text:
    Pennsylvania Waste Industries Association v. Monroe County Municipal Waste Management Authority

      C.R of Monroe County,
    No. 6877 CIVIL 2012.

      George Westervelt and Maryanne Starr Garber, for plaintiff

      John B. Dunn, for defendant.
    January 11, 2013
   WILLIAMSON, J.,

This opinion shall supplement the order entered December 13, 2012, which denied Pennsylvania Waste Industries Association’s (“PWIA”) request for Declaratory Relief declaring that the Request for Proposals (“RFP”) of the Monroe County Municipal Waste Management Authority (“authority”), is preempted by Act 101, Act 90, and/or that it is ultra vires of any enabling legislation, Specifically, PWIA sought relief declaring that the authority could not impose a tipping fee as sought in the RFP and resulting purchase agreement.

The authority is in the process of preparing a major management plan revision for a new ten (10) year planning period for collection and disposal of municipal solid waste as required by the Municipal Waste Planning and Recycling Act of 1988, 53 P.S. Section 4000.101 et. seq. (Act 101). That ten (10) year planning period begins in 2015. As part of that planning process, the authority is soliciting bids for the purchase of waste disposal capacity for all municipal solid waste generated in Monroe County for the next ten (10) year planning period. The bids are solicited through a request for proposal process. The RFP specifically requests proposals from landfills, incinerators, or waste transfer stations (“facility”) for the authority to purchase guaranteed disposal capacity by way of “air space” or “through-put capacity”. This is essentially the purchase of available space for disposal of the county’s solid waste for the term of the contract. The waste capacity, or “air space”, would be dedicated for the use of municipal solid waste generated in Monroe County for the term of the contract to assure a guarantee of disposal capacity. The authority would then charge waste haulers a per ton fee for waste disposal at the contracted waste disposal facility for the air space owned by the authority. The fees would cover the contract price per ton the facility charges to the authority and the authority’s reasonable costs. The fee could be charged by the facility and remitted to the authority after the facility deducts its contracted portion, or collected in full by the authority.

The authority cites the Municipality Authorities Act of 1945 (as amended), 53 Pa. C.S.A. §5601 (“MAA”) as specifically authorizing these undertakings. The authority states it will acquire property rights and charge reasonable fees for the use of such property rights. The authority states such action is authorized under the MAA.

PWIA is a private trade association of private landfill owners and operators doing business in Pennsylvania. PWIA asserts that the RFP and proposed tipping fee thereunder, is preempted by Act 101, and at odds with two (2) prior cases, IESI Bethlehem Landfill vs. City of Lehigh, 887 A.2d 1289 (Pa. Cmwlth. 2005) and PA Independent Waste Haulers Ass’n. vs. City of Northumberland, 885 A.2d 1106 (Pa. Cmwlth. 2005). Specifically, PWIA cites the two (2) Commonwealth Court cases as legal precedent that counties or their delegated municipal authorities are preempted under Act 101 from charging administrative fees. PWIA states that to enact consistency statewide, with regard to fees charged for municipal solid waste disposal, Act 101 prevents municipalities from charging fees on waste disposal that goes toward recycling programs or to subsidize other municipal expenses. Instead, the legislature set a fee schedule in which a recycling fee is added to costs of disposal of all municipal solid waste in Pennsylvania that is remitted by the disposal facility to the Commonwealth for eventual distribution back to counties that meet certain guidelines. PWIA argues that no other fees for recycling programs, or any other expenses, can be charged by counties or authorities on their waste disposal contracts.

PWIA brings this action pursuant to the Declaratory Judgment Act of 42 Pa. C.S.A. 7531 and Pa.R.C.P. 1601, et seq. It seeks a determination that the authority is preempted from charging a tipping fee, and that it is barred from considering a facility’s willingness to collect and remit a tipping fee in order to be a “designated facility”. In the alternative, PWIA requests a determination that the authority is without legal basis to charge a tipping fee, or to only contract with a facility that will collect and remit the tipping fee.

The authority, unlike a county or a municipality, is governed by the MAA, as a separate and distinct political subdivision. Under section 5607 (d) (7) of the MAA, a municipal authority is authorized to provide “[f]acilities and equipment for the collection, removal, or disposal of ashes, garbage, rubbish and other refuse materials by incineration, landfill, or other methods.” 53 Pa. C.S.A. § 5607 (a)(7). Section 5607 (d)(9) grants the power to a municipal authority to charge reasonable rates and other charges to cover its expenses for the construction, improvement, repair, maintenance and operation of its facilities, properties and programs, and to recover the expenses of providing administrative services. 53 Pa. C.S.A. §5607 (d)(i). Section 5607 (d)(13) empowers an authority “[t]o make contracts of every name and nature and to execute all instruments necessary or convenient for the carrying out of its business.” 53 Pa. C.S.A. § 5607 (d) (13). Finally, section 5615 (a) states an authority, “shall have the power to acquire by purchase or eminent domain proceedings either the fee or the rights, title, interest or easement in such lands, water, and water rights as the authority deems necessary for any purpose of this chapter.” 53 Pa. C.S.A. §5615 (a).

Here, the authority seeks guaranteed space to dispose of municipal solid waste, and to charge reasonable fees to cover its expenses, by soliciting anRFP to acquire airspace. The authority wants to acquire certain rights to land, by purchasing airspace above the land, at a waste disposal facility. The proposed RFP states the authority would retain rights to the air space, which could presumably be sold back to the facility if not used. This court finds that the purchase of the airspace is an interest in land that the authority seeks to acquire, under 53 Pa. C.S.A. §5607(a) (7), 5607 (d)(4) and 5615 (a).

The authority also seeks to enter into contracts to conduct its business, which the Act allows. See 53 Pa. C.S.A. §5607 (d) (13). Finally, the fees charged are for covering expenses allowed by the Act. See 53 Pa. C.S.A. 5607 (d) (9). Although it is a novel approach to contract for air space in landfills, by actually acquiring rights to land itself, and to charge a fee to cover that cost of space and expenses of the authority, it is not for this court to determine if anyone will actually contract with the authority as proposed. However, the RFP conforms to the powers authorized under the MAA.

PWIA asserts in its request for declaratory relief, that the RFP requires fees to be paid to the authority that are for recycling programs or other expenses of the authority. The PWIA contends the RFP contains a cost collection method by the authority that also covers recycling costs of the Authority. PWIA also admits the cost collection method will pay operating costs and debt service of the authority. As a result, PWIA contends the RFP violates Act 101 and the holdings of the IESI Bethlement Landfill and Pennsylvania Independent Waste Haulers Assn. cases, in part, because recycling fees will be charged by the authority. This is not supported by the evidence presented at trial.

The fees to be charged by the authority under the RFP are for the authority’s Integrated Waste Management System which they propose in their next ten (10) year plan. There is no language in the RFP to suggest fees charged by the authority will be utilized to fund the authority’s recycling programs. Other than a listing of the services the authority provides in the summary section of the RFP, which includes recycling programs, there is no mention of the fees to be charged going to fund the authority’s recycling program. The RFP sets forth the billing and operating costs method sought by the authority, and there is no specific fee for recycling programs. The Commonwealth Court in IESI Bethlehem Landfill and the Pennsylvania Independent Waste Haulers Assn, specifically addressed tipping fees charged directly for, or used in part, for recycling programs as being preempted by Act 101.

