author: YATRON, P.J.,

text:
    Commonwealth v. Fenner

      C.P. of Berks County,
    No. CP-06-CR-0003036-2013

      Jessica A. Brown and Elizabeth M. Ebner, for appellant.

      Todd A. Mays, the Commonwealth.
    March 2, 2015
   YATRON, P.J.,

Vincent Fenner (“appellant”) pled guilty to robbery of a motor vehicle on November 24, 2014. Appellant was sentenced the same day to not less than four-and-a-half (4.5) nor more than fifteen (15) years’ incarceration, with credit for 536 days of time served. Appellant filed a notice of appeal on December 23, 2014. We granted the withdrawal petition of appellant’s attorney, Elizabeth M. Ebner, Esquire, on January 12, 2015; in the same order, we appointed the Berks County Public Defender’s Office to represent appellant. On February 4, 2015, we ordered the filing of a concise statement of errors pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Appellant filed a timely concise statement on February 25, 2015.

Appellant raises the following matters for appellate review:

1. That the decertification court abused its discretion in denying the defendant’s petition to decertify this matter to juvenile court.

CONCISE STATEMENT, February 25, 2015.

Procedural History

At the time of the criminal offenses, appellant was seventeen years old. On January 23, 2014, appellant’s then-attorney, Sean Fitzgerald, Esquire, filed a “motion to transfer from Criminal Court to Juvenile Court.” Judge Arthur E. Grim denied the petition in an order dated April 29,2014. The order succinctly but comprehensively explains the sound reasoning of Judge Grim’s decision, and we reproduce it here in its entirety:

AND NOW, this 29th day of April, 2014, after hearing, upon consideration of the testimony, the evidence, as well as the arguments of counsel, the court concludes that the defense has failed to establish by a preponderance of the evidence that the transfer will serve the public interest; and, accordingly, the petition to decertify this matter to the Juvenile Court is denied in accordance with 42 Pa.C.S.A. Section 6322.
In determining whether the child has so established that the transfer will serve the public interest, I have considered the factors set forth in Section 6355(a)(4) (iii); to wit, the impact of the offense on the victim or victims, which the court has found to be extraordinarily serious; the impact of the offense on the community; the threat to the safety of the public posed by the child; the nature and circumstances of the offense committed by the child; the degree of the child’s culpability as well as the adequacy and duration of dispositional alternatives available under the Juvenile Act as well as in the Adult Criminal Justice System.
In addition, I have considered whether the child is amenable to treatment, supervision, or rehabilitation as a Juvenile and have determined, based on all factors set forth in Subparagraph (G), that he is not amenable. It has also been stipulated that the child is not committable to an institution for the mentally retarded or mentally ill. And as a result, the defense petition requesting transfer of this matter to the Juvenile Court is denied.

ORDER, April 29, 2014.

Discussion

Appellant argues that the decertification court abused its discretion in denying his petition to decertify the case to juvenile court. CONCISE STATEMENT at ¶1.

The appellate courts afford great deference with regards to decertification. “Decisions of whether to grant decertification will not be overturned absent a gross abuse of discretion.” Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003) (quoting Commonwealth v. Aziz, 724 A.2d 371, 378 (Pa. Super. 1999), appeal denied, 759 A.2d 919 (Pa. 2000)). “An abuse of discretion is not merely an error of judgment but involves the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment passed upon partiality, prejudice or ill will.” Sanders, 814 A.2d at 1250 (quoting Commonwealth v. McGinnis, 675 A.2d 1282, 1285 (Pa. Super. 1996)).

Due to the nature of the charges in this case, appellant was obliged to show by apreponderance ofthe evidence that a transfer to juvenile court would serve the public interest. See 42 Pa.C.S.A. § 6322(a). In making this determination, Pennsylvania law requires that the decertification court consider the following factors:

(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual posed by the child;
(D) the nature and circumstances of the offense allegedly committed by the child;
(E) the degree of the child’s culpability;
(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and
(G) whether the child is amenable to treatment, supervision or rehabilitation as a juvenile by considering the following factors:
(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication exhibited by the child;
(V) previous records, if any;
(VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors; and
(iv) that there are reasonable grounds to believe that the child is not committable to an institution for the mentally retarded or mentally ill.

42 Pa.C.S.A. § 6355(a)(4)(iii). The Juvenile Act does not, however, dictate the weight assessed to each factor by the court, and it does not require the court to provide a detailed explanation of its decision. Sanders, 814 A.2d at 1251 (citing Commonwealth v. Jackson, 722 A.2d 1030, 1033 (Pa. 1999)); see also Commonwealth v. Ruffin, 10 A.3d 336, 339 (Pa. Super. 2010) (citation omitted) (“A decertification court must consider all the facts set forth in § 6355 of the Juvenile Act, but it need not address, seriatim, the applicability and importance of each factor and fact in reaching its final determination.”). “The ultimate decision of whether to certify a minor to stand trial as an adult is within the sole discretion of a decertification court.” Sanders, 814 A.2d at 1251 (quoting Jackson, 722 A.2d at 1034).

In the order transcribed supra, Judge Grim explains that he considered the requisite six factors contained in Section 6355(a)(4)(iii). We have reviewed the notes of testimony from the decertification hearing held April 29, 2014, and we agree entirely that a transfer would not have served the public interest. Judge Grim’s decision to deny decertification comes nowhere near a “gross abuse of discretion,” which is the applicable standard.

For purposes of the decertification hearing, counsel stipulated that there was a prima facie case. NOTES OF TESTIMONY (“N.T.”), April 29, 2014 at 4. Counsel also stipulated to appellant’s prior juvenile record in York County. Id. at 5. With regards to the underlying offense, the following exchange during appellant’s guilty plea usefully summarizes the relevant facts:

District Attorney: By pleading guilty do you admit that on or about the date of April 15th of '2013, that you were in the area of 1643 Lancaster Avenue, Cumru Township, Berks County, Pennsylvania; that while there, an individual by the name of Victor Castillo was working at Supreme Cleaners. He got off his shift, went into his vehicle. When he sat down in his vehicle, he had a side window down. You did approach the vehicle, displayed a handgun through the open window at Mr. Castillo. You demanded that he exit the vehicle —
Appellant: Yes.
District Attorney: — or you would shoot him. He then exited the vehicle. You did threaten him again that you would shoot him when he exited the vehicle and he did then flee. You did then jump in the vehicle and steal the vehicle that was rented by Victor Castillo, a 2013 Hyundai Sonata, and you did then take that vehicle?
Appellant: Yes.
District Attorney: Do you admit those facts?
Appellant: Yes.

N.T., November 24, 2014 at 5-6.

During the decertification hearing, the defense called Dr. Larry Rotenberg, an expert in the field of psychiatry. Dr. Rotenberg testified that society would be better served if appellant was retained in the juvenile justice system. N.T., April 29, 2014 at 7-56. Dr. Rotenberg also testified, however, that appellant “would be at the bottom 10 percent of the people that I would recommend for being in the juvenile system for all the reasons I’ve said and all of his escalating activities.” Id. at 27.

The Commonwealth then called Christopher Lis, a police detective for Cumru Township in Berks County, who investigated this case and filed the charges. Id. at 57-58. Detective Lis testified that the alleged crimes had impacted the community. Specifically, residents and employees of the area feared that the area may be unsafe. Id. at 59, 66. The community was aware that a gun had been used during the commission of the crime, and carjackings are exceedingly rare in Cumru Township. Id. at 61, 66. Additionally, the victim of the crime remained “traumatized” and “devastated,” even after a significant passage of time. Id. at 62. When Officer Lis interviewed appellant, he seemed fearful of the possible consequences, but he exhibited no empathy towards the victim. Id. at 63.

The Commonwealth also called the vi ctim of the crime to testify. Id. at 68. The victim recounted the terror he felt that day due to appellant’s threats and actions. He also described how the crime had dramatically impacted his livelihood, family life, and mental health. Id. at 70-79.

In light of this evidence and testimony, appellant has clearly failed to establish that the decertification court abused its discretion in failing to decertify his case to juvenile court. The decertification court considered the extraordinarily serious nature of the crime, appellant’s role in the offense, and the devastating effect of the crime on the victim. The record entirely supports Judge Grim’s decision. Indeed, it is difficult to imagine how it could be construed as an abuse of discretion.

