (“Lockheed”). On November 9, 2007, the board of assessment appeals of Bucks County, Pennsylvania, denied Council Rock’s petition and reaffirmed the assessed value of the property in the amount of $4,020,000 for tax years 2008,2009, and 2010; and $4,355,840 for tax years 2011,2012, and2013. On November 28, 2007, Council Rock filed a notice of appeal by right to this court, pursuant to the Pennsylvania Consolidated County Assessment Law, 53 P.S. § 8854(a) (1). A non-jury trial commenced with a property view by the court on December 10,2012. For the reasons discussed below, the court reverses the decision of the Bucks County Board of Assessment Appeals, and finds as follows:

1. The assessed value for 2008 is $5,862,948.
2. The assessed value for 2009 is $6,297,060.
3. The assessed value for 2010 is $5,724,261.
4. The assessed value for 2011 is $8,009,320.
5. The assessed value for 2012 is $8,303,240.
6. The assessed value for 2013 is $7,935,840.

FACTUAL AND PROCEDURAL BACKGROUND

The subject property is a 52.25-acre office, research and industrial center for Lockheed’s Commercial Space Systems Division. It is located in southeastern Bucks County, immediately adjacent to the Interstate-95 transit corridor. This appeal concerns tax years 2008 through 2013, thus the initial fair market valuation was developed in 2007.

As of August 1, 2007, the property included two buildings and significant open space, including wetlands area. The first building, Building No. 350, also known as the “Project Support Building/PSB” and hereinafter “the office building,” was constructed in 1974 and encompassed approximately 69,500 square feet in 2007, including the 1997 addition of a large cafeteria space. The office building is a cantilevered concrete and steel beam box shape with executive offices on the lower floors and predominately flexible and cubicle-style office space throughout. The parties agree that the majority of this building is categorized as “Class B” office space, meaning it is not a brand new, state of the art facility, but still well-maintained and attractive to potential buyers. The parties agree the building is in “good” physical condition.

The second building, Building No. 351, also known as the “Project Team Building/PTB” and hereinafter “the R & D Building,” was constructed in 1997, and in 2007 encompassed approximately 355,127 square feet of office, laboratory and manufacturing space. Approximately 53% of the space is allocated to offices, less than 5% is laboratory space, and the remainder is manufacturing space or “high bay” loading areas. Structurally, the R & D Building has a steel frame exterior with a total building height of 55 feet measured to the underside of the roof deck. The office space in the R & D Building is similar to the office building, predominately flexible and cubicle space with private offices along the exterior walls.

The R & D Building also includes laboratory and production space with clean rooms. Lockheed conducts acoustical and seismic testing in the manufacturing space of this building, related to the company’s commercial space program. The parties agree that this building is in “excellent” or “very good” physical condition.

A third building, the “Patriot Center,” was constructed in 2010 to serve as conference, meeting and display space for the complex. The Patriot Center was first included in the tax year 2011 Property valuation. The parties agree that this building is in “excellent” condition.

In this appeal, Council Rock argues that the values found by the Bucks County Board of Assessment Appeals do not reflect the full fair market value of the Property and the buildings therein. Council Rock claims the accurate fair market value of the property is nearly double the fair market value found by the Bucks County Board of Assessment Appeals. Council Rock argues that the fair market value should be based on the mix of a cost valuation and a sales comparison valuation, which Council Rock terms a “reconciled value.”

As required by the consolidated county assessment law, the court must apply the common level ratio for each year to the fair market value for each year in order to arrive at the assessed value. In this case, the parties have stipulated to the common level ratios.

The court finds that the property has been undervalued by the Bucks County Board of Assessment Appeals. The court makes the following findings of fact regarding the credibility of the expert witnesses:

1. The testimony of real estate appraiser Maureen Mastroieni (“Mastroieni”) that the cost valuation method is the appropriate method to calculate the fair market value of the Property is credible.
2. The calculation of Mastroieni that the fair market value for the property in initial tax year 2008 is $72,800,000, applying the cost method, is credible.
3. The testimony of real estate appraiser Steven Bott (“Bott”) that the sales comparison method of valuation is appropriate to calculate the fair market value of the property is not credible.
4. The comparable properties Bott selected for his sales comparison calculations are not sufficiently similar to the subject property to form a credible sales comparison valuation.
5. The testimony explaining Mastroieni’s reasoning for excluding functional and external obsolescence from her cost valuation calculations of fair market value is not credible.
6. The testimony of Bott that functional obsolescence and external obsolescence are appropriate factors in determining the property’s fair market value is credible.
7. The calculations of Bott that functional obsolescence ranged from 15% to 20%, and that external obsolescence depressed the value of the property 5% from in tax years 2009 and 2009, and another 5% in tax year 2010, are credible.
8. The testimony of real estate appraisers Michael Samuels and Paul Griffith was superfluous to this matter.