Our review of Act 101 shows that county governments are now mandated to establish county-wide programs for recycling and waste stream reduction. The percentage goals are currently a 35 percent reduction in waste stream. To meet this mandate and goals, counties have instituted recycling programs. Act 101 sets forth certain requirements pertaining to recycling program fees collected on solid waste disposal. The act imposes a $2 per ton fee on all solid waste processed that originates from each county. 53 Pa. C.S.A. § 4000.701. All such fees are paid to the Commonwealth and placed in a Recycling Fund. 53 Pa. C.S.A. § 4000.706. At least 70% of the fees are then expended by the Commonwealth through grants to fund recycling programs. 53 Pa. C.S.A. §4000.706 (c)(1). However, these grants do not necessarily distribute 70% of the funds collected back to the county generating the municipal solid waste. Monroe County generates about 160,000 tons of municipal solid waste per year, creating approximately $320,000 collected under Act 101 and forwarded to the Commonwealth. Monroe County only receives a fraction of this amount back in grants for their recycling programs. Per Act 101, counties must fund the difference in costs to operate recycling programs from sources other than waste disposal tipping fees.

PWIA argues that the RPP provides a disguised charge by the authority to fund its recycling programs. This was not supported by the evidence. James Lambert, executive director of the authority, testified the fees the authority will receive under the RFP will fund the Integrated Waste Management System of the authority. The authority will charge a reasonable fee to cover its administrative and operational costs for its solid waste programs. A large percentage of these costs are debt service from a failed plan to construct an authority-owned solid waste incinerator, as well as offices and land owned by the authority.

Mr. Lambert testified the authority will separate the Act 101 recycling costs from the solid waste costs, including the accounting and management functions. All recycling costs will be funded through recycling grants from the Commonwealth, and fees generated directly from the recycling programs that are paid by private users. If that cannot be done, Mr. Lambert stated the authority would stop the recycling programs or seek alternate avenues for revenue. The authority’s recycling program accepts recycling from other municipalities and private haulers, who pay for such services, and Mr. Lambert believes the program can be self-sufficient with no need to charge a separate fee or use any funds from waste disposal tipping fees to fund the recycling programs. Mr. Lambert’s testimony was credible. In any event, until such time as an issue arises where the authority is using fees collected from this RPP to fund recycling programs, the issue is not ripe for declaratory relief, because the RFP does not claim to be charging fees to fund recycling.

PWIA also asserts that the authority is preempted from generating any revenue other than as set forth in Act 101. In support thereof, PWIA cites the decision in Pennsylvania Waste Haulers Assn., supra, and IESI Bethlehem Landfill, supra. In both cases, the parties admitted the administrative fees being charged were used to fond county recycling programs. Both cases specifically addressed and held that county administrative fees imposed to help fund recycling programs were preempted by Act 101. In Pennsylvania Waste Haulers Assn., the court held that municipal powers including authorities, are preempted by Act 101 withrespect to fees for recycling programs. The case did not review whether or not Act 101 preempts fees charged to fund other solid waste operations. Likewise, the actual holding in IESI Bethlehem Landfill, mirrored the Pennsylvania Waste Haulers Assn, holding, that municipalities cannot charge administrative fees from waste disposal facilities to fund recycling programs.

The fee set forth to be collected under Act 101 is a fee for promoting recycling and is specifically enumerated as being a “recycling fee”. See 53 Pa. C.S.A. § 4000.701. The cases cited by PWIA address fees charged for recycling in excess of this fee mandated by 53 Pa. C.S.A. § 4000.701. PWIA asserts the case law and Act 101 prohibit collection of all administrative fees because Lehigh County, in the IESI Bethlehem case, charged a fee to fund their planning and recycling programs. However, the Commonwealth Court specifically held the fee collected by Lehigh County was preempted by Act 101 because the fee went to fund recycling programs. Neither of the cases cited, nor Act 101, specifically address fees charged for administrative costs of solid waste disposal. Therefore, this court cannot find that the RFP as drafted violates or is preempted by Act 101, or is contrary to the cited cases.

PWIA also argues that the proposed RFP and tipping fee violated the MAA. PWIA contends that the purchase of airspace or through-put capacity from waste disposal facilities, is not an interest in real property. This issue was already discussed in this opinion, and we find that the proposed purchase of airspace or through-put capacity does involve an interest in real property under the MAA. PWIA further argues that the authority’s proposal to maintain the right to set the fees charged to waste haulers for disposal, puts the authority in direct competition with private enterprises. PWIA asserted that the RFP would violate 53 Pa. C.S.A. § 5607 (b)(2), which places limitations on the activities of a municipal authority. However, this court was not convinced by the testimony presented that the RFP would cause the authority to unnecessarily burden or interfere with existing business as set forth in 5607 (b)(2). Witnesses for PWIA were concerned they would lock into a price with the Authority and then be unable to negotiate later with individual waste haulers to give lower rates based upon the amount of waste brought to the facility by that hauler.

However, a facility is not obligated to submit a bid under the RFP. If the bidding on the RFP is not satisfactory to the facility, they can avoid this business venture. Furthermore, the facility could submit a maximum bid under the RFP, and reserve the right to charge less than the maximum, should it so choose, thereby creating the opportunity to charge lower overall costs to a hauler in the same manner facilities do now. In any event, the purchase of airspace for disposal of solid waste would be similar to leasing or owning land and establishing a county or authority- owned landfill, incinerator, or waste transfer station, all of which are permitted. Such municipal-owned facilities would also compete with private enterprises under PWIA’s scenario.

PWIA seeks, in the alternative, a finding that the proposed RFP is ultra vires, or without any legal basis. This court has previously set forth the citation under the MAA for the authority to proceed as proposed in the RFP. The authority has the right to enter into contracts, acquire interests or rights in real property, and charge reasonable fees to pay for the authority’s expenses under 53 Pa. C.S.A. §5601 et seq. Therefore, the actions proposed by the authority in assessing a tipping fee are not ultra vires of any legal basis.

For these reasons, the court entered the order dated December 13,2012 in this matter denying PWIA’s request for declaratory relief.

      . For example, a PWIA witness testified that they currently negotiate lower or higher waste disposal fees with individual haulers dependng upon the amount of waste brought to a facility by that hauler. In other words, discounts for business from the high volume haulers. Any tipping fees to municipalities remain the same, but the facilities raise or lower their fees, since they collect the total fee charged, and remit tipping fees and Act 101 fees out of the total.


source: Caselaw Access Project

author: WILLIAMSON, J.,

license: Public Domain

text:
    O’Dell v. Wachovia Bank

      C.P. of Monroe County,
    No. 6414 CIVIL 2011.

      Christopher T. Powell, for plaintiff.

      David A. Williams, for defendant.

      January 25, 2013
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Wachovia Bank, a division of Wells Fargo Bank, N.A. (hereafter, “defendant”), requesting Linda O’Dell’s (hereafter, “plaintiff’) complaint be dismissed because plaintiff failed to establish the existence of a dangerous condition, or that defendant had notice of any dangerous condition, and plaintiff’s fall could have been avoided by the exercise of reasonable care.

Plaintiff commenced this action by filing a complaint on July 25, 2011. In her complaint, plaintiff alleges that she was a business invitee of the defendant, and that a defective condition on the floor caused her to fall and sustain injuries. Defendant filed an answer with new matter on September 8,2011. During the course of discovery, written interrogatories were exchanged and depositions were held of the plaintiff and also of defendant’s representative, Millie McAlman. On November 21,2012, defendant filed the motion for summary judgment and brief in support thereof that is currently before this court. On December 21, 2012, plaintiff filed her brief in opposition of defendant’s motion for summary judgment. Oral argument on this matter was held on January 7, 2012. We are now ready to dispose of defendant’s motion for summary judgment.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all wellpled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951).