Conclusion

For all of the foregoing reasons, this court respectfully requests that the instant appeal be denied and the judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3702(a).

      . In Sanders, the Superior Court found no abuse of discretion where the lower court offered this brief explanation of its decision:
      As the shooter of three (3) individuals in this case, the defendant was the primary moving force in these crimes. He demonstrated a callousness for the value of human life and a criminal sophistication devoid of amenability in the juvenile system. His lack of criminal record as a factor pales in comparison with the other factors that mandated a denial of his petition for decertification. Therefore, the defendant’s claim must fail.

        Sanders, 814 A.2d at 1252. Accordingly, Judge Grim’s order is clearly sufficient, as it offers a more thorough explanation of his reasoning.


source: Caselaw Access Project

author: GRAY, J.,

license: Public Domain

text:
    Harrison v. Haueisen

      C.P. of Lycoming County,
    No. 14-02,685

      Norman D. Namey, for plaintiffs.

      Claire Neiger, for defendants.
    April 2, 2015
   GRAY, J.,

Before the court are defendants preliminary objections consisting of a demurrer to claims based upon an alleged violation of the Dangerous Dog Law, 3 P.S. § 459-501A, et. seq, (Dangerous Dog Law) and a demurrer to the claim for punitive damages. Upon consideration of the argument and briefs submitted by counsel, the court overrules the demurrers. The following opinion is provided in support of this court’s rulings.

Background

This case involves a dog attack of two people. The allegations in the complaint follow.

On June 17, 2014, plaintiffs suffered an unprovoked attacked by a dog while taking an evening walk on the sidewalk of a public street. The dog violently attacked both of them without provocation. During the attack, the dog bit Allen Harrison. As a result of the attack, both plaintiffs suffered permanent and severe injuries.

The defendants owned, possessed and controlled the vicious dog at their property on Isabella Street. Complaint, ¶ 5. At the time of the attack, defendants had not restrained, muzzled, leashed or otherwise restricted the dog, so as to prevent the dog from attacking pedestrians. The dog had a “known history of aggressive tendencies towards humans.” Complaint, ¶ 6. According to the complaint, the defendants knew or should have known the dog had dangerous propensities and that the dog was ferocious, vicious and mischievous in nature. The dog previously bit a child. Neighbors previously complained to defendants about their failure to restrain their dog and about the dog’s vicious propensities. Shortly before the attack, on June 11, 2014, a complaint was made to the Williamsport Police about a separate dog biting incident. Shortly after the attack, defendants’ authorized the SPCA to euthanize the dog “due to the history of vicious incidents.”

Legal Standards

Preliminary Objections

A party may file preliminary objections based on the legal sufficiency or insufficiency of a pleading (demurrer) pursuant to Pa. R.C.P. 1028(a)(4). A demurrer tests the legal sufficiency of the complaint. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 714 (Pa. Super. 2005). When reviewing preliminary objections in the nature of a demurrer, the court must “accept as true all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts.” Thierfelder v. Wolfert, 52 A.3d 1251, 1253 (Pa. 2012), citing, Stilp v. Commonwealth, 940 A.2d 1227, 1232 n.9 (Pa. 2007). In deciding a demurrer “it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.” Melon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) (citations omitted). “Preliminaiy objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992)(emphasis added).

The Dangerous Dog Law

An unexcused violation of the Dangerous Dog Law, 3 P.S. § 459-501A, et. seq., constitutes negligence per se. Underwood v. Wind, 954 A.2d 1199, 1204 (Pa. Super. 2008), citing, Miller v. Hurst, 448 A.2d 614, 616 (Pa. Super. 1982). However, negligence per se does not equate to absolute liability; both liability and causation must still be established. See, Underwood, supra; Villaume v. Kaufman, 550 A.2d 793, 796 (Pa. Super. 1988).

Punitive Damages

It is well settled in Pennsylvania that “punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” See, Feld v. Merriam, 485 A.2d 742, 747-748 (Pa. 1984), citing, Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963) see also, Phillips v. Cricket Lighters, 883 A.2d 439, 445-446 (Pa. 2005); Hutchison Ex. Re. Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005). Pennsylvania has embraced the RESTATEMENT (SECOND) OF TORTS §908(2) with respect to punitive damages. To prevail in a punitive damages claim, plaintiff must establish that: “(1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed” and (2) the defendant “acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, supra, 870 A.2d at 771.

Discussion

Defendants’ filed two preliminary objections. The first preliminary objection is a demurrer to claims based on alleged violation of the Dangerous Dog Law. The second preliminary objection is a demurrer to punitive damages claims. The court will discuss the demurrers in turn.

Negligence Per Se

Defendants seek to strike ¶ 17(n) and Count VI of the complaint on the grounds that the Dangerous Dog Law may not form the basis for liability. Plaintiffs cited a long line of cases for the proposition that an unexcused violation of the Dangerous Dog Law, 3 P.S. § 459-501A, et. seq., constitutes negligence per se. See, plaintiffs’ brief, at 3-4, citing, Miller v. Hurst, supra, Deardorff v. Burger, 414 Pa. Super. 45, 51 (Pa. Super. 1992); Skowronski v. Bailey, 330 Pa. Super 83, 478 A.2d 1362 (1984); Rosen v. Tate, 2003 Pa. Dist. & Cnty. Dec. LEXIS 175 (Lehigh Co. 2003); and Mangino v. Cowher, 2010 Pa. Dist. & Cnty. Dec. LEXIS 252 (Lawrence Co. 2010). In opposition, defendants contend that the Dangerous Dog Law is a criminal provision and cannot create a civil standard of liability. This proposition rests almost entirely upon the trial court opinion in Kormos v. Urban, No. GD 03-25548 (C.P. Allegheny September 15, 2005), affirm’d, 911 A.2dd 193 (Pa. Super. 2006).

Defendants follow the argument alluded to in Kormos that since the Dangerous Dog Law was amended to allow a dog’s propensity for violence to be established by one incident, a violation of the law cannot constitute negligence per se because it would impermissibly impose strict liability and run afoul of the long standing law in Pennsylvania regarding liability for unprovoked dog bites. Liability for an unprovoked dog bite requires plaintiff to establish that a dog owner knew or should have known of the dog’s dangerous propensity. Kormos, at * 5, citing Kinley v. Bierly, 2005 PA Super 168, 876 A.2d 419 (Pa. Super. 2005) and Anderws v. Smith, 324 Pa. 455, 188 A. 145

The court is not persuaded that the amendments to the Dangerous Dog Law or the trial court decision in Kormos overrule the line of cases cited by plaintiffs. Even after the amendments, the Pennsylvania Superior Court has held that an unexcused violation of the Dangerous Dog Law constitutes negligence per se. Underwood v. Wind, 954 A.2d 1199, 1204 (Pa. Super. 2008), citing, Miller v. Hurst, 448 A.2d 614, 616 (Pa. Super. 1982). Underwood, supra, was decided after the amendments. In Underwood, the Pennsylvania Superior Court cited with approval the line of cases cited by plaintiffs. The court further explained that negligence per se (a violation of the Dangerous Dog Law) does not equate to absolute liability; both liability and causation must still be established. See, Underwood, supra; Villaume v. Kaufman, 550 A.2d 793, 796 (Pa. Super. 1988). The Underwood Court concluded that the dog attack at issue could be considered for purposes of determining whether the dogs had “violent propensities” even though it was the first incident. Underwood, supra, 954 A.2d at 1205. As liability is not absolute, negligence per se does not impermissibly impose strict liability.

Moreover, the present case is significantly distinguishable from Kormos. In Kormos, the trial court granted a compulsory nonsuit in a jury trial at the close of plaintiff’s case-in-chief. In that case, the plaintiff failed to present sufficient that the defendants violated any of the sections of the amended Dangerous Dog Law. Id. at *5-6. In addition, the plaintiff failed to establish that the dog had a vicious propensity. By contrast, the present matter is at the preliminary objections stage where the well-pleaded facts are taken as true. Here, plaintiffs have alleged that the defendants have violated the Dangerous Dog Law. Plaintiffs have alleged that there have been prior incidents and other allegations from which to establish the owners’ knowledge of the dog’s violent propensities. Plaintiffs have alleged that the dog had violent propensities. These factual allegations taken as true starkly contrast with the evidence presented at the jury trial in Kormos. Accordingly, this court concludes that Dangerous Dog Law may form the basis for liability.