Therefore, the court’s determination reflects a fair market value based on cost method calculations offered by Mastroieni, less the deductions for functional and external obsolescence offered by Bott. The court finds the fair market values for the tax years under appeal are as follows:

1. Tax year 2008: $64,428,000.
2. Tax year 2009: $66,990,000.
3. Tax year 2010: $59,013,000.
4. Tax year 2011: $73,480,000.
5. Tax year 2012: $73,480,000.
6. Tax year 2013: $73,480,000.

DISCUSSION

In this appeal the court must determine the assessed value of the property for each year under appeal, based on the fair market value multiplied by the common level ratio. The fair market value is: “the price which a purchaser, willing but not obliged to buy, would pay an owner, willing but not obliged to sell, taking into consideration all uses to which the property is adapted and might in reason be applied.” In other words, the fair market value attempts to capture what the property would sell for on the date of the valuation, considering land, buildings and improvements.

The court’s fair market value determination must be based on the weight and credibility of the evidence offered by each party’s appraiser. The court must determine which method of property valuation it finds most credible: the cost approach, the sales comparison approach, or the income approach, The court is not required to credit one expert completely to the exclusion of the other expert. If both experts are equally credible, the court may find the fair market value lies between the values presented by each party. The court may only consider the value of the land and buildings, not the machinery or equipment that is specific to the industry of the property owner.

Procedurally, the initial burden falls on the county board of tax assessment to present a prima facie case that the tax is reasonable based on the tax card. Here, the parties stipulated that the burden was satisfied. The burden then shifts to Council Rock to present credible, relevant evidence from a qualified expert as to Council Rock’s proposed valuation. Then, Lockheed has an opportunity to rebut Council Rock’s evidence.

I. THE COURT CREDITED COUNCIL ROCK’S TESTIMONY REGARDING THE COST VALUATION METHOD BECAUSE IT ACCURATELY CAPTURES THE MIXED-USE NATURE OF THE PROPERTY.

Council Rock urged the court to credit testimony based on the cost valuation method. Lockheed urged the court to credit testimony based on the sales comparison approach. Neither party asked the court to consider the third approach identified in the statute, the income method, because all parties agree income calculation is only an appropriate valuation for income-producing or investment properties, and the subject property is owner-occupied.

Based on the testimony presented, the appraisal reports submitted and the property view conducted, the court finds the cost method to be the most credible valuation of the property. The cost method is deemed credible and controlling because it most accurately captures the mixed-use aspects of this property, and best represents what value the property would sell for on the open market.

In addition to the cost and sales approaches, Council Rock’s expert Mastroieni offered a third set of values for the property, which she developed by “reconciling” the cost approach values and her own sales approach values. Because this “reconciled value” is not a standard industry approach, and because it is based on Mastroieni’s personal judgment rather than a calculation of accepted values, the court does not find the reconciled values credible.

A. Council Rock’s Cost Valuation Method of Segmenting Building Types Is Permitted Under Pennsylvania Law.

The cost approach to valuation is defined by Pennsylvania statute as the “reproduction or replacement” cost of the property, “less depreciation and all forms of obsolescence.” The reproduction cost estimates the price to create an exact replica of the existing structures; the replacement cost estimates the price to recreate the buildings based on the generalized type of buildings and materials/finishes within. Again, Pennsylvania law does not permit the court to consider the machinery and equipment that are specific to the property owners.

Additionally, an appraiser developing a cost valuation may not consider any feature unique to the current user, whether an appliance or a modification of the building itself. This improper approach is termed “value-in-use,” and it is prohibited because it considers the value of the property as the current owner is using it, rather than the value of the property as viewed by a potential purchaser.

Lockheed objects to Council Rock’s separate value calculations for the office, laboratory and research space, arguing that such compartmentalization runs afoul of a rule against subdivision articulated in Air Products & Chemicals, Inc. v. Board of Assessment and Craftmaster Manufacturing Inc. v. Board of Assessment. In Air Products and Craftmaster, the Commonwealth Court disallowed a valuation which treated a property as if it were legally subdivided into two parcels, separately owned, which together would be worth more than an undivided tract.

An appraiser is permitted to value a property as it currently exists or in a reasonably foreseeable configuration (i.e., to value a shopping center as if the individual stores were leased to commercial tenants), but may not appraise a property speculatively, as if it were already rezoned and built upon. The Air Products and Craftmaster cases are inapplicable to this matter, because neither Lockheed nor Council Rock presented testimony about a speculative future configuration of the property. Mastroieni’s calculations comport with both the letter and the spirit of the Air Products and Craftmaster rule because she included only the existing property structures, not potential structures.