In the case now before the court, the defendant argues that there are no genuine issues of material fact and requests that the court grant summary judgment in its favor. Defendant alleges that the plaintiff is unable to (1) prove the existence of a dangerous condition; (2) establish that the defendant had actual or constructive notice of the dangerous or unsafe condition; or (3) establish that the condition could not have been avoided, even had the plaintiff exercised reasonable diligence. We agree.

The facts of this case, as viewed in the light most favorable to the plaintiff, are as follows. On April 3,2010, plaintiff entered defendant’s bank for the first time. While at the bank, plaintiff cashed a check. As she was leaving, her left foot got caught in a rug, the rug then slipped, and caused her to fall to the floor. Plaintiff testified during a deposition that before she fell, the carpet was lying flat against the floor, and after she fell, it was bunched up, or tented. [O’Dell Deposition, 8/16/12, p.27,28.] Plaintiff also testified that the lighting was adequate. [O’Dell Deposition, 8/16/12, p.23.] Defendant’s representative, Millie McAlman, testified during her deposition that she does not know who supplied the rug, how often the floors underneath the rug were cleaned, and did not see plaintiff fall. [McAlman Deposition, 8/16/12, p.6-7.] Pictures of the rug and area in question were not taken the day of the fall. [McAlman Deposition, 8/16/12, p.ll.] However, the plaintiff agreed the pictures that were taken depicted the area as it appeared the day she fell. Finally, Ms. McAlman testified that she did not know whether anybody stepped on the carpet to see if it would move on the floor. [McAlman Deposition, 8/16/12, p.13.]

To recover in a negligence claim, the plaintiff must establish that (1) the defendant owed a clear duty to her; (2) the defendant breached its duty; (3) a causal connection exists between the defendant’s conduct and the plaintiff’s injury; and (4) the plaintiff suffered actual loss or damage. See Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264 (Pa. 2006). . In Pennsylvania, a possessor of land is liable for injuries to an invitee that occur on its property only where it:

(a) Knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee; and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and
(c) Fails to exercise reasonable care to protect them against the danger.

Restatement of Torts, 2d., § 343.

I. Dangerous Condition

The definition of dangerous condition is “a condition that involves an unreasonable risk of harm.” Steinhouse v. Herman Miller, Inc., 661 A.2d 1379, 1382 quoting Restatement of Torts, 2d., § 343(a). “[T]he presence of throw rugs upon a polished floor is not negligence. The practice of placing throw rugs upon polished floors is a general one, and only reasonable care is required of the person stepping upon such rugs to avoid falls.” Cutro v. Scranton Medical Arts Bldg., 198 A. 141, 142 (Pa. 1938). Similar reasoning applies to the present case. The plaintiff testified that the rug was not bunched or tented before she fell. [O’Dell Deposition, 8/16/12, p.30.] Ms. McAlman testified that the rug had rubber underneath it that was supposed to prevent it from slipping. [McAlman Deposition, 8/16/12, p.13.] A rug that is lying flat on the surface of a floor cannot be a condition that involves an unreasonable risk of harm. Additionally, the plaintiff did not fall until she finished her transaction and was leaving the bank. She could not state that there was a condition of the rug itself that made her fall Rather, plaintiff initially stated the rug slipped on the floor. (O’Dell Deposition). Later, in her deposition, plaintiff said her foot caught in the rug and then the rug slipped. However, plaintiff could not say how or why her foot caught, what caused the rug to slip, or the appearance of the rug before her fall. Therefore, even looking at the facts in a light most favorable to the plaintiff, the rug was not a dangerous condition.

II. Notice of the Dangerous Condition

Even if the rug was a dangerous condition, the defendant did not breach any duty to the plaintiff because it did not have notice of the condition. It is undisputed that plaintiff was a business invitee of the defendant at the time of the incident. There is no question that a store owner owes a duty of care to its invitees. However, the store owner is not an insurer of its customers’ safety. Moultrey v. Great A&P Tea Co., 422 A.2d 593 (Pa. Super. 1980). The mere existence of a harmful condition in a public place of business or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of proprietor’s duty of care to his invitees, nor does it raise a presumption of negligence. Id. at 596.

To impose liability, a plaintiff must produce evidence that the condition that caused the injury is traceable to the possessor of land or his agents and not an unassociated individual. Myers v. Penn Traffic Company, 606 A.2d 926, 930 (Pa. Super. 1992). In essence, the plaintiff must show that the defendant had actual or constructive notice of the condition. Estate of Swift v. Northeastern Hosp. of Phila., 690 A.2d 719 (Pa. Super. 1997).

Plaintiff does not argue that the defendant had no actual notice of the rug’s dangerous condition. In fact, plaintiff states in her brief, “Defendant cannot demonstrate that anybody from the bank had actually encountered the area prior to the Plaintiff’s business.” [Plaintiff’s Br. at 6.] Therefore, we will determine whether a genuine issue of material fact exists with respect to whether defendant had constructive notice of the rug’s dangerous condition.

The amount of time that a dangerous condition existed is one of the most important factors when analyzing whether a defendant had constructive notice. Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. 2001). Pennsylvania courts regularly treat a plaintiff’s failure to provide evidence of the amount of time that a dangerous condition existed as fatal to the plaintiff’s case. See Lanni v. Pa. R.R. Co., 88 A.2d 887 (Pa. 1952) (reversing the denial of defendant’s motion for judgment notwithstanding the verdict where plaintiff did not provide evidence showing how long the grease spot in which he fell had been on the driveway); Porro v. Century III Assocs., 846 A.2d 1282, 1286 (Pa. Super. 2004) (affirming summary judgment because the plaintiff “admitted in his deposition that he does not know how long the substance he slipped on was present”); Estate of Swift, supra at 722 (affirming summary judgment because the plaintiff did not present evidence regarding “how long the condition existed”).

In the present case, it is clear that the defendant did not have constructive notice of the rug’s dangerous condition. Plaintiff has not testified to, nor has she provided any evidence regarding the amount of time the rug represented a dangerous condition. In fact, plaintiff testified that the rug was not bunched up or tented in any way prior to her fall. [O’Dell Deposition, 8/16/12, p.30.] It was only after she fell that the rug was bunched up or tented. Furthermore, even if the rug had been tented prior to the fall, there is no evidence that the defendant knew about the condition of the rug, or any evidence regarding how long the rug had been in that condition. The plaintiff testified that her transaction took less than two minutes. [O’Dell Deposition, 8/16/12, p.23.] Without evidence concerning when the rug became dangerous, a fact-finder could only speculate as to the defendant’s ability to discover and correct the problem. As a matter of law, the defendant did not have constructive notice. Therefore, because there is no issue of material fact regarding whether the defendant had actual or constructive notice of the rug’s dangerous condition, the defendant did not breach its duty.

III. Obvious Danger

Since we have determined that the defendant did not breach its duty to the plaintiff, is not necessary for us to determine if there is an issue of material fact as to whether the dangerous condition could be avoided. Therefore, we enter the following order.

ORDER

And now, January 25, 2013, upon consideration of defendant’s motion for summary judgment, the same is granted, and plaintiff’s suit is dismissed.