Punitive Damages

As to the demurrer to the claim for punitive damages, the court concludes that the plaintiffs have alleged sufficient facts in support of its punitive damage claim. To prevail in a punitive damages claim, plaintiff must establish that: “(1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed” and that (2) the defendant “acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, 870 A.2d 766, 771 (Pa. 2005) Accepting as true “all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts” with any doubt being “resolved by the overruling of the demurrer,” the court concludes that plaintiffs plead sufficient facts to establish that defendants had a subjective appreciation of the risk of harm to which plaintiffs were exposed and acted or failed to act in a manner that showed conscious disregard of that risk.

According to the complaint, a report to the police about a dog biting incident was made about one week prior to the incident. Neighbors complained to defendants about the defendants’ failure to restrain the dog. Neighbors complained to defendants about the vicious propensities of the dog. Dean Haueisen displayed knowledge of the dog’s dangerous propensities when he spontaneously admitted to police that the dog had previously bitten a child. Nonetheless, the dog was not restrained and had access to a public street at the time the dog attacked plaintiffs. Complaint, ¶ 12 a-d. At this stage of the proceedings, the court believes that the above allegations taken as true, without access to an answer or any mitigating factors presented by defendants, sufficiently allege the requisite intent by defendants to allow a jury to award punitive damages.

ORDER

And now this 2nd day of April, 2015, it is ordered and directed as follows.

1. Defendants’ demurrer to negligence claims based upon a violation of the Dangerous Dog Law is overruled.

2. Defendants’ demurrer to the punitive damages claim is overruled.

3. This matter is placed on the court’s January 2016 trial term. A separate scheduling order will be issued this date.

4. Defendants shall file an answer within 20 days.

      . § 908 Punitive Damages
      (1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
      (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. Restat 2d of Torts, §908


author: HARLACHER SIBUM, /.,

text:
    Judgment2Justice v. Commonwealth Financial Systems, Inc.

      C.P. of Monroe County,
    No. 9737 CV 2010
    Jan. 28, 2015
   HARLACHER SIBUM, /.,

This matter comes before us on defendant’s petition to strike and/or vacate and/or open default judgment entered in Wisconsin and transferred to Monroe County, Pennsylvania. The relevant facts and procedural history are summarized as follows: On March 26, 2010, A3 Global Solutions, LLC (hereinafter A3 Global) commenced an action in Wisconsin against defendant, Commonwealth Financial Systems, Inc. After defendant failed to timely defend the action, A3 Global filed amotion for default judgment on May 10, 2010. The Wisconsin Circuit Court of Dane County granted A3 Global’s motion and entered a default judgment against defendant on May 13, 2010. Thereafter, defendant filed a petition to open the default judgment on May 20, 2010. On June 8, 2010, the Wisconsin Circuit Court, after oral argument, denied defendant’s petition to open the judgment.

On October 8, 2010, A3 Global filed a praecipe for foreign judgment in the amount of $117,570.72 with the Monroe County Prothonotary and execution was issued thereon. Defendant then filed a petition to strike, vacate or stay the judgment entered in Wisconsin on October 18, 2010. In support thereof, defendant alleges that (1) Wisconsin lacked jurisdiction over defendant and enforcing the judgment would violate defendant’s due process rights; and (2) plaintiff has failed to comply with the mandate of 42 Pa.C.S. § 4306(c). On December 12, 2014, Judgment2Justice became A3 Global’s party successor pursuant to Pa.RX.P. 2352. Upon review of all pleadings in this matter and oral argument heard on January 5, 2015, we are now prepared to decide.

DISCUSSION

Under the full faith and credit clause of the United States Constitution, Pennsylvania courts must recognize and enforce the judgment of its sister states. U.S. CONST, art. IV, § 1. Fulfilling this constitutional mandate, Pennsylvania enacted the Pennsylvania Uniform Enforcement of Foreign Judgments Act (UEFJA). 42 Pa.C.S. § 4306. The statute provides:

A copy of any foreign judgment including the docket entries incidental thereto authenticated in accordance with act of congress or this title may be filed in the office of the clerk of any court of common pleas of this Commonwealth. The clerk shall treat the foreign judgment in the same manner as a judgment of any court of common pleas of this Commonwealth. A judgment so filed shall be a lien as of the date of filing and shall have the same effect and be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth and may be enforced or satisfied in like manner.

42Pa.C.S. § 4306(b). While PennsylvaniaUEFJAprovides authority for common pleas courts to “reopen, vacate, or stay” foreign judgments, it should not be construed to override the constitutional prescription that full faith and credit be given to judicial proceedings in other states and the federal courts. U.S. CONST, art. IV, § 1; 28 U.S.C. § 1738; see also Tronagun Corp. v. Mizerock, 820 F.Supp. 225, 227 (W.D. Pa. 1993).

The Superior Court in Noetzel v. Glasgow, Inc., 487 A.2d 1372 (Pa. Super. 1985) has instructed that “[a] foreign judgment is entitled to full faith and credit in Pennsylvania so long as there was jurisdiction by the court which originally awarded the judgment, see Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974), and the defendant had an opportunity to appear and defend, see Morris Lapidus Associates v. Airportels Inc., 240 Pa. Super. 80, 361 A.2d 660 (1970).” Further, the court in Noetzel explained that:

When a court of competent jurisdiction has determined a litigated case on its merits, the judgment entered and not reversed on appeal, is forever and under all circumstances, final and conclusive as between the parties to the suit and their privies, in respect to every fact which might properly be considered in reaching a judicial determination of the controversy, and in respect to all points of law there adjudged, as those points relate directly to the cause of action in litigation.

Id., 487 A.2d at 1376. Therefore, the “validity” of a foreign judgment is established in the transferor court, and may not be examined or retried in Pennsylvania, except for the limited purposes of determining whether the transferor court had jurisdiction to enter the judgment, and whether the judgment was obtained without derogating the judgment debtor’s due process rights. Nobel Well Service, Inc. v. Penn Energy, 502 A.2d 200, 205-206 (Pa. Super. 1985).

In the instant case, defendant raises two arguments in support of its petition. First, defendant argues that the foreign judgment must be vacated and/or opened for lack of subject matter jurisdiction and lack of due process. Second, defendant argues that plaintiff has failed to comply with the strict mandates of 42 Pa.C.S. § 4306(c) by failing to attach an affidavit bearing defendant’s name and address. We will now address each of defendant’s arguments in turn.

a. Wisconsin’s Lack of Jurisdiction and Due Process

Defendant primarily contends that the Wisconsin judgment is void on its face because adequate notice of the motion for default judgment was not provided. Defendant cites to Wis. Stat. § 806.02(1), which provides that “[a] default judgment may be rendered...if no issue of law or fact has been joined and if the time for joining issue has expired. Any defendant appearing in an action shall be entitled to notice of motion for judgment.” Defendant further argues that by operation of Wis. Stat. § 801.15(5) (a) and Wis. Stat. § 801.15(l)(b), defendant should have been given 3-days notice of the default judgment, and that the judgment could not have been entered before May 14, 2010. Thus, defendant argues that they did not receive adequate notice of the motion for judgment thereby rendering the entry of default judgment void.

Upon further review, we find that defendant’s reliance on Wisconsin’s default judgment and timing statutes is misplaced. The statute governing default judgments in argument is more properly raised as a personal jurisdiction challenge. Upon review of the record, we agree with A3 Global’s argument.

In response to the default judgment, defendant filed a motion to reopen and extend the time to answer plaintiffs complaint on June 1, 2010 in the Wisconsin Court. By doing so, defendant has effectively entered their appearance before the Wisconsin court, and voluntarily submitted themselves to the court’s jurisdiction. “[Wjhere an appearance is made and relief is sought on other matters, the lack of personal jurisdiction objection is waived.” Lees v. DILHR, 182 N.W.2d 245, 250 (Wis. 1971). “Preliminary objections are the exclusive method of raising the questions of jurisdiction. See Monaco v. Montgomery Cab Company, 208 A.2d 252 (Pa. 1965). Failure to raise the issue of personal jurisdiction constitutes a waiver of that defense. Yentzer v. Taylor Wine Company, Inc., 186 A.2d 396 (Pa. 1962). We find that defendant has consented to Wisconsin’s jurisdiction and has waived any jurisdictional objections.

b. Plaintiff’s Failure to Comply with 42 Pa.C.S. § 4306(c).