Calculating different values-per-square-foot for the office, laboratoiy and manufacturing areas logically captures the varying expense to create these spaces, which was established by testimony referencing real estate standards. Here, the parties stipulated to the authority of the learned treatise the appraisal of real estate, 13th Edition. Mastroieni then testified that the treatise requires an appraiser to estimate the contributory value of each type of use in a property where the highest and best use is a mixed use of building types. Here, the parties agree that the current configuration of the property is the highest and best use, as a single parcel of mixed office, research and laboratory space.

There has been no speculative testimony about future subdivision or buildings. While Lockheed, unlike Council Rock, considered the value of the company’s permit to expand the existing buildings, this inclusion is allowable because the permit itself is an existing asset of the property. It is then within the court’s discretion to credit the testimony about the potential value a buyer would place on the expansion permit.

B. Council Rock’s Cost Valuation Calculations Appropriately Applied the Cost Methodology.

The court finds that Council Rock’s cost calculations were credible, appropriately tailored to the multiple building types on the Property and, accurately reflect the Property’s value to a potential buyer.

To derive a fair market valuation of the property under the cost method, Mastroieni first calculated the value of the land based on Bucks County real estate data, and set it aside from the replacement calculations under the cost method valuation. The value of the land was $100,000 per acre, for a total value of $5,225,000.

Under the replacement subtype of the cost valuation method, Mastroieni next calculated the approximate value per square foot of each building. Mastroieni calculated that the value of the office building was $175.59 per square foot. This price was based on guidelines from the Marshall & Swift cost valuation service. The office building, inclusive of office, atrium and laboratory space in 2007, totaled 69,500 square feet, for a subtotal building value of $12,203,500.

The approximate value of the R & D Building was $233.28 per square foot, including 355,127 square feet of office, clean room laboratories, manufacturing and high bay space. Mastroieni testified that she arrived at the R & D Building value per square foot calculations by adjusting between the two closest Marshall Swift equivalent building types, Class-S and Class-C, and applying that calculation to the building sub-types of office, laboratory and manufacturing space. She also made upward adjustments for higher-quality HVAC systems and higher-quality finishes in the lab rooms. Clean room space was assigned a higher value per square foot due to the special finishes on the flooring, walls and ceiling, as well as special ventilation adaptions in the air handling system. The R & D Building subtotal value for tax year 2008 was $79,294,300. Mastroieni based subsequent tax year values on the above calculations, adjusted accordingly for the changing price of labor and materials.

The court finds Mastroieni’s upward value adjustments for finish and upgrades in the R & D Building to be credible because the adjustments reflect the superior conditions observed during the property view. The adjustments are based upon values established by the Marshall Swift valuation service. The court also finds credible Mastroieni’s assertion that the condition of the office space in the R & D Building is “excellent” due to renovation and continual building improvements. By contrast, the court does not find credible Bott’s assertion that the building should be categorized as “good,” the category below “excellent.”

Mastroieni’s cost calculations appropriately disregarded the value of acoustic rooms, “vibration” floor slabs, special piping and heavy-duty chiller equipment, because those building modifications are excluded under the “value-in-use” rule.

After valuing the buildings, Mastroieni also assigned a value of $3,645,000, to site improvements, inclusive of parking lots, driveways, landscaping and other external features of the property. The sum of the building subtotals, together with the land value and site improvements, is $95,142,800.

Finally, Mastroieni decreased the property subtotal by the amount of depreciation, as required by the consolidated county assessment law. Mastroieni testified that the depreciation value for the 30-year-old office building was 66.7%, and the depreciation value for the 10-year-old R & D Building was 22%. No further reductions were made for functional obsolescence or external obsolescence. Thus, the final fair market value under Council Rock’s cost valuation analysis for the initial tax year, 2008, was $72,800,000.

For the following tax year, 2009, Mastroieni’s estimated value increased to 77,000,000. The increase was largely attributable to the rising costs of construction. In tax year 2010, the total estimated value fell to $71,100,000. This was due to the falling cost of construction, which was affected by a weak economy and less construction activity overall.

In tax year 2011, the value increased substantially to $83,500,000 due to the addition of the Patriot Center and an addition to the manufacturing space in the R & D Building. A significant portion of the increase was due to the higher cost of construction on the manufacturing facility.

The court found credible all of Mastroieni’s above testimony regarding the cost valuation method. The court also found credible Mastroieni’s testimony that the value of the permit to expand the facility is negligible to a potential buyer, given the local economy, the low demand for office space in the area, and the 16% commercial vacancy rate in Bucks County.

C. Lockheed’s Sales Comparison Testimony Was Not Credible Due to the Dissimilarities Between the Comparables and the Subject Property.

The court did not find credible the testimony regarding the sales comparison approach because the properties selected by Lockheed’s expert appraiser William Bott (“Bott”) were not sufficiently similar to the subject property to provide a fair market value. Although the sales comparison approach is a permissible method of deriving fair market value, in this case, the eight allegedly comparable properties were dissimilar in geography, financial situation, and the mix of building types on the property.