      . Reference to testimony from Ms. O’Dell’s deposition will be referred to as [“O’Dell Deposition, 8/16/12, p._.”]

      . Reference to testimony from Ms. McAlman’s deposition will be referred to as [“McAlman Deposition, 8/16/12, p._.”]


author: HERTZBERG, J.,

text:
    Perez v. Chajkowski

      C.P. of Allegheny County,
    No. 31 WDA 2013.

      Dario Perez, pro se plaintiff.

      Clinton Kelly, for defendant.
    February 27, 2013
   HERTZBERG, J.,

Plaintiff Dario Perez (“Mr. Perez”) has appealed to the Superior Court of Pennsylvania from orders that denied discovery of certain documents and that determined a certificate of merit is required. This opinion provides the reasons for the two orders. See Pa.RA.P. No. 1925(a).

Defendant Mary Ellen Chajkowski (“Ms. Chajkowski”) is an attorney hired by Mr. Perez in a dispute over the custody of two of his minor children with Karin Johnson, their mother, in this court at Docket No. FD 08-001564. Ms. Chajkowski represented Mr. Perez during a three day trial concerning custody and Karin Johnson’s petition to relocate the children to New York state. Ms. Chajkowski also represented Mr. Perez during various other contentious custody related court appearances that preceded the trial. Shortly after an order was signed that permitted relocation, Ms. Chajkowski filed a petition to withdraw as Mr. Perez’s attorney. The petition, which was granted, averred that Mr. Perez was delinquent in paying Ms. Chajkowski’s attorney fee billings.

Mr. Perez then filed a civil lawsuit against Ms. Chajkowski with a magisterial district judge, and six days later Ms. Chajkowski filed a separate breach of contract lawsuit against Mr. Perez in this court’s civil division, arbitration section. The magisterial district judge, after a hearing, found in favor of Ms. Chajkowski, and Mr. Perez appealed from that decision to this court’s civil division, arbitration section. On October 26, 2011, a panel of arbitrators decided Ms. Chajkowski’s breach of contract claim against Mr. Perez, DocketNo. AR11-005713, in her favor in the amount of $10,158.13, and on December 6, 2011, another panel of arbitrators decided Mr. Perez’ claim that Ms. Chajkowski provided him with “incompetent representation,” Docket Nó. AR 11-006860, in his favor in the amount of $950. Both arbitration awards were appealed and then consolidated for a jury trial.

I presided over the pre-trial conference held on October 25,2012. During the pre-trial conference, Mr. Perez asked me to decide his emergency motion to compel discovery and his motion to seek determination that a certificate of merit is not required. I granted the discovery motion in part, and I denied the motion concerning avoidance of a certificate of merit and directed Mr. Perez to file an expert’s report by November 21, 2012. Mr. Perez, however, failed to ever file either a certificate of merit or an expert’s report.

The jury trial was scheduled for December 3, 2012, and Mr. Perez filed an emergency motion to continue trial at a deferred date, but this motion was denied by the Honorable Judge Ronald W. Folino. The Honorable Judge Timothy Patrick O’Reilly was assigned to preside over the jury trial. Since Mr. Perez had not filed an expert’s report prior to the commencement of the trial, Judge O’Reilly entered an order of non pros as to the claim of incompetent

representation against Ms. Chajkowski at Docket No. AR 11-006860. The breach of contract claim against Mr. Perez proceeded to trial, and on December 4, 2012 the Jury returned a verdict in favor of Ms. Chajkowski in the amount of $8,073.13.

On January 2, 2013 Mr. Perez filed a notice of appeal to the Superior Court containing a concise statement of matters appealed. Mr. Perez indicates in the concise statement of matters appealed that he is appealing from the two decisions I made after the pre-trial conference, Judge Folino’s order that refused to continue the trial and Judge O’Reilly’s order of non pros as to the claim against Ms. Chajkowski. Judge O’Reilly provided the reasons for his order in a memorandum filed on January 4, 2013 and Judge Folino did the same in a memorandum filed on January 7, 2013. Therefore, this opinion addresses only the two decisions I made after the pre-trial conference.

Mr. Perez first argues that I made an error by reiusing to grant the portion of his discovery request that asked for Ms. Chajkowski’s client file from the custody dispute. During the pre-trial conference, Ms. Chajkowski asserted that she held a valid retaining lien as a result of Mr. Perez’s failure to pay her bill for legal services rendered. Ms. Chajkowski contended that this retaining lien allows her to maintain possession of Mr. Perez’s file until he pays her the balance owed for legal services rendered. The reason for my order denying Mr. Perez’s discovery request is that I agree with Ms. Chajkowski. Attorney retaining liens are permitted by Pennsylvania caselaw. See Laplacca v. Philadelphia Rapid Transit Co., 108 A.2d 612, 265 Pa. 304 (1919). In fact, the Pennsylvania Rules of Professional conduct specify that, “[ujpon termination of representation, .... [t]he lawyer may retain papers relating to the client to the extent permitted by other law.” Rule No. 1.16(d). The lien assists the attorney in collecting outstanding charges, and only when a client has an urgent need for papers to defend a criminal prosecution does a court have the discretion to disregard the lien. See U.S. v Ringwalt, 210 F. Supp. 2d 653 (E.D. Pa. 2002) and Pomerantz v. Schandler, 704 F.2d 681 (2d Cir. 1983). Since Mr. Perez clearly has not paid Ms. Chajkowski’s bill and his need for the file involves a civil matter, I did not make an error by denying his discovery request.

Mr. Perez next argues I made an error by ruling that he had to file a certificate of merit. The filing of a certificate of merit will only be excused when a claim against a professional involves something other than malpractice. See Krauss v. Claar, 2005 PA Super 255, 879 A.2d 302 (holding that a real estate purchaser’s claims against the seller’s attorney that sounded in fraud do not require filing of a certificate of merit). Since the lawsuit against Ms. Chajkowski clearly consists of a legal malpractice claim, a certificate of merit is mandatory. See Pa. R.C.P. 1042.1 (c)(2) and Parkway Corporation v. Margolis Edelstein, 2004 PA Super 307, 861 A.2d 264. If Mr. Perez believes he did not need an expert witness to prove malpractice by Ms. Chajkowski, he should still have filed a certificate of merit with that alternative selected. See Pa. R.C.P. No. 1042.9. Therefore, my decision to deny his motion to seek determination that a certificate of merit is not required was appropriate.

It appears that Mr. Perez also is arguing that I made an error by ordering him to file an expert’s report. More specifically, Mr. Perez argues that an expert witness is unnecessary because two judges who presided over the custody dispute found that Ms. Chajkowski committed multiple errors. Most legal malpractice lawsuits involve complex legal issues that a lay jury could not decide without guidance from an expert witness. See Storm v. Golden, 371 Pa. Super. 368, 538 A.2d 61(1988), appeal denied, 524 Pa. 630, 574 A.2d 71 (1989) and Robinson v. Wirts, 387 Pa. 291, 127 A.2d 706 (1956). “The only exception to this otherwise invariable rule” is when the malpractice allegation is simple, such as when an attorney allows the statute of limitations to expire. Robinson v. Wirts, 387 Pa. 291, 297, 127 A.2d 706, 710; Storm v. Golden, 371 Pa. Super, at 376, 538 A.2d at 65.