Defendant argues that the judgment entered in Monroe County must be stricken because plaintiff has failed to comply with the requirements set forth in 42 Pa.C.S. § 4306(c). The statute provides in relevant part —

(c) Notice of filing. —
(1) At the time of the filing of the foreign judgment, the judgment creditor or his attorney shall make and file with the office of the clerk of the court of common pleas an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor. In addition, such affidavit shall include a statement that the foreign judgment is valid, enforceable and unsatisfied.
(2) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the attorney for the judgment creditor, if any, in this Commonwealth. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.

42 Pa.C.S. § 4306(c)(l)-(2). Further, a petition to strike a default judgment should be granted where a fatal defect or irregularity appears on the face of the record. U.K. Lasalle, Inc. v. Lawless, 618 A.2d 447 (Pa. Super. 1992). Defendant contends that plaintiff did not include an “affidavit” as required by § 4306(c)(1) when it filed the praecipe to enforce the Wisconsin judgment. Defendant further argues that in accordance with the holding in Ward v. Price, the technical filing requirements under § 4306 must be strictly complied with. 814 A.2d 262 (Pa. Super. 2002). We agree.

In Ward v. Price, the Superior Court held that the plaintiffs failure to attach an authenticated copy of the foreign judgment as required by 42 Pa.C.S. § 4306(b) was a fatal omission, and therefore the lower court was obliged to strike the foreign judgment pursuant to the statute. Id. at 263. Ward rejected the plaintiffs argument that the failure to include an authenticated copy of the foreign judgment was insignificant in light of all the documents the plaintiff did provide. The Superior Court in Ward agreed with the lower court’s strict reading of 42 Pa.C.S. § 4306(b); and further noted that adopting the plaintiffs argument would “create a discretionary standard that our legislature did not intend.” Id. at 264. While we recognize that Ward involved a different filing requirement under 42 Pa.C.S. § 4306, we see no reason to distinguish one filing requirement from another. Therefore, we conclude that a strict reading of 42 Pa.C.S. § 4306(c) requires a transferor to file an affidavit setting forth the name and address of the judgment debtor. Failure to include such affidavit is considered a fatal defect on the record. However, we note that while defective filings of foreign judgments are susceptible to dismissal, the statute does not preclude successive filings in order to cure procedural defects. See Gulf Mortgage and Realty Investments v. Alten, 7 Pa. D. & C. 3d 709 (Pa. Cmwlth. 1977). Accordingly, we enter the following order.

ORDER

And now, this 28th day of January, 2015, defendant’s petition to strike and/or vacate and/or open default judgment entered in Wisconsin and transferred to Monroe County, Pennsylvania is granted. Judgment entered on October 8, 2010 is hereby stricken.

      . Wis. Stat. § 801.15(5)(a) provides:
      (5) Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party: (a) If the notice or paper is served by mail, 3 days shall be added to the prescribed period.
      Wis. Stat § 801.15(l)(b) provides —
      (b) Notwithstanding ss. 985.09 and 990.001(4), in computing any period of time prescribed or allowed by chs. 801 to 847, by any other statute governing actions and special proceedings, or by order of court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a day the clerk of courts office is closed. When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.


author: PICCIONE, J.,

text:
    Riggans v. Wayne Homes

      C.P. of Lawrence County,
    No. 10990 of 2014 CA

      Daniel I. Herman, for plaintiffs.

      Jeffrey M. Olszewski, for defendant.
    March 18, 2015
   PICCIONE, J.,

Before the court for disposition is the petition for injunctive relief filed on behalf of the plaintiffs, John E. Riggans, III, and Samantha Riggans (hereinafter, the “plaintiffs”) and the preliminary objections filed on behalf of the defendants, Wayne ' Homes; New NV Vo., LLC, New NV Co., LLC d/b/a Wayne Homes, a/k/a WH Midwest, and WH Midwest (hereinafter, the “defendants”). This case arises from a dispute between contracting parties. The plaintiffs aver that on February 13, 2010, they entered into a contractual agreement (hereinafter, the “agreement”) with the defendant for the purpose of constructing a home. Prior to February 13,2010, plaintiff Samantha Riggans visited the defendant’s website to browse home construction options. She requested a quote on a house, and arranged a meeting in person. On February 13, 2010, the plaintiffs intended to drive to two companies’ offices to discuss building a home. They went to one office, which was closed, then drove to the defendant’s office in Ravenna, Ohio. The plaintiffs entered the office and a salesperson, Ms. Gloria Williams (hereinafter, “Williams”), approached them. The plaintiffs told Williams they wanted to build a home, and Williams showed the plaintiffs different models of homes and gave them brochures. Williams asked the plaintiffs in what time frame the plaintiffs wanted to construct their home, and the plaintiffs told Williams as soon as possible, the plaintiffs were getting married on August 24, 2010, or September 24,2010, and they wanted the house to be fully constructed by that date. Williams informed the plaintiffs that the defendant was busy and would have to be put on a waiting list to proceed. Williams told the plaintiffs that the sooner they could be put on the waiting list the better their chances were of having their home fully constructed by that date.

The plaintiffs believed that they had to be placed on the waiting list that date or else their home would not be finished by their wedding; so the plaintiffs agreed, paid a deposit, and Williams presented the plaintiffs with contract documents and building options. The plaintiffs decided on a model home, and Williams told the plaintiffs that the details could be decided at a later time. The plaintiffs recall that Williams handed them the agreement without giving the plaintiffs an opportunity to review it. Both plaintiffs described the process as Williams’ merely telling them where to sign, the more quickly the better. The plaintiffs spent approximately one hour with Williams on that date. The plaintiffs were excited and did not even think to stop to read the agreement nor did they have time to read it before signing it. The plaintiffs recall that they were not given a copy of the agreement from Williams, nor were they ever provided with a copy of the agreement in the mail or by other means by any other agent of the defendant. Similarly, the plaintiffs testified that they were not provided with a receipt of their $500.00 deposit. The first time the plaintiffs recall seeing the agreement was upon contacting an attorney for the purposes of pursuing claims against the defendant. The plaintiffs were also provided with a limited warranty document. Although both plaintiffs’ initials appear on each page of the document, the plaintiffs did not read the document nor was the document explained to them. The plaintiffs acknowledge that they were signing an agreement to build a home.

After the plaintiffs signed all the contract documents, Williams provided them with a binder. The binder contained color samples, cabinet samples, and other construction options. A contract summary was in the binder; however, a copy of each of the contract documents was not in binder. In the contract summary in the binder, the third bullet states that the parties agree to abide by binding arbitration. The Plaintiffs did not read the contract summary at any point on or after February 13, 2010.

The plaintiffs testified that they did not read any of the contract documents; and even if they had read the documents, they did not know was arbitration was. And the plaintiffs certainly did not know that the agreement stated that agreeing to arbitration meant that they would be relinquishing their right to a jury trial by signing the agreement. Plaintiff John E. Riggans, III, has a high school level of education, and plaintiff Samantha Riggans is a registered nurse. Each plaintiff testified that they would never have signed the agreement if they had understood that they were giving up their right to a jury trial on disputes between them.

Williams has been in the home sale business for approximately thirty years and has been with the defendant for six years as a sales consultant. Williams explained the process of entering into an agreement to build a home. First, a quote is given to a potential buyer, and the quote is explained. This information can be exchanged by telephone, in person, or online. Next, the potential buyer visits an office location to enter into an agreement to construct a home. Williams stated that she generally explains the contract provisions, including the arbitration provision, of the contract to the buyers and presents the contract documents to the buyers. Williams does not have the authority to close a deal if a buyer wishes to exclude a provision. After the documents are exchanged, reviewed and signed by the potential buyers, a copy is given to the buyer with a booklet that explains, step-by-step, how the house is built and in what timeline. The booklet contains various tabs and descriptions and has a place to put the purchase agreement. Williams does not have any recollection of the plaintiffs’ actually signing the documents, but she explained that in every case, she provides a copy of the contract documents to the buyer along with the booklet. Williams stated that had she not given a copy of the documents to the plaintiffs, she would be able to recall this mistake.