In order to find property sales “similar” to the subject property, Bott’s review stretched from the Canada border south to the Mason-Dixon line, and eastward from the Mississippi River to the Atlantic Ocean. This area encompasses real estate markets vastly different from Bucks County, Pennsylvania, making it difficult if not impossible to compare values.

Even within this substantial area, however, the properties Bott selected were not similar to the subject property in building height, facility type, or financial situation at the time of sale. In order to compensate for the dissimilarity, Bott had to make gross accuracy adjustments ranging from 27.5% to 140%; half of the adjustments were 100% or greater. Much of the adjustment was attributable to the differing mix of building types. Some of the properties did not have one of the three facility types on the subject property, and most had an abundance of lower-cost warehouse or production space. Four of the eight sales offered were distressed sales, sale-leaseback agreements, or both, which are not comparable to an owner-occupied property. In one instance, Bott made a downward adjustment to the price for a leaseback agreement. In another instance, Bott did not make a downward adjustment to the price for a leaseback agreement, demonstrating an inconsistent and unreliable approach to valuation.

Because the underlying data supporting the sales comparison approach is not reliable and not comparable to the subject property, this court does not find the sales comparison testimony credible.

II. THE COURT FOUND CREDIBLE LOCKHEED’S TESTIMONY REGARDING THE FUNCTIONAL AND EXTERNAL OBSOLESCENCE BECAUSE THESE FACTORS AFFECT THE FAIR MARKET VALUE AND ARE REQUIRED UNDER THE COST VALUATION METHOD.

Under the cost valuation method set forth in the consolidated county assessment law, the court must consider “all forms of obsolescence.” Although Council Rock’s cost valuation methodology was otherwise credible, Mastroieni failed to consider either functional or external obsolescence in her calculations. Accordingly, the court incorporated the functional and external obsolescence values offered by Lockheed.

A. Functional Obsolescence Calculations Apply to the Value of the Property.

Functional obsolescence is a downward adjustment on property value based on outmoded aspects of building design. For example, on the property, the cantilevered design of the office building, dating back to the 1970s, is now recognized as inefficient from a heating and cooling perspective.

Mastroieni testified that she did not calculate functional obsolescence because she believed that these downward adjustments were encapsulated in her depreciation calculations. This is incorrect, because the consolidated county assessment law indicates depreciation . and obsolescence are separate calculations.

By contrast, B ott testified that the property had a number of design factors that bear on functional obsolescence, both positive and negative, for a negative net effect on value. Bott testified that the negative effect of functional obsolescence on the property value ranged from 9% to 12%. Based on Bott’s calculations, the court deducted 9% for tax year 2008 (deduction of $6,552,000); 10.5% for tax year 2009 (deduction of $8,085,000), and 12% for tax year 2010 and 2011 (deductions of $8,532,000 and $10,020,000, respectively).

B. External Obsolescence Calculations Apply to the Value of the Property.

External obsolescence is a downward adjustment on property value based factors external to the property — in other words, market forces. External obsolescence may also include an undesirable use of a neighboring property, or the market conditions of the buyer or owner’s core business.

As set forth above, the court is required to consider external obsolescence as a component of the cost valuation method. Therefore, the court did not find credible Mastroieni’s testimony that external obsolescence was “not necessary.” Moreover, Mastroieni acknowledged that a global market downturn at the end of 2008 had an impact on the U.S. manufacturing sector and led to depressed real estate prices, which would be reflected in external obsolescence calculations, had she incorporated them.

Bott agreed that a global market downturn affected the manufacturing sector, weakening demand for real estate such as the subject property. He testified that market forces initially depressed the value of the property 5%, applicable to tax years 2008 and 2009. Bott testified that market forces then depressed the value of the Property another 5%, applicable to tax year 2010. Therefore, the court deducted half of the first 5% from the 2008 value (deduction of $1,820,000), and half of the first 5% from the 2009 value (deduction of $1,925,000). Then the court deducted the second 5% from the 2010 value (deduction of $3,555,000).

The court then arrived at the final fair market values by summing the external and functional obsolescence values offered by Bott, and subtracting those sums from the cost valuation calculations offered by Mastroieni, which included depreciation. Therefore, the court’s final fair market value calculations reflect the statutory definition of cost valuation method. Finally, the court arrived at the assessed value of the property by multiplying the cost valuation numbers by the stipulated common level ratios.

CONCLUSION

The court concludes that Council Rock has shown by a preponderance of the evidence that the assessed values of the subject property established by the Bucks County board of assessment appeals are far below what is indicated under the applicable law. The court further concludes that the assessed values of the subject property are equal to the cost valuation figures introduced by Council Rock, less the functional and external obsolescence values introduced by Lockheed, as set forth in detail above.