Mr. Perez attempts to simplify the malpractice allegation with his argument that two judges who presided over the custody dispute found that Ms. Chajkowski committed multiple errors. This is a misstatement of the Judges’ determinations in the custody dispute. In one instance, the Honorable David Wecht sanctioned Ms. Chajkowski without any explanation. See FD08-1564, Order dated November 24, 2010. In another instance, the Honorable Susan Evashavik DiLucente elected to sanction Mr. Perez instead of Ms. Chajkowski due to his conduct. See FD 08-1564, order dated January 14,2011. In a third instance, Judge Evashavik DiLucente sanctioned Ms. Chajkowski primarily for appealing two orders that the Superior Court quashed as interlocutory. See FD 08-1564, order dated June 21, 2011. However, these improper appeals may not have occurred due to attorney error, but may instead have involved a litigation tactic. In addition, the concept of what constitutes a non-final, interlocutory order can often be very complicated. Ironically, an earlier appeal to the Superior Court in the subject proceeding by Mr. Perez was quashed because the appeal was from a non-final, interlocutory order. See footnote no. 1 above. Finally, the two orders sanctioning Ms. Chajkowski are disbursed among a docket that contains 145 documents, including a variety of motions by both parties. Rather than something simple that a lay juiy could understand, the malpractice alleged is therefore complex and requires guidance from an expert witness. Hence, my determination that Mr. Perez needed an expert witness was not an error.

Even if Mr. Perez is correct and he did not need an expert witness, it appears he suffered no harm from the non pros of his case. While the unpaid balance of Ms. Chajkowski’s itemized invoices is $11,023.13 (See exhibits filed on September 24, 2012), the verdict of the jury was only $8,073.13. The juiy’s deduction of almost $3,000 from Ms. Chajkowski’s balance is no different than if Mr. Perez had been permitted to proceed on his malpractice claim and obtained a $3,000 verdict against Ms. Chajkowski.

Mr. Perez also argues my order that he file an expert’s report was erroneous because he does not have enough money to afford to hire an expert witness. Neither caselaw nor the rules on certificates of merit carve out an exception to the requirement of expert testimony due to financial circumstances. In any event, the contingent fee system often solves such financial problems when an attorney agrees to be paid a fee only if funds are received via a settlement or verdict and to advance expenses for an expert witness. If no attorney is willing to risk taking a contingent fee and advancing expenses for an expert witness, the claim may not proceed. This is the result of the contingent fee system and not the result of any error that I made.

Finally, Mr. Perez makes two additional arguments that are trivial. First, he alleges that an order signed on October 25, 2012 was docketed on an incorrect date and mailed to him later than the mailing date shown in the docket. Clearly Mr. Perez obtained the order in a timely manner by viewing it on the department of court records electronic docket, and he suffered no adverse consequences. Second, he alleges that Ms. Chajkowski waited over a year to file a notice of intention to enter judgment of non pros on professional liability claim. While there is a limit on how early this notice may be filed (more than thirty days after the filing of the complaint), there is no limit on how late it may be filed. See Pa. R.C.P. No. 1042.6. Rather than a detrimental impact on Mr. Perez, the filing of the notice one year after the filing of the complaint actually benefitted Mr. Perez by giving him extra time to obtain an expert witness.

      . On November 27, 2012 Mr. Perez also filed a notice of appeal to the Superior Court that identified two motions for reconsideration that I denied on November 15,2012 as the matters being appealed. That appeal, Superior Court Docket No. 1842 WDA 2012, was quashed by per curiam order dated December 19,2012 because it was not taken from a final order.

      . Because Mr. Perez did not order the transcript from the December 3-4, 2012 trial, I cannot be one hundred percent certain of why almost $3,000 was deducted from Chajkowski’s unpaid balance.


author: SIBUM, J.,

text:
    Commonwealth v. Graham

      C.P. of Monroe County,
    No. 1302 CR 2012.

      Hillary A. Prutzman, for Commonwealth.

      William A. Watkins, for defendant.
    January 29, 2013
   SIBUM, J.,

This matter comes before the court on defendant Robert Graham’s (hereinafter, “defendant”) omnibus pretrial motion in the nature of a petition for habeas corpus and motion for use of record from pretrial hearing in Grefe’s (hereinafter, “co-defendant”) case. On April 23,2012, a criminal complaint was filed charging defendant with one count of Hindering Apprehension or Prosecution — Harbors or Conceals the Other and one count of Hindering Apprehension or Prosecution — Providing False Information to Law Enforcement. On June 8, 2012, defendant waived his preliminaiy hearing. On August 27, 2012, defendant was formally arraigned. On November 2, 2012, defendant filed an omnibus pretrial motion. Defendant argues that he is entitled to habeas corpus relief because the Commonwealth cannot meet its prima facie burden on the charges presented in that (1) defendant cooperated with police and allowed them to search his home and (2) the wanted criminal was found in a basement apartment with a separate entrance, not under defendant’s control and not accessible from where defendant’s friends resided. By order dated November 6, 2012, this court allowed defendant’s matter to be decided based on the record from the hearing on co-defendant’s omnibus pretrial motion, which occurred on October 1, 2012. Defendant filed a brief in support of his motion on November 13,2012. The Commonwealth filed their memorandum in opposition to defendant’s omnibus pretrial motion on November 26, 2012. We are now prepared to decide this matter.

The relevant facts in this case, as presented at the omnibus hearing of co-defendant and in the affidavit of probable cause, and viewed in the light most favorable to the Commonwealth, are as follows: On April 23, 2012, Trooper Bruce Wesnak, a member of the criminal investigation unit of the Pennsylvania State Police, Fern Ridge, received information that an individual by the name of David Yeakel (hereinafter, “Yeakel”) was staying at a residence located at 6820 Beech Lane, Jackson Township, Monroe County. Thereafter, Trooper Wesnak ran an NCIC check on Yeakel and found that he had several outstanding warrants out for his arrest.

As a result of the information regarding Yeakel’s whereabouts, Trooper Wesnak, along with several members of the Pennsylvania State Police at Fern Ridge, responded to the 6820 Beech Lane residence. Upon his arrival, Trooper Wesnak established a perimeter and made contact with two individuals, defendant, and co-defendant Jeffrey Grefe. Defendant and co-defendant allowed police to enter the residence. Both men told police that they were in the process of moving into the home. Trooper Wesnak explained to defendant and co-defendant that he had information that Yeakel was at their residence and that he was wanted by police and asked the gentlemen if they knew Yeakel or knew of his whereabouts. Defendant stated that he did in fact know Yeakel because Yeakel was in a relationship with his sister and the two had a child together, but he did not know where Yeakel was located. Co-defendant told police that he did not know Yeakel and denied knowing YeakePs whereabouts.

Trooper Wesnak asked defendant and co-defendant if police could search the home, and both men provided their consent. Trooper Wesnak stayed with defendant and co-defendant in the kitchen area of the home while police conducted their search. At this time, Trooper Wesnak again asked the men if they had any knowledge of YeakeTs whereabouts, but neither of them provided any additional information. When police reached the lower level of the residence, they encountered a portion of the home that was boarded up and could not be accessed. Trooper Wesnak asked defendant and co-defendant about the boarded up area and both men stated that the landlord kept a dog there and would come by every couple of days to feed the dog. Further, both men stated that they did not have access to this area. Both defendant and co-defendant attempted to locate the landlord’s contact information.