After the buyers sign the contract documents, the agreement is provided to management for approval. All of management has a meeting to approve the whole contract. After a contract is approved, it is signed by an agent of the defendant’s. Next, Williams sets up two appointments with the buyers. The first is a color appointment and the second is a preconstruction meeting. This process occurred with regard to the plaintiffs’ home construction. Williams recalled subsequently meeting with the plaintiffs, and the plaintiffs never asked for a copy of the agreement.

Plaintiff Samantha Riggans completed a survey after the completion of their home and another survey which was completed in October 2010, six months after the first survey. On neither survey did plaintiff Samantha Riggans state any objection to the contract process; however, the plaintiffs were not aware of the arbitration provision upon completing the surveys.

On December 3,2014, the plaintiffs filed the complaint in which they allege breach of implied and express warranty claims against the defendants. On December 17,2014, the plaintiffs then filed a petition for injunctive relief pursuant to Pa.R.Civ.P. 1531 (hereinafter, the “petition”). In the petition, the plaintiffs requested this court issue a rule to show cause why the defendant should not be enjoined from proceeding with arbitration and schedule a hearing on the rule. On December 29, 2014, the defendant filed preliminary objections to the plaintiffs’ complaint in the nature of a motion to compel, in which the defendant argues that the arbitration provision within the agreement is valid and binding upon all parties. As a result, the defendant requests this court to compel the plaintiffs to pursue their claims through the arbitration process as provided in the agreement. The court held a hearing on the petition and argument on the preliminary objections on January 22, 2015 and the testimony of that hearing is summarized above. As both parties’ petitions involve the same issues, the court will decide them contemporaneously.

The instant issue is one of contract interpretation. “The fundamental rule in construing a contract is to ascertain and give effect to the intention of the parties.” Sun Co., (R&M) v. Pennsylvania Turnpike Com’n. 708 A.2d 875, 878 (Pa. Cmwlth. 1998). If the contract language is clear and unambiguous, the intention of the parties is ascertainable from the contract itself. Id. “A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Id. If the court finds that an ambiguity exists, the contract must be construed against the drafter and in favor of the other party’s interpretation, if reasonable. Id. The reasonableness of the terms of the contract is not appropriate for judicial review. One is assumed to understand the terms of the contract into which he is entering and those terms “must be regarded as binding without regard to whether the terms were fully understood by the [party]. Ignorantia non excusatP Simeone v. Simeone, 581 A.2d 168 (Pa. 1990). As stated by the Supreme Court of Pennsylvania in Bollinger v. Central Pennsylvania Quarry Stripping & Construction Co., 229 A.2d 741, 742 (Pa. 1967), “Once a person enters into a written agreement he builds around himself a stone wall, from which he cannot escape by merely asserting he had not understood what he was signing.” “In the absence of proof of fraud, failure to read the contract is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.” Standard Venetian Blind Co. v. American Empire Insurance Co., 469 A.2d 563, 566 (Pa. 1983) (citations, internal quotation marks and brackets omitted).

Although these traditional contract principals dictate how to analyze a contract dispute, the court must also consider the federal policy, which favors arbitration agreements. Gaffer Insurance Co. v. Discover Reinsurance Co., 936 A.2d 1109, 1114 n. 7 (Pa. Super. 2007). When a party to a contract seeks to invalidate an arbitration clause, as the plaintiffs do here, the court must determine “(1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision.” Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). Lastly, the court notes that it is the burden of the moving party to demonstrate that a valid agreement to arbitrate existed between the parties and that the dispute is within the scope of the arbitration provision. 42 Pa.C.SA. § 7304(a).

In the instant case, paragraph twenty (20) of the agreement states, in pertinent part, as follows:

*****NOTICE T0 BUYer*****
READ CAREFULLY
This agreement provides that all disputes between you and Wayne Homes will be resolved by BINDING ARBITRATION. THIS MEANS THAT YOU AND WAYNE HOMES EACH GIVE UP THE RIGHT TO GO TO COURT to assert or defend rights under this agreement. Your rights and Wayne Homes’ rights will be determined by a neutral arbitrator and not by a judge and jury. The arbitration procedures are SIMPLER AND MORE LIMITED THAN THE RULES FOLLOWED IN A COURT. Arbitrator decisions are as enforceable as any court judgement [sic] but are subject to VERY LIMITED REVIEW BY A COURT. The scope of this provision is broad and requires arbitration of all claims including, for example, claims of misrepresentation or fraud in the inducement or for personal injury or seeking equitable remedies.

See complaint, Exhibit A (emphasis in original). This paragraph contains the names of the contracting parties, namely “you” and “Wayne Homes.” Also in paragraph twenty, below the notice, the agreement provides an explanation of the arbitration process. The agreement states in pertinent part, “[I]n the event that any dispute arises... whether such claim is based in contract or negligence or other tort theory of law or based upon any consumer protection or other law or statute, all such disputes shall be submitted to binding arbitration under the construction industry rules (as of the date of filing) of the American Arbitration Association (AAA)[.]” Complaint, Exhibit A. The paragraph goes on to explain that the arbitrators shall have experience in construction of single family homes, determine the “arbitrability” of a dispute, and will use the contract documents and limited warranties, or Residential Construction Performance Guidelines of the National Homebuilders Association as the standard for their decision. The paragraph also advises that if a party fails to bring a claim in arbitration that existed at the time arbitration was initiated, that claim would be waived. This paragraph also explains that the buyers and Wayne Homes agree to share the cost of filing fees, administrative fees, and fees required by the arbitrators. Finally, the paragraph informs the parties that if a party uses litigation to enforce the arbitration provision, the court will award such party its court costs and reasonable attorneys’ fees.

On page eight of nine of the agreement, both plaintiffs’ signatures appear as well as the signature of an officer of the defendant. The plaintiffs’ signatures are dated February 13, 2010, and the defendant’s officer’s signature is dated March 4, 2010. Although the parties did not sign the agreement on the same date, having both parties’ signature appear provides indicia of mutual assent. Further, there is no evidence of fraud. The court is satisfied that a valid agreement to arbitrate exists. “One who is about to sign a contract has a duty to read that contract first.” Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174 (E.D. Pa. 1990), aff’d 944 F.2d 898 (3d Cir. 1991). Both plaintiffs testified that they were excited to build their house and that this was a significant decision, but did not attempt to read the documents placed in front of them or to ask for time to review them. They had a duty to read the contract, and their failure to do so will not excuse their ignorance of its provisions.

Next, the plaintiffs argue that the agreement constitutes a contract of adhesion because they could not negotiate with the defendant and had no choice but to sign it. “An adhesion contract is a standard-form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who adheres to the contract with little choice about the terms.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1190 (Pa. 2010) (quotations, citations, and internal quotation marks omitted). Upon a review of the evidence, the court agrees that the agreement is indeed a contract of adhesion. The plaintiffs could either have signed the agreement or not signed. The agreement was a standard form contract, and Williams did not have the authority to accept an agreement with a change to its terms. This does not end the inquiry. Although the agreement is one of adhesion, this does not automatically render it to be unconscionable.

“Once a contract is deemed to be one of adhesion, its terms must be analyzed to determine whether the contract as a whole, or specific provisions of it are unconscionable.” Todd Heller, Inc. v. UPS, 754 A.2d 680, 700 (Pa. Super. 2000). “[A] contract or term is unconscionable, and therefore voidable, where there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Bayne v. Smith, 965 A.2d 265, 267 (Pa. Super. 2009) (referencing Restatement (Second) of Contracts § 208 (1981)). It is for the court to determine whether a contract or a provision is unconscionable. Id. Courts will not hold a contract to be unconscionable merely because of a disparity in bargaining power. See Denlinger Inc. v. Dendler, 608 A.2d 1061, 1067 (Pa. Super. 1992).