Wherefore, it is the verdict of this court that the determination of the board of assessment appeals of Bucks County is reversed and the proper assessment value of the property is as follows:

7. The assessed value for 2008 is $5,862,948.
8. The assessed value for 2009 is $6,297,060.
9. The assessed value for 2010 is $5,724,261.
10. The assessed value for 2011 is $8,009,320.
11. The assessed value for 2012 is $8,303,240.
12. The assessed value for 2013 is $7,935,840.

Judgment to be entered accordingly.

ORDER

And now, this 11th day of February, 2013, the court withdraws its opinion originally filed February 5, 2013, due to incorrect calculations in its final conclusion, and issues the following amended opinion.

      . Council Rock’s petition for appeal, Nov. 28, 2007.

        . Id.

      . Notes of trial testimony, hereinafter “N.T.,” 12/10/2012, 23:18-23.

      . N.T., 12/10/2012, 24:17-20; Real estate appraisal report of Maureen Mastroieni, Oct. 18, 2007 (and amended July 26, 2011), on behalf of Council Rock School District (hereinafter “Council Rock Ex. 2”), at 1.

      . N.T., 12/10/2012, 35:4-14; see Council Rock Ex. 2, at 1.

      . N.T. 12/10/2012, 36:12-18; N.T., 12/11/2012, 105:18-23.

      . N.T., 12/10/2012, 35:15-16; N.T., 12/11/2012, 106:12-14.

      . N.T., 12/10/2012, 32:16-22.

      . N.T., 12/10/2012, 37:19-20; 38:23-25.

      . Council Rock Ex. 2, at 17.

      . N.T., 12/10/2012, 37.

      . N.T., 12/10/2012, 38:9-39:16; N.T., 12/11/2012, 106:18-20.

      . Real estate appraisal report of Maureen Mastroieni as of January 1,2009, hereinafter “Council Rock Ex. 3,” at 26.

      . Real estate appraisal report of Maureen Mastroieni as of January 1, 2011, hereinafter “Council Rock Ex. 4,” at 28; N.T., 12/11/2012, 106:22-23.

      . iSeeN.T., 12/10/2012,4:12.

      . Council Rock Ex. 2, at 36. (“The methodology of the cost approach involves estimating the value of the subject parcel of land, as if vacant, by the sales comparison approach. The replacement cost of the improvements is estimated then reduced by the amount of physical depreciation and functional and economic obsolescence in the property on the valuation date.”)

      . Council Rock Ex. 2, at 42. (“The sales comparison approach is an opinion of value by comparing the subject properly to similar properties that have sold recently... adjusted for terms of the sale... and for location and physical characteristics.”)

      . N.T., 12/10/2012, 79:6-14.

      . 53 P.S. § 8842(a).

      . See N.T., 12/10/2012, 10:15-11-17. The common level ratios for the following tax years are: 2008:0.091; 2009:0.094; 2010:0.097; 2011:0.109; 2012:0.113; 2013:0.108.

      .N.T., 12/10/2012, 6:22-25. The parties stipulated that the court’s market value determination for 2011 should prevail in 2012 and 2013.

      . 53 P.S. §8854(a)(2)(i); seeN.T., 12/10/2012, 10:15-11-17.

      . Grand Prix Harrisburg, LLC v. Dauphin Cnty. Bd. of Assessment Appeals, 51 A.3d 275, 277 (Pa. Commw. Ct. 2012); see N.T., 12/10/2012, 20:14-21; N.T., 12/11/2012, 94:8-13.

      . Buhl Found. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cnty., 180 A.2d 900, 902 (Pa. 1962); Tech One Assoc. v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cnty., 53 A.3d 685, 701 (Pa. 2012) (refusing to separate the property into a leased parcel and a non-leased parcel).

      . Green v. Schuylkill Cnty. Bd. of Assessment Appeals, 772 A.2d 419, 426 (Pa. 2001).

      . See Appeal of Avco Corp., 515 A.2d 335, 337-38 (Pa. Commw. Ct. 1986).

      . Green, 772 A.2d at 433.

      . Id.

      . 53 P.S. § 8811(b)(1); N.T., 12/10/2012, 111:3.

      . Grand Prix Harrisburg, 51 A.3d at 277.

      . See N.T., 12/10/2012, 9:13-19.

      . Deitch Co. v. Bd. of Prop. Assessment of Allegheny Cnty., 209 A.2d 397, 402 (Pa. 1965).

      . Id.

      . N.T., 12/10/2012, 99:11-12.

      . N.T., 12/11/2012,145:11-18.

      . 27 Summ. Pa. Jur. 2d Taxation § 15:10 (2d ed.); see N.T., 12/10/2012,31:9-25.