Police continued to search the residence and entered the home’s attached garage. Police located a door connecting the garage to the rest of the home; additionally, a separate door inside the home led to the basement area that defendant and co-defendant previously told police was used by the landlord for his dog and as storage. Both defendant and co-defendant told police that they did not have a key to access the basement area, so police forcibly opened the door. Behind this door/and or boarded area, police found a fully furnished apartment that appeared to be occupied. After further inspection, Yeakel was located in a back bedroom lying in bed with his infant child. Yeakel, defendant, and co-defendant were all taken into custody and processed at the Pennsylvania State Police Headquarters at Fern Ridge. Defendant’s only statement at police headquarters was that he did not know that Yeakel was living in the downstairs part of the home.

DISCUSSION

Defendant petitions the court for habeas corpus relief and argues that the Commonwealth has failed to meets its prima facie burden on the two above-cited counts of Hindering Apprehension of Prosecution. More specifically, defendant asserts that (1) the Commonwealth presented no evidence that defendant “harbored or concealed” anyone and (2) no prima facie case can be made that defendant provided false information to a law enforcement officer. For the reasons set forth below, we agree with defendant.

Before we discuss the substantive portion of defendant’s habeas petition, we must address the untimeliness of defendant’s omnibus pretrial motion. Pa.R.Crim.P.Rule 579, entitled: Time for Omnibus Pretrial Motion and Service provides, in relevant part, the following:

(A) Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.

Pa.R.Crim.P.Rule 579(a). In the instant case, defendant was formally arraigned on August 27, 2012. Defense counsel filed an omnibus pretrial motion on November 2, 2012, well after the thirty (30) day time period proscribed in the above-cited rule. The record does not reveal any reasons why defendant could not comply with the time period for filing an omnibus pretrial motion, nor was there any motion by defendant seeking to lengthen the omnibus filing period. The Commonwealth failed to argue that defendant’s omnibus pretrial motion was untimely, as such, we will address defendant’s motion for the purpose of judicial economy.

When a criminal defendant seeks to challenge the sufficiency of evidence presented against him, he may do so by filing a writ of habeas corpus with the court of common pleas. Commonwealth v. Carmody, 799 A.2d 143, 146 (Pa. Super. 2002). In such instances, the habeas court acts in the capacity of a reviewing court to assess whether sufficient evidence exists to require the defendant to be brought to trial. Id. at 146-47.

“At the pre-trial stage of a criminal prosecution, it is not necessary for the Commonwealth to prove the defendant’s guilt beyond a reasonable doubt.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003). Rather, the Commonwealth establishes a prima facie case when it produces evidence of “each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Id. A prima facie case can be established by evidence that, if accepted as true, would warrant the trial judge to allow the case to go to the jury. Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), allocator denied, 745 A.2d 1220 (1999). In deciding if a prima facie case has been made, any inferences reasonably drawn from the evidence in the record that would support a guilty verdict are to be given effect and “the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). The weight and credibility of the evidence are not factors at this pre-trial stage. Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983).

Defendant has been charged with two counts of Hindering Apprehension and Prosecution pursuant to 18 Pa.C.S. §5105(a)(1) and (5). These sections provide as follows:

(a) Offense defined. — A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:
(1) harbors or conceals the other;
(5) provides false information to a law enforcement officer.

18 Pa.C.S. §5105(a)(1),(5). The Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence; however, this evidence must be more than mere conjecture or surmise. Commonwealth v. Manson, 327 A.2d 182 (Pa. Super. 1974).

In the instant case, defendant is first being charged with hindering apprehension and prosecution because he allegedly harbored or concealed a wanted felon, Yeakel. Admittedly, defendant told police that he knew Yeakel because his sister was in a relationship with Yeakel and the two had a child together. Defendant and co-defendant stated that there was a boarded up area in the basement of the Beech Lane residence and that they believed the landlord used the area for storage purposes. Defendant and co-defendant further informed police that they did not have access to the basement area, but they did attempt to locate the landlord’s contact information. Police gained access to the boarded up area and found Yeakel located in a bedroom with his young son.

Based on these facts, we do not find that the Commonwealth has met its prima facie burden that defendant intentionally hindered the prosecution of Yeakel by harboring or concealing him in the basement of his rented residence. Pursuant to 18 Pa.C.S.A. §302, “a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.” 18 Pa.C.S.A. §302(a). The parties in the instant matter agreed that defendant’s motion would be decided based on the record in the case of co-defendant, Commonwealth v. Jeffrey Scott Grefe, docketed at 1300 Criminal 2012.

By opinion and order dated October 31, 2012, we held that the Commonwealth had failed to establish a prima facie case against co-defendant for the Hindering Apprehension and Prosecution charges. After a review of the record, there is nothing that indicates that defendant in the instant matter had any greater knowledge of Yeakel’s whereabouts. Defendant did not own the Beech Lane residence, rather, he reported that he had just recently moved into the home and was renting from a landlord. Further, defendant stated he did not have keys to access the boarded up basement area of the home. As we stated in our previous opinion, while the Commonwealth emphasizes the set up of the house, garage, and access points, they have failed to provide any material evidence that defendant had access to the basement apartment and that he knew Yeakel was residing in the apartment.

The Commonwealth argues that the evidence establishes that defendant knew Yeakel was living in the basement and hindered his apprehension because defendant admitted that he knew Yeakel and because his sister had a child with Yeakel. While the Commonwealth may sustain its burden by means of wholly circumstantial evidence, we are not persuaded by this argument. The Commonwealth’s assumption that defendant was hindering YeakeTs apprehension because he knew Yeakel is based on mere conjecture. There was no detailed evidence regarding the nature of defendant’s relationship with Yeakel; the record only establishes that the two men knew each other. Without more, we cannot find that the Commonwealth has established a prima facie case.

Next, the defendant is being charged with a second count of Hindering Apprehension or Prosecution because he allegedly provided false information to Trooper Wesnak with the intent to hinder the apprehension and prosecution of Yeakel. As we previously stated, defendant informed Trooper Wesnak that he did know Yeakel but that he was unaware of his location. The Commonwealth asserts that defendant lied regarding YeakeTs whereabouts.

Based on the above-cited facts, we do not find that the Commonwealth has met its prima facie burden that defendant provided false information to the police in an attempt to hinder the apprehension or prosecution of Yeakel. Again, we are deciding defendant’s case based on the record set forth in the case of co-defendant. After a review of the record and the testimony, there was no additional evidence presented that indicates that defendant in the instant matter had any more knowledge than his co-defendant, nor does the record reveal that defendant was more likely to provide false information to law enforcement. Defendant was forthcoming with police about his relationship with Yeakel and the Commonwealth has failed to provide any evidence that defendant was lying about Yeakel’s whereabouts.

Defendant effectively argues that even if defendant provided false information to police, this fact would not be enough to sustain the Commonwealth’s burden. According to the Pennsylvania Superior Court, [e] ven if defendant had the requisite intent, providing false answers in response to questions initiated by law enforcement officers does not amount to the crime of hindering apprehension or prosecution (emphasis added), Commonwealth v. Neckerauer, 617 A.2d 1281 (Pa. Super. 1992); Commonwealth v. Gettemy, 591 A.2d 320 (Pa. Super. 1991), allocatur denied, 602 A.2d 856 (Pa. 1991). We also find that Defendant’s apparent cooperation with police negates any intent to harbor Yeakel or provide false information regarding his whereabouts. Defendant, along with co-defendant, provided consent to search the home and offered to locate the landlord’s contact information. As such, the Commonwealth has failed to meet its prima facie burden on both counts of the Hindering Apprehension or Prosecution charges.