An unconscionable contract is, “1) that the contractual terms are unreasonably favorable to the drafter and 2) that there is no meaningful choice on the part of the other party regarding the acceptance of the provisions.” H&R Block Easter Tax Services v. Zarilla, 69 A.3d 246, 250 (Pa. Super. 2013). First, the court notes that the plaintiffs are not wholly ignorant consumers. Although plaintiff John E. Riggans, III, has only a high school level education, in his profession he regularly reads manuals to use machinery properly. Plaintiff Samantha Riggans is a registered nurse who is employed through Jameson Hospital. She acknowledged the importance of maintaining written records. And the plaintiffs understood that they were signing an agreement for the construction of their home. The court can infer that the plaintiffs understood the importance of the documents they were signing. There is no evidence that the plaintiffs discussed, challenged, or negotiated the agreement or any provision of the agreement. Although Williams testified that she was not authorized to close a deal with potential buyers who object to a term of the contract, she also testified that there was a procedure through which a contract could be approved by management with alternate terms. Additionally, the plaintiffs were free to walk away and not sign the agreement and to pursue a different company for the construction of their home. In fact, the plaintiffs intended to visit another company and decided not to revisit the office when they discovered the office was closed. Based upon these facts, the plaintiffs cannot establish that they did not have a meaningful choice on the acceptance of the agreement’s provisions.

Additionally, the arbitration provision does not unfairly favor the drafter. The arbitration provision mandates that each party is bound by it. If the parties cannot agree on a location, the arbitrator will decide the location. The parties can attempt to settle their disputes without waiving arbitration. The parties will share the costs of arbitration, and if any rule requires the defendant to pay more than half the fees, it will do so. Additionally, the arbitration process will be controlled by the American Arbitration Association, or similar arbitration company. And, as the arbitration process has commenced in this case, the arbitration proceeding is occurring in Lawrence County, where the plaintiffs live.

Plaintiffs maintain that the language in the arbitration provision requires that all claims with regard to the structure of the home be brought at one time and any subsequent arbitration will be barred. Although this is not an absurd interpretation, the court disagrees with the plaintiffs’ reading of the arbitration clause. A plain reading of the arbitration provision provides that all claims must be brought through the arbitration process; however, if a claim arises after the initial arbitration proceeding, the party would have to initiate additional arbitration proceedings. The defendant concedes this interpretation. Additionally, the plaintiffs stress that the imposition of the costs of arbitration is unduly favorable to the defendant. The court does not agree. Although the fees may be high, they do not seem excessive in light of the costs of litigation. Based upon these facts, the court finds that the agreement is not unconscionable and a valid arbitration provision exists.

Lastly, prior to compelling arbitration, the court must determine whether the dispute involved is within the scope of the arbitration provision. As stated above, the plaintiffs claims are based upon breaches of contract and warranty with regard to the construction of their homes. The arbitration provision explicitly includes these claims.

As a result, the disputes are within the scope of the arbitration provision. Based upon the foregoing, the plaintiffs are required to resolve their disputes with the defendant through the arbitration process. The plaintiffs’ petition for injunctive relief is hereby denied. The defendant’s preliminary objections are hereby sustained.

ORDER OF COURT

And now, this 18th day of March, 2015, this case being before the court on January 22, 2015 for a hearing on the petition for injunctive relief filed by the plaintiffs and oral argument on preliminary objections filed by the defendant’s regarding, with Daniel I. Herman Esquire, appearing and representing the plaintiffs and Jeffrey M. Olszewski, Esquire, appearing and representing the defendant, and after a complete and thorough review of the applicable record, the court hereby orders and decrees as follows:

1. The plaintiffs’ petition for injunctive relief is hereby denied pursuant to the attached opinion.

2. The defendant’s preliminary objections are hereby sustained pursuant to the attached opinion.

3. The plaintiffs are hereby ordered to submit to arbitration for the adjudication of their claims against the defendant, as provided in the February 13, 2010, agreement.

4. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.

      . Plaintiff Samantha Riggans testified that that they were to get married on August 24,2010, while John E. Riggans, III, testified that the date was September 24,2010.


author: WRIGHT-PADILLA, J.,

text:
    US Bank NA v. United Hands Community Land Trust

      C.P. of Philadelphia County,
    June Term 2013,
    No. 0197; 2237 CD 2014

      Jonathan H. Stanwood, for appellant.

      Daniel Ryan Dahl and Pamela Harris-Williams, for appellees.
    Feb. 19, 2015
   WRIGHT-PADILLA, J.,

Appellant, Wesley Cascone, appeals from this court’s order denying his motion to set aside sheriff’s sale.

FACTUAL AND PROCEDURAL HISTORY

This case commenced May 31,2013, with the filing of the US Bank National Association, as Trustee’s (“appellee”) tax claim seeking to sell the premises of 2021 East Susquehanna Avenue, Philadelphia, Pennsylvania, free and clear of all liens and encumbrances due to delinquent real estate taxes, pursuant to the Municipal Claim and Tax Lien Act, 53 P.S. § 7101, et seq. See Tax Claim — Petition and Rule, ¶1-11. Said petition sought taxes due and owing beginning for the year 1996 in the amount of $1,314.33. See Exhibit A, Tax Claim — Petition and Rule. At the time of the petition, the record owner was United Hands Community Land Trust,, by deed dated December 15, 1989. See Tax Claim — Petition and Rule, ¶1-11.

On October 4, 2013, appellee filed its affidavit of service upon United Hands Community Land Trust, on September 3, 2013, by posting the premises at 11:39 a.m. See affidavit of service, October 4, 2013.

On October 7,2013, appellee filed its affidavit of service upon United Hands Community Land Trust, on September 20, 2013, by certified mail, return receipt requested, and by regular mail. See affidavit of service, October 7,.2013.

On October 11, 2013, this court granted the petition for rule to show cause and entered judgment in favor of the petitioner in the amount of $1,595.48. See order and decree, October 11,2013. Said order allowed the execution to proceed to sheriff’s sale.

On January 24, 2014, appellee filed its affidavit of service of notice of sale by first class regular mail on January 23, 2014.

On February 20,2014, the property was sold at sheriffs sale to VRTX for $49,000.00. See motion to set aside sheriff’s sale, ¶ 17.

On March 24, 2014, VRTX paid the full purchase price to the sheriff’s department. See motion to set aside sheriff’s sale, ¶ 18.

On July 18, 2014, appellant filed the instant motion to set aside sheriff sale. In the motion, he averred that he has resided at 2020 East Susquehanna Avenue since March, 2007. He owns six other lots and buildings on the block. Appellant also averred that he “maintained possession and control” of the subject property since moving into the neighborhood. On August 19, 2013, appellant filed an action to quiet title to the subject property against United Hands Community Land Trust and all claiming title from it, based on adverse possession. Appellant averred that he also filed a lis pendens on that docket on August 19, 2013. Appellant filed a praecipe for default judgment on March 24, 2014. On May 30, 2014, a deed granting title was issued and recorded on June 3, 2014.

On August 11, 2014, appellee filed an answer in opposition to appellant’s motion, averring that appellant was not served as he failed to properly record his interest with the recorder of deeds pursuant to 53 P.S. § 7193.1, and thus did not have standing to contest the sale. The petition further averred that appellant had been put on constructive notice due to the posting of the property. As a new matter, appellee’s answer averred that the tax information certificate was properly prepared and named all parties with recorded interests in the subject property, and that service had been properly made in accord with said certificate. Additionally, appellee averred that the subject property was posted with notice of the February 20, 2014 sale, and that the sale was advertised by publication. See answer in opposition to motion to set aside.

On October 2, 2014, this court issued a rule to show cause why the requested relief should not be granted.

On October 28, 2014, this court heard argument and evidence on the merits of the case. Appellant argued that the property had not been posted and he had not been adequately served with notice of the sale. N. T. at 13, 63-64. Appellee argued that appellant’s lis pendens and interest had not been indexed or properly recorded with the recorder of deeds and thus he had no standing to contest the sale. N. T. at 16. 65-66. Keith Muhammed, sergeant Bryan Teuber, and Joseph Giglo testified for appellee; appellant, Evelyn Velez, and Kristen Flanagan testified for appellant.