      . See N.T., 12/10/2012, 79:16-20.

      . 53 P.S. § 8842(b)(iii)(A).

      . See N.T., 12/10/2012,55:23-57:10; F & M Schaeffer Brewing Co. v. Lehigh Cnty. Bd. of Appeals, 610 A.2d 1, 5 n.3 (Pa. 1992) (replacement by generalized component is called the “unit-in-place” subtype of replacement cost methodology, and it is accepted in Pennsylvania).

      . 53 P.S. §8811(b)(1).

        . F & M Schaeffer Brewing Co., 610 A.2d at 4.

      . F & M Schaeffer Brewing Co., 610 A.2d at 5. (“The objective of a cost valuation approach is to estimate, as closely as possible, the cost to construct new the existing taxable real estate because that is, after all, the subject of the assessment — not the production process or use of the property.”)

      . 720 A.2d 790 (Pa. Commw. Ct. 1998); 903 A.2d 620 (Pa. Commw. Ct. 2006); see N.T., 12/12/2012, 233:1-5.

      . See Air Products, 720 A.2d at 794 (“the property may not be taxed as though it were currently subdivided and developed”); Craftmaster, 903 A.2d at 631 (“valuation of the parcels in that altered state was too speculative and it was legal error for the trial court to base its decision on that testimony.”)

      . Craftmaster, 903 A.2d at 630. (“consideration of factors based on pure speculation... are irrelevant to the issue of fair market value.”) (citation omitted).

      . N.T., 12/11/2012, 62:23-24.

      . N.T., 12/11/2012, 63:8-21.

      . N.T., 12/10/2012 30:3-4 (Mastroieni: “So in this case the highest and best use is what is there.”); N.T., 12/11/2012 144:24-145:5 (Bott: “For continued use as office, testing and production facility”).

      . See Craftmaster, 903 A.2d at 633.

      . N.T., 12/10/2012, 52:2-53:221. Even under a cost replacement or reproduction model, the value of the land itself is calculated using comparable sales because land is neither replaceable nor reproducible.

      . N.T., 12/10/2012 54-12-13

      . N.T., 12/10/2012, 57:15-18; Council Rock Ex. 2, at 41.

      . Council Rock Ex. 2, at 41.

      . N.T., 12/11/2012,21:12-22:4.

      . N.T., 12/11/2012,21:2-22:10; 26:14-27:19; 30:6-9.

      . N.T., 12/11/2012, 35:24-25.

      . Id.

      . N.T., 12/10/2012.

      . N.T., 12/10/2012,38:11-17.

      . Report of William Bott (hereinafter “Lockheed Ex. 9”) at 30, “Physical Condition.”

      . N.T., 12/10/2012, 56:9-57:4; N.T., 12/11/2012, 39:3-23.

      . N.T., 12/10/2012, 58:24-59:3.

      . N.T., 12/10/2012, 59:16-60:3.

      . N.T., 12/10/2012, 59:12-23.

      . N.T., 12/10/2012, 60:7-8.

      . Council Rock Ex. 3, at 55.

      . N.T., 12/10/2012, 93:11-15.

      . Council Rock Ex. 3, at 61.

      . N.T., 12/10/2012, 95:5-14.

      . N.T., 12/10/2012, 100:5-9; 102:12-13.

      . N.T., 12/10/2012, 104:5-106:14.

      . N.T., 12/10/2012, 43:25-44:21; 45:11-17.

      . N.T., 12/12/2012, 10:16-18; 17:17-20; 22:22-25; 25:2-5; 32:14-18.

      . See id

      . N.T., 12/12/2012, 9-32.

      . N.T., 12/12/2012,20:9-17; 21:4-6.

      . 53 P.S. §8842(b)(l)(iii)(A).

      . N.T., 12/10/2012, 60:12-20 (testifying, “at this point in time neither functional nor external obsolescence are necessary”).

        . See, e.g., N.T., 12/12/2012, 148:7-10.

      . See N.T., 12/10/2012, 118:13-16; N.T., 12/11/2012, 43:1-5.

      . N.T., 12/11/2012,42:16-25.

      . 53 P.S. §8842(b)(l)(iii)(A).

      . N.T., 12/11/2012, 120-125 (referencing Lockheed Ex. 9, at 30-32).

      . N.T., 12/11/2012,126:1-14; 231:13-232:9. Bott testified that the overall decrease due to depreciation and obsolescence ranged from 60% to 65%, and that functional obsolescence ranged from 15% to 20% of the total decrease. Bott attributed 60% to 2008, a “slight increase” to 2009, and 65% to 2010 and again to 2011. Therefore, the court calculated the negative net effect of functional obsolescence on the Property value was 9% in 2008,10.5% in 2009, and 12% in 2010 and 2011.

      . N.T., 12/11/2012, 132:8-12.