Accordingly, we enter the following order.

ORDER

And now, January 29, 2013, after hearing and upon consideration of defendant’s omnibus pre-trial motion in the nature of a motion for habeas corpus relief, the motion is granted.

      . Defendant’s case was joined with that of co-defendant’s, Jeffrey Grefe, docketed at 1300 CR 2012. A hearing on co-defendant Grefe’s omnibus pretrial motion in the form of a petition for habeas corpus was held on October 1, 2012. By order dated November 6, 2012, this court held that the record from co-defendant Grefe’s case would be used, and we took the matter under advisement.

      . 18 Pa.C.S.A. §5105(a)(1)

      . 18 Pa.C.S.A. §5105(a)(5)

      . Defendant executed a waiver of arraignment form on August 8, 2012; however, the document was not filed with the clerk of courts until August 20, 2012. Despite this waiver, the record reveals that on August 13,2012, the Honorable Arthur L. Zulick continued defendant’s arraignment to August 20, 2012 due to defendant’s failure to appear. By order dated August 20, 2012, this court continued defendant’s arraignment from August 20, 2012 to August 27, 2012. On August 27, 2012, the Honorable David J. Williamson formally arraigned defendant.

      . As we will later discuss, defendant’s omnibus pretrial motion was not timely filed.

      . According to the affidavit of probable cause, an NCIC check revealed that Yeakel was wanted by the Pennsylvania State Police at the Swiftwater and Fern Ridge barracks and the United States Marshall’s office for various offenses including Fleeing and Eluding Police, Receiving Stolen Property (a felony of the second degree relating to the possession of a stolen motorcycle), and charges related to the manufacture of methamphetamine.

      . At the omnibus hearing, Trooper Wesnak initially testified that it was co-defendant who stated that his sister was in a relationship with Yeakel and that the two had a child together. However, during defense counsel’s cross-examination of Trooper Wesnak, he admitted that he had confused co-defendant with defendant. Trooper Wesnak then clarified that it was defendant who knew Yeakel and that co-defendant told police he did not know Yeakel. Further, during the omnibus hearing, Trooper Wesnak was unable to identify co-defendant, who was present at the hearing and seated at a table with his defense counsel.


author: ZULICK, J.,

text:
    Metropolitan Property & Casualty. Ins. Co. v. Ostuni

      C.P. of Monroe County,
    No. 5009 CV 2011.

      Brian J. Walker, for plaintiff.

      Lisa Marie Ostuni, pro se defendant.
    February 4, 2013
   ZULICK, J.,

On June 7, 2011, the plaintiff, Metropolitan Property & Casualty Insurance Company a/s/o the Estate of Robert Apuzzi (hereinafter “Metropolitan”), filed a complaint against the defendant, Lisa Marie Ostuni. Metropolitan sought judgment against Ms. Ostuni for expenses paid on the uninsured motorist insurance policy of Robert Apuzzi due to Ms. Ostuni’s alleged negligence. On January 9, 2012, a default judgment was entered against Ms. Ostuni for her failure to respond to the complaint. On December 31, 2012, Ms. Ostuni filed a pro se “motion to extend time for lawsuit due to extenuating circumstances.” A hearing was held on Ms. Ostuni’s motion on January 25, 2013. Metropolitan’s counsel appeared at the hearing and Lisa Ostuni appeared by videoconference from the state correctional institution where she is incarcerated.

FINDINGS OF FACT

1. On January 12, 2011, Ms. Ostuni was sentenced to serve a term of incarceration for not less than two (2) years but no more than (6) years in the State Correctional Institution for Women in Muncy, Pennsylvania, OR2834, P.O. Box 180, Muncy, Pennsylvania 17756 (hereinafter “SCI Muncy”).

2. Ms. Ostuni has been incarcerated at SCI Muncy from the time of her sentencing to present.

3. The service of the complaint was accomplished using United States mail, certified, return receipt requested, sent to Lisa Marie Ostuni, 7599 Silage Circle, Port Charlotte, Florida 33981. Plaintiff’s Exhibit 3. A Freedom of Information Act request to the postmaster identified this as a potential address for Ms. Ostuni. Id.

4. On August 1, 2011, Metropolitan filed an affidavit of service indicating that a true and correct copy of the complaint had been served on Ms. Ostuni on July 12, 2011.

5. The Silage Circle address is where Ms. Ostuni’s mother resides.

6. The return receipt was signed by Ms. Ostuni’s mother. Plaintiff’s Exhibit 2.

7. Both the complaint and the affidavit of non-military service completed by Brian J. Walker, Esquire, identifies Ms. Ostuni’s address as 5230 State Road 776, Venice, Florida 34293.

8. Service was attempted at the 5230 State Road 776 address, however, the same was returned as “Attempted-Not Known, Unable to Forward”. Plaintiff’s Exhibit 1.

9. There was no testimony presented indicating that the Silage Circle address was or had ever been Ms. Ostuni’s address apart from the Freedom of Information Act report.

10. Ms. Ostuni testified that she did not learn of the complaint from her mother until months later. She was not sure of an exact date she learned of the lawsuit, but identifies the timeframe as “recently” in her December 31, 2012, letter to the court.

11. Service was not attempted at SCI Muncy.

DISCUSSION

Upon examination of Ms. Ostuni’s petition, this court determined that her motion was, in fact, in the nature of a motion to open or strike judgment and will be considered as such. Generally, the pleadings of a pro se litigant are construed more liberally by the court. The Commonwealth Court in Reider v. Commonwealth, Bureau of Correction, 502 A.2d 272 (Cmwlth. Ct. 1985), asserted that a pro se litigant’s pleadings “are held to a less stringent standard than that applied to the formal proceedings drafted by attorneys.” Reider, 502 A.2d at 273 (citing Haines v. Kerner, 404 U.S. 519 (1972) (examining the pleading requirements under the Federal Rules of Civil Procedure)). Ms Ostuni asserts in her December 31, 2012 letter and at the hearing that she did not receive a copy of the complaint until “just recently.” A review of the record does not support a striking or opening of the default judgment.

I. Petition to Strike Default Judgment

Ms. Ostuni’s petition asking that the court permit her to litigate the case due to non-receipt of service may be read as a petition to strike. “A petition to strike a default judgment will be granted where a fatal defect appears on the face of the record.” Academy House Council v. Phillips, 458 A.2d 1002 (Pa. Super. 1983) (citing Cameron v. Great Atlantic & Pacific Tea Co., 266 A.2d 715 (1970)). A review of the record in this case does not reveal a facial defect that would be fatal to the judgment.

At the time judgment was entered, the record showed that Metropolitan had effectuated good substitute service on Ms. Ostuni pursuant to Pa. R. Civ. P. 402 which permits service at one’s residence accepted by an adult family member who resides there. Plaintiff’s Exhibit 3, also attached to plaintiff’s August 1,2011, affidavit of service, showed that a freedom of information act inquiry had been conducted identifying the Silage Circle address as Ms. Ostuni’s residence. The return receipt, also part of Exhibit 3 and the affidavit of service, shows that the service was accepted and signed for by Ms. Ostuni’s mother. Similarly, the praecipe for entry of default judgment shows notice sent to the Silage Circle address and again signed for by Ms. Ostuni’s mother. Therefore, on the face of the record, there are no fatal defects that would justify striking the default judgment.