Keith Muhammed (“Muhammed”) testified that he is a process server who posted the property located at 2021 East Susquehanna Avenue with notice of the sale on September 3, 2013. N. T. at 21-23. Muhammed could not recall exactly where he posted the property, but that he had signed the affidavit truthfully and accurately. N. T. at 22-23. Muhammed testified that when a property is fenced, or covered in debris, he finds “the best place” on the fence to affix the packet, and that he uses duct tape. N. T. at 28.

Sergeant Bryan Teuber of the Philadelphia Sheriff’s Office testified that on December 12, 2013, at 8:05 a.m., he posted the subject property with notice of the sheriff’s sale. N. T. at 58-60. He did not recall specifically posting the property, however, to the best of his knowledge, information, and belief he had posted the property per the affidavit. N. T. at 60-62.

Joseph Giglio (“Giglio”) testified that he has been a title clerk for over twenty (20) years. N. T. at 52. He testified that the docket in appellant’s case did not have the line of information stating that a lis pendens had been filed. N. T. at 55-56.

Appellant testified that he lives at 2020 East Susquehanna Avenue, and that he recalled September 3, 2013 because his son moved in with him on that day. N. T. at 30-31. From 9:30 a.m. until approximately 11:30 a.m. he and his son unpacked the car. N. T. at 31. He did not observe anyone posting the property or see a posting on the property at that time. N. T. at 31-32.

Evelyn Velez (“Velez”) testified that she resides at 2031 East Susquehanna Avenue. N. T. at 37-38. Velez stated she is often outside feeding stray cats on the block. N. T. at 38-39. She feeds the cats at least four times a day, at 7:30 a.m., 12:30 p.m., 3:00 p.m. and occasionally at 6:00 p.m. N. T. at 39. She did not recall seeing anything posted on the property on September 3, 2013. N. T. at 39-40.

Kristen Flanagan (“Flanagan”), appellant’s girlfriend, testified that she lived with appellant in September, 2013. N. T. at 41-42. She testified that she helped appellant’s son move into the house, as appellant had left for work in the morning. N. T. at 42-43. She did not see the property posted on that day or hear any noise from her dogs, who ran in the vacant lot. N. T. at 44.

On October 29, 2014, this court denied appellant’s motion to set aside.

On November 10, 2014, appellant filed a motion for reconsideration and argued that, following the October 28, 2014 hearing, appellant’s counsel contacted the prothonotary’s office to determine why the lis pendens did not appear of record and “determined...that the lis pendens had in fact been filed correctly...but the prothonotary incorrectly processed the filing and indexing of it at the time the matter had been initiated.” See motion for reconsideration, ¶ 1 — 12.

On November 13, 2014, this court denied appellant’s motion for reconsideration.

On November 26, 2014, appellant filed a timely notice of appeal to the Commonwealth Court of Pennsylvania.

On December 3, 2014, this court issued its order pursuant to Pa. RAP. 1925(b), directing appellant to file his concise statement of matters complained of on appeal within twenty-one (21) days.

On December 24, 2014, appellant filed his concise statement of matters complained of on appeal, arguing that this court committed an abuse of discretion and error of law when it found that service of the petition for rule to show cause was properly made, and when it found that appellant did not have standing to request that the February 20, 2014 tax sale be set aside.

DISCUSSION

Appellant challenges this court’s denial of his petition to set aside sheriff’s sale.

“Upon petition of any party in interest before delivery of the personal property or of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.” Pa.R.C.P. 3132; Allegheny Cnty. v. Golf Resort, Inc., 974 A.2d 1242, 1245 (Pa. Commw. Ct. 2009). Equitable considerations govern; thus review is limited to a determination of whether the trial court committed an error of law or abused its discretion. Golf Resort, Inc., 974 A.2d at 1245. The burden of proving circumstances warranting the exercise of the court’s equitable powers is on the applicant; the application may be refused due to “the insufficiency of proof to support the material allegation of the application, which are generally required to be established by clear evidence.” Golf Resort, Inc., 974 A.2d at 1245.

I. TIMELINESS OF PETITION

As a matter of first note, the issue of whether or not appellants’ petition is timely is unclear. Per 53 Pa. C.S. § 7193.3, all parties wishing to contest the validity of sales conducted under 53 P.S. § 7283 of the act, including sufficiency of the notice, must file a petition within three (3) months of the acknowledgement of the deed to the premises by the sheriff.

In the instant matter, the third party-bidder settled with the sheriff’s department on March 20, 2014; appellant’s petition was filed July 18, 2014, more than three (3) months after that date. It is unclear from the pleadings, however, whether the deed was acknowledged on this date or, indeed, if the deed was acknowledged.

Consequently, the parties have not provided sufficient information to determine the timeliness of the petition.

II. STANDING

Appellant argues that this court committed an abuse of discretion and an error of law when it found that he did not have standing to contest the February 20, 2014 tax sale of the property. Per 53 P.S. § 7193.1(a), any person having a lien, claim, or interest upon real property shall register a notice of interest with the department of the city of the first class responsible for collection of tax and municipal claims stating his name, residence and mailing address and a description of the real property in which the person has an interest.

In the instant case the record contains a tax information certificate prepared by appellee which lists all parties with registered notice of interests in the subject property; appellant’s name does not appear properly recorded.

Finally, per 53 Pa. C.S. § 7193.2(b), “no party whose interest did not appear on a title search, title insurance policy or tax information certificate or who failed to accurately register his interest and address pursuant to Section 39.1 of this act shall have standing to complain of improper notice if the city shall have complied with subsection (a) of this section.” As will be discussed further below, based upon the above evidence provided, this court properly found that appellee had complied with the notice requirements of 53 Pa. C.S. § 7193.2(a); and, as appellant’s interest had not been recorded, properly found that he had no standing to contest the sale.

Appellant argues that because he had filed a lis pendens, he had an interest in the property. At the hearing, as discussed above, there was some debate as to whether appellant had properly indexed the lis pendens. Even if he had, however, the only effect of the lis pendens would have been to provide notice to appellee that appellant had filed his action in quiet title. The Pennsylvania Courts have held that the effect of a lis pendens is not to establish an actual lien, but to give notice to third persons that the real estate is subject to litigation and any interest that may be acquired in the real estate will be subject to the result of the action. Psaki v. Ferrari, 377 Pa. Super. 1, 3, 546 A.2d 1127, 1128 (1988); see also Dice v. Bender, 383 Pa. 94, 97, 117 A.2d 725, 726-727 (1955).

Consequently, appellant did not have standing to contest the sale and this court committed neither an abuse of discretion nor an error of law.

III. NOTICE

Finally, appellant avers that this court erred in finding that service of the petition for rule to show cause was proper. Per 53 Pa. C.S. § 7193.2, in cities of the first class such as Philadelphia, service of the petition made be made by: posting a copy of the petition on the most public part of the property; by mailing by first class mail to the address registered by any interested party; by reviewing the tax information certificate that identifies interested parties of record and mail the petition to them by first class mail and by certified mail, return receipt requested. Service of notice shall be deemed accomplished the date of mailing, and the petitioner shall file an affidavit of such service prior to seeking a decree ordering the sale of the premises. 53 Pa. C.S. § 7193.2(a)(l)-(3). The burden is placed upon the claimant to show that they have satisfied the MCTLA’s requirements. City of Philadelphia v. Manu, 76 A.3d 601, 604 (Pa. Cmwlth. Ct. 2013) (citing In re Somerset Cnty. Tax Sale of Real Estate in the Name of Tub Mill Farms. Inc., 14 A.3d 180, 183 (Pa. Cmwlth. Ct. 2010)).

In the instant case, appellee filed its affidavit of service on October 4, 2013, averring that on September 3, 2013, it posted the premises at 11:39 a.m. Additionally, Keith Muhammed testified under oath that he posted the property on September 3, 2013. N. T. at 28. On October 7, 2013, appellee filed its affidavit of service stating that it served notice by certified mail, return receipt requested, and by regular mail, to all interested parties. Further, sergeant Bryan Teuber of the Philadelphia Sheriff’s Office testified that on December 12, 2013, at 8:05 a.m., he posted the subject property with notice of the sheriffs sale. N. T. at 58-60. The sale was also advertised by publication.