      . N.T., 12/11/2012, 48:23-49:9.

      . 53 P.S. §8842(b)(l)(iii)(A).

      . N.T., 12/10/2012, 60:12-20.

      . See N.T., 12/10/2012,45:1-3; 94:10-12; 96:14-18: 101:4.

      . N.T., 12/11/2012, 98:4-99:25; 100:15-101:13.

      . N.T., 12/11/2012, 104:2-7.

      . Id.


author: FORD, J.,

text:
    Hockel v. Bennicoff

      C.P. of Lehigh County,
    No. 2012-C-0885.

      Michael C. Deshler, for plaintiff.

      Gerald M. Barr, for defendant.
    February 25, 2013
   FORD, J.,

This case involves an unfortunate dispute among family members. The primary issue is whether the defendants, Robert W. Bennicoff Jr. and Barbara G. Bennicoff, who are the parents of plaintiff, Lisa M. Hockel, should be compelled by the court to reconvey real estate located in Lower Milford Township, Lehigh County, to the plaintiff. After consideration of the evidence presented at the bench trial on October 10, 2012, and the applicable law, the court concludes that the several requests contained in the complaint should be denied and only one aspect of the counterclaim in regard to rental payments should be granted. I enter an order today directing these things. I first explain what happened among the parties and I then provide an analysis of the applicable law.

Findings of Fact

1. Plaintiff, Lisa M. Hockel, is the adult daughter of defendants, Robert W. Bennicoff Jr. and Barbara G. Bennicoff.

2. By deed dated April 13,2001, defendants conveyed to plaintiff and Keith Lee George, then her husband, a vacant 4.0576 acre parcel of land in Lower Milford Township, Lehigh County. (The deed is Exhibit P-1.)

3. Plaintiff and Mr. George conveyed a 1.989 acre portion of the parcel back to defendants by a deed dated October 4, 2002. (This deed is Exhibit P-2.) This reconveyance was done for tax advantage purposes. This left plaintiff and Mr. George with a 2.0686 acre parcel known as 1280 Wind Hill Road, Lower Milford Township. This is the property that is disputed in this litigation. In 2002, plaintiff and Mr. George built a two-story single family dwelling on the property.

4. Plaintiff and Mr. George mortgaged the disputed property for the total principal amount of approximately $212,900. (See Exhibits P-3, P-4, and P-5.)

5. Plaintiff and Mr. George experienced marital difficulties which led to their divorce on March 1, 2006.

6. In the course of distribution of their marital property, plaintiff and Mr. George had discussions with defendants as a result of which an oral agreement was reached as to the disputed real estate. Under this agreement, plaintiff and Mr. George would reconvey the disputed property to defendants in return for defendants’ payment of the mortgage debt incurred by plaintiff and Mr. George on the disputed property.

7. In accord with their oral agreement, plaintiff and Mr. George reconveyed the disputed property to defendants on May 9, 2005. (See Exhibit P-7.) Defendants then satisfied the mortgage debt on the premises in the amount of about $205,000 through a new home equity loan. Defendants have maintained the disputed property since then which has included the payment of taxes and homeowner’s insurance.

8. In the course of their marriage, plaintiff and Mr. George had a child, Emma Lynn George, who was bom on April 7,2001. Defendants are emotionally very close to their granddaughter, Emma. They did not and still do not want her to move from the disputed property.

9. Following the divorce, plaintiff and Emma continued to live at the disputed property in return for the payment of a monthly rental of $700, an amount agreed between plaintiff and defendants. Mr. George moved from the property. In 2007, plaintiff married Jack Hockel who lives as the disputed property with plaintiff and Emma.

10. Plaintiff wishes to have the disputed property reconveyed to her by defendants for $205,000, the amount that defendants paid to satisfy the previous mortgages incurred by plaintiff and Mr. George. Plaintiff claims that there was an oral agreement at the time of the last (May 9, 2005) conveyance that defendants would again transfer the property to her for $205,000. Defendants agree that there was an agreement for a reconveyance; however, there was no agreement, oral or written, as to the amount to be paid for it. The parties have been unable to resolve this disagreement and it has led to a falling out among them.

11. While defendants have been generous in the various real estate transactions described herein to plaintiff, their daughter, since her marriage to Mr. George, defendants did not act as financial advisors to plaintiff or otherwise act in a secret or confidential manner to benefit plaintiff.

12. Plaintiff paid the $700 in rent through September of 2011 although some unproven rental payments were missed before then. Plaintiff has not paid rent since September of 2011. When plaintiff did not pay the October 2011 rent payment, Mr. Bennicoff sent a written demand to plaintiff for an increase in the rent from $700 per month to $1,600 per month. Plaintiff did not respond to this demand nor did she pay any rent payments from October 1, 2011, to the present.

13. In late 2011, Mr. Bennicoff demanded that plaintiff and Mr. Hockel remove personal property from the north bam located on defendants’ property or pay storage rental in the amount of $200 per month. Two months was given to do this. Plaintiff and her husband removed some of the property but did not remove other property within the two months. Thereafter defendants changed the locks on the north bam so that nothing could be removed by plaintiff and her husband.

Discussion and Conclusions of Law

In the complaint, plaintiff asks that the court declare that defendants hold the disputed real estate in constructive trust for the plaintiff. Plaintiff wants the defendants to be ordered to reconvey the property to her for the amount of $205,000. This was the amount defendants paid at the time of plaintiff’s divorce to satisfy the mortgages on the property in return for reconveyance of the disputed property to them, the defendants. Plaintiff says that these were the terms of her oral agreement with defendants.

Defendants respond that the statute of frauds, 33 P.S. § 2, requires that such an agreement in conjunction with the transfer of real estate must be in written form to be enforceable. Defendants also assert that not even an oral agreement was reached as to the terms for a reconveyance of the disputed property from them to plaintiff. While defendants expressed a willingness to reconvey the property, they say that the cost of the reconveyance is still to be determined. Also, according to defendants, an essential requirement for the imposition of a constructive trust has not been proven, namely, that a confidential relationship existed between plaintiff and defendants. It is defendants’ position that no such relationship existed.

The Pennsylvania Supreme Court has addressed the requirements for the imposition of a constructive trust on real estate among family members in Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966). According to the Supreme Court, if the requirements for a constructive trust are met, the statute of frauds “would not be operative in [such a] case, since a constructive trust, being implied by law, is expressly excluded from the operation of the statute.” Id. at 536, 219 A.2d at 661. Thus, for plaintiff to succeed in enforcing the agreement for the transfer of real estate that she alleges, she must demonstrate the existence of a constructive trust. Otherwise, the statute of frauds bars any recovery for her.

The Supreme Court explained what is necessary for a constructive trust to bring about the transfer of real estate among those in a confidential relationship:

It is settled that where property is conveyed to one in a confidential relationship to the transferor, subject to a promise to reconvey which is subsequently breached, equity will intervene by imposing a constructive trust to prevent the unjust enrichment of one so abusing a confidential relationship. [Citations omitted. It is necessary that both a confidential relationship and reliance upon a promise to reconvey induced by that relationship be shown.

Id. at 537, 219 A.2d at 661-62.

It is necessary to inquire if a confidential relationship existed between transferor, plaintiff and transferees, defendants. The Supreme Court explained:

Although no precise formula has been devised to ascertain the existence of a confidential relationship, it has been said that such a relationship is not confined to a particular association of parties but exists whenever one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest. [Citations omitted.]
While the mere fact of a mother-son relationship, without more, will not support a finding of a confidential relationship, it is a factor which cannot be ignored....

Id. at 537-38, 219 A.2d 659 at 662.

With the applicable law in mind, plaintiff’s proof fails in several respects. First, she relies upon an alleged oral agreement. The crucial aspect of her allegation is that her father committed himself to transferring the disputed property back to her for the specific price of $205,000. While plaintiff has proven that there was a commitment that defendants restore the property to her, an agreed amount for that transfer has not been proven. The believable evidence presented a situation where the parties had no more than expectations, hopes and possible amounts for the future transfer. The price that plaintiff wants enforced through a constructive trust has not been proven. The Statute of frauds need not be discussed since plaintiffhas not shown even an oral agreement about the consideration to be paid.

Also, a constructive trust cannot be imposed because plaintiffhas failedto demonstrate a confidential relationship between her and the defendants. Believable proof was not presented that defendants acted as plaintiff’s advisors or counselors in these real estate transactions or in any other significant matters since plaintiff married Mr. George on September?, 1996.

It is undisputed that plaintiff agreed to pay rent at $700 per month while she lived at the property. She missed some of the payments but there was no proof of amounts missed so an award cannot be made as to them. It is also undisputed that plaintiffhas not paid any monthly rent since October 1, 2011. Defendants are entitled to that monthly rent from October 1, 2011, to the present and for the remaining period of plaintiff’s occupancy. This is reflected in today’s order. Defendants’ attempt at a unilateral rent increase to $1,600 per month is ineffective. See Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550 (Pa.Super. 2006) (noting that a contract modification must be agreed to by both parties). Defendants’ remedy for the default is eviction, not a rent increase.

There is no award for storage fees. The $200 per month sought was a demand by defendants, without agreement by plaintiff. This demand was made after years of storage of items by plaintiff in the north barn without charge to her. Also, plaintiff removed significant items in the two months given to her and her husband for removal. The evidence is lacking as to the efforts made by plaintiff to remove the things. Were these good faith attempts by her or not? Then, after two months, nothing could be removed because of the changing of the locks.