Finally, per 53 Pa. C.S. § 7193.2(b), “no party whose interest did not appear on a title search, title insurance policy or tax information certificate or who failed to accurately register his interest and address pursuant to section 39.1 of this act shall have standing to complain of improper notice if the city shall have complied with subsection (a) of this section.” Based upon the above evidence provided, this court properly found that appellee had complied with the notice requirements of 53 Pa. C.S. §7193.2(a); and, as appellant had no interest in the property, he lacked standing to contest the adequacy of notice provided.

CONCLUSION

For all of the reasons stated above, this court’s decision should be affirmed and appellant’s appeal denied.

      . Per appellee’s petition, the Philadelphia Authority for Industrial Development (PAID) is a public instrumentality of the Commonwealth of Pennsylvania. By Special Ordinance No. 970168 of June 1997, the City sold a portfolio of delinquent real estate tax liens to PAID, empowering it to recover those taxes, with the City and School District taking the positions of subordinate note holders pursuant to that agreement. See Tax Claim — Petition and Rule, ¶1.

      . Cascone v. United Hands Community Land Trust, August Term 2013, No. 1787.

      . Appellee’s action was commenced May 31, 2013, two months and thirteen days before appellant’s action to quiet title was filed. Both actions proceeded parallel to each other; appellant’s action to quiet title did not mention the tax action and, at the time that appellee’s action was filed, there was no action to quiet title and no lis pendens indexed of record.

      . However, the property had already been sold at sheriff’s sale on February 20, 2014; appellant’s deed was a legal nullity. He claimed title under United Hands Community Land Trust, however, all interest of United Hands extinguished following the sale. See 53 Pa. C.S. § 7281; the purchaser at a sheriff’s sale “takes absolute title to the property sold, free, and discharged of all tax and municipal claims, liens, mortgages, charges, and estates of whatsoever kind, subject only to the right of redemption as provided by law.”

      . Appellant’s petition states only the date that the foil purchase price was paid; appellee’s response states that “The third party bidder settled ... on or about March 24, 2014. It is unclear when and [sic] the sheriff’s deed was acknowledged. It is likely the sheriff’s deed was acknowledged the same day.” See answer in opposition to motion to set aside, ¶¶ 21-23.


author: WILLIAMSON, J.,

text:
    Zaleski v. Donegal Insurance Group

      C.P. of Monroe County,
    No. 9814 CIVIL 2014

      Weislaw T. Niemoczynski, for plaintiffs.

      Robert E. Smith, for defendants.
    Feb. 6, 2015
   WILLIAMSON, J.,

This matter pending before the court is a petition for approval of settlement of wrongful death and survival claim. The decedent, Thomas Zaleski, died as a result of a head-on automobile collision on December 1, 2010. An estate was raised and the decedent’s daughter, Tara Marie Zaleski was appointed administratrix of the intestate estate. The liability insurance carrier for the driver who caused the collision tendered policy limits, which were deemed inadequate for the loss suffered. The estate filed a writ of summons for wrongful death and survival against Donegal Mutual Insurance Company for underinsured motorist benefits. The parties reached an agreement to settle for the global sum of $157,500, prior to a complaint being filed or any further litigation.

At a hearing held January 30, 2015 on the petitioner’s request, the petitioner noted that they contacted the Pennsylvania Department of Revenue to obtain consent to a proposed apportionment of the settlement proceeds with 100% allocated to the wrongful death claim and 0% to the survival claim. The petitioner argued that the decedent suffered a near instantaneous death with little to no conscious pain and suffering. The petitioner also asserted that as a result, the survival action is a doubtful claim, and need not be litigated. The petitioner also presented a report by the Center for Forensic Economic Studies in support of the petitioner’s claim that costs to pursue a survival claim that might exist above the compensation for the wrongful death action would be almost as much as the hoped for recovery for the survival action.

The Pennsylvania Department of Revenue was served notice of the petition and hearing date; however, they chose not to attend the hearing. In Monroe County, the court traditionally has only scheduled a hearing in wrongful death and survival actions when an interested party contests, or where the department of revenue is not in agreement with the proposed allocation. A hearing was scheduled in this case at the petitioner’s request. Although the department of revenue chose not to attend the hearing, they did send petitioner a letter, received the day before the hearing, that it would only agree to a 50% — 50% allocation of the settlement proceeds between wrongful death and survival claims. The department of revenue noted in their letter, admitted into evidence as petitioner’s Exhibit 1, that the beneficiaries of the estate are adult children, not dependent upon the decedent, and therefore suffered limited pecuniary (financial) loss.

We note this is a similar response by the department of revenue as cited by the Honorable Terrance R. Nealon of Lackawanna County in Galletti v. Taylor Longterm Care Centers, Inc., et al, No. 2008-CIV-3740 (Lack. Cty. May 5, 2011, Nealon, J.). In that case, the department of revenue disputed an 85%-15% allocation between wrongful death and survival action. Instead, the department of revenue wanted a 50-50 allocation. Judge Nealon noted that the department of revenue also only objected in writing, and failed to attend the hearing scheduled following notice to the department. In that case, the department cited as a basis for the objection that the beneficiary did not suffer any pecuniary loss. Judge Nealon eventually awarded the allocation of 85-15 between wrongful death and survival as the beneficiary had pecuniary loss and therefore was limited damages under the survival action.

The importance of this issue is related to taxation of proceeds. In a wrongful death and survival action, the wrongful death proceeds are not part of the estate and are not subject to Pennsylvania Inheritance Tax. Survival action proceeds are considered part of the estate, and therefore, subject to Pennsylvania Inheritance Tax on the proceeds passing to beneficiaries. This treatment of proceeds for purposes of taxation is equally important to the estate and survivors, as well as the department of revenue. One would think it would be important enough for the department of revenue to attend a hearing in the matter, or at least file a formal objection. The department did not take either action in this case.

Damages in a wrongful death action are to compensate the surviving spouse, children or parents for hospital/ medical/burial expenses, loss of contributions from the decedent, and loss of service as a mother or father to children. Damages in a survival action are designed to compensate the decedent’s estate for losses suffered by the decedent himself, including conscious pain and suffering and wage loss.

In this case, the petitioner provided convincing evidence that the decedent suffered little conscious pain and suffering as the decedent’s death was nearly instantaneous to the accident. We note that there is some economic loss for future net earnings that would be attributable to the survival action. See Petitioner’s Exhibit 2. However, such loss does not warrant a 50-50 allocation as the department of revenue notes in their letter. There were hospital, medical and burial expenses. Although decedent’s children are adults, they did lose a relatively young father (age 58). Petitioner also testified convincingly to the loss of the decedent’s services and guidance. This included being a doting father who worked on their vehicles (he was a mechanic) and visited with them regularly.

In light of the minimal pain and suffering incurred by the decedent, combined with the credible testimony of the petitioner, and the lack of formal objection or appearance by the department of revenue, we will approve an allocation of the proceeds at 85% to the wrongful death action and 15% to a survival action. We make this finding as there was some economic loss to the estate due to the decedent’s death from his future wage loss. While the petitioner makes a strong argument for no cognizable claim for the survival action, or at least a questionable and/or not very fruitful recovery, we find there is some loss attributable thereto. Furthermore, to ignore a proposed survival action, or to allow a withdrawal of such a claim, would require the court to ignore the basis upon which settlement was reached, including the economic report prepared for purposes of litigation. Therefore, we cannot grant the petitioner’s request for 100% to wrongful death; but we find 85% to be appropriate under the circumstances.

ORDER

And now, this 6th day of February, 2015, following a hearing on the petition for approval of settlement of doubtful survival claim, it is ordered and decreed as follows:

Tarra Marie Zaleski, as administratrix of the estate of Thomas J. Zaleski, is authorized to compromise all claims against Donegal Mutual Insurance Company for the sum of $157,500.00 in exchange for a release of all claims against Donegal Mutual Insurance Company to be allocated 85% to the wrongful death claim and 15% to the survival claim.

The attorney’s fee of 33 1/3% of the gross recovery agreed to by the estate is hereby approved and shall be charged against the wrongful death and survival actions in the same 85-15 split. Costs of litigation shall be apportioned in the same manner.

Petitioner (plaintiff in the underlying suit) shall file a discontinuance of the case upon payment of the settlement reached with Donegal Mutual Insurance Company.