II. Petition to Open Default Judgment

Ms. Ostuni’s petition may also be read as a request that the court open the default judgment. Pennsylvania Rule of Civil Procedure 237.3 allows a party to seek relief from the entry of a default judgment against them. Rule 237.3 provides:

(a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file.
(b) If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense.

Pa. R. Civ. P. 237.3(a) and (b). In analyzing this rule, the Pennsylvania Superior Court has said:

In general, a default judgment may be opened when the moving party establishes three requirements: (1) a prompt filing of a petition to open the default judgment; (2) a meritorious defense; and (3) a reasonable excuse or explanation for its failure to file a responsive pleading.

Dumoff v. Spencer, 754 A.2d 1280, 1281 (Pa. Super. 2000). Service having been sent to a location which was not the defendant’s residence or place of business has been found to be a reasonable excuse. Brown v. Great Atlantic & Pacific Tea Co., 460 A.2d 773, 777-78 (Pa. Super. 1983). The superior court in Dumoff additionally noted that:

A petition to open a default judgment is an appeal to the equitable powers of the court. The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and... [it will not be overturned] “absent a manifest abuse of discretion or error of law.”

Dumoff, 754 A.2d at 1282 (citations omitted). However, “the trial court cannot open a default judgment based on the equities of the case when... [the petitioner] has failed to establish all three of the required criteria.” Seeger v. First Union Nat’l Bank, 836 A.2d 163, 167 (Pa. Super. 2003).

Ms. Ostuni has failed to meet the requirements set forth in Pa. R. Civ. P. 237.3 and by the superior court in Dumoff. Rule 273.3(a) requires the defendant to attach a copy of the answer or other responsive pleading to his or her petition. Ms. Ostuni has attached no responsive pleading to her December 31, 2012, petition nor can the letter itself be construed as such. Though Ms. Ostuni has articulated a reasonable excuse under Brown, claiming she did not receive service due to her incarceration at SCI Muncy, she has failed to meet the additional two requirements of subsection (b) as elaborated on in Dumoff. Her petition was not promptly filed within ten (10) days of the entry of default judgment. Judgment was entered on January 9, 2012, while Ms. Ostuni’s petition was received on December 31, 2012, almost a year later. Additionally, and more significantly, at no time has Ms. Ostuni articulated a meritorious defense to the action. Neither Ms. Ostuni’s petition nor her testimony at the hearing articulated any basis on which to defend the action brought against her by Metropolitan. Therefore, Ms. Ostuni’s petition to open default judgment will be denied.

CONCLUSIONS OF LAW

1. There was no fatal defect on the face of record at the time default judgment was entered to justify striking the judgment.

2. Ms. Ostuni has failed to satisfy the elements necessary to open the default judgment entered against her on January 9, 2012.

ORDER

And now, February 4, 2013, upon consideration of the petition to strike or open default judgment by the defendant Lisa Marie Ostuni, the pertinent facts adduced at the hearing, and the parties’ arguments, it is ordered as follows:

1. Ms. Ostuni’s petition to strike the default judgment is denied; and
2. Ms. Ostuni’s petition to open the default judgment is denied.


author: HIGGINS, J.,

text:
    Alza v. Alza

      C.P. of Monroe County,
    No. 8498 CV 2005; 123 DR 2005.

      Nicholas J. Masington, for plaintiff.

      Matricia O ’Donnell McLaughlin, for defendant.
    February 7, 2013
   HIGGINS, J.,

This case is before the court on plaintiff Linda M. Alza’s (“wife”) petition for special relief (“petition”) seeking to extend her alimony payments and to finalize the specific wording of the Qualified Domestic Relations Order (QDRO) for payment of the survivor annuity option to her. Defendant Alfredo W. Alza (husband) objects to the extension of alimony and claims that the QDRO was prepared by her counsel which she now refuses to execute. The court held a hearing on the petition for special relief on November 21, 2012, and we are now prepared to rule in this matter.

The parties were married on October 18, 1987, in Bergen County, New Jersey. One child was bom of the marriage, Karissa Alza, DOB May 31, 1990. On May 28, 2010, the parties were divorced from the bonds of matrimony. Thereafter on September 12, 2012, wife filed a petition for special relief seeking to extend her alimony payments and to finalize QDRO language. Husband filed an answer to plaintiff’s petition for special relief and included a counterclaim seeking an award of counsel fees in the amount of $2,000.00 and any other such relief as the court sees just and fitting.

At the time of the divorce master’s hearing held on April 22, 2009, wife had applied for Social Security Disability benefits but she had not been approved to receive benefits at that time. At the divorce master’s hearing the parties stipulated that wife would receive alimony for a period of three and one-half (3 At) years. For the first three years wife would receive $2,500.00 per month and for the final six months wife would receive $1.200.00 per month. On November 9,2010, wife was determined to be completely disabled and was granted Social Security Disability benefits retroactive from the date of filing. In wife’s petition, she averred that she continued to experience health problems after the divorce. Wife alleges she experienced a change in circumstances since the time of the divorce master’s hearing and that she was not officially labeled “disabled” at the April 22,2009 hearing, but she has since been determined to be totally and/or permanently disabled by the Social Security Administration. Accordingly, wife believes that she suffered a change in circumstances which requires a continuation of her alimony benefits until such time as she begins receiving her portion of husband’s pension.

In determining whether wife is entitled to an extension of her alimony payments, we first look to the agreement of the parties. The record reflects that wife had no income at the time of the divorce master’s hearing. [Transcript of hearing dated April 22, 2009 at p. 9 (hereinafter “N.T.”)] The parties specifically agreed that the alimony payment will be subject to modification by any court of competent jurisdiction upon either a substantial change in financial circumstances and pursuant to all the applicable case law and whatever other body of law is out there. [N.T. pp., 6,16, 17] Neither party has raised the issue that alimony cannot be modified. Therefore, we will look to the provisions of the Divorce Code to determine whether a substantial change is financial circumstances has occurred triggering a modification in alimony.

An appellate court will not interfere with the broad discretion afforded a trial court in fashioning a support order, including alimony, unless an error of law or an abuse of discretion is occurs. Willoughby v. Willoughby, 862 A.2d 654, 656 (Pa. Super. 2004). “An ‘abuse of discretion’ or failure to exercise sound discretion is not merely an error of judgment. But if, in reaching a conclusion, law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason, discretion must be held to have been abused.” Stamerro v. Stamerro, 889 A.2d 1251 (Pa. Super. 2005) (citations omitted).

The Divorce Code states that “[a]n order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made. Any further order shall apply only to payments accruing subsequent to the petition for the requested relief. Remarriage of the party receiving alimony shall terminate the award of alimony.” 23 Pa. C.S. §3701(e). Further, the Divorce Code clearly identifies the achievement of economic justice as one of its purposes for the parties who are dissolving their marriage. Pacella v. Pacella, 492 A.2d 707 (Pa. Super. 1985). In this context, alimony is designed to be rehabilitative, leading to the self sufficiency of the recipient. Id. However, alimony is based on the payor’s ability to pay. DeMarco v. DeMarco, 787 A.2d 1072 (Pa. Super. 2001). “A petition for modification or termination of an existing support order shall specifically aver the material and substantial change in circumstances upon which the petition is based. A new guideline amount resulting from new or revised support guidelines may constitute a material and substantial change in circumstances. The existence of additional income, income sources or assets identified through automated methods or otherwise may also constitute a material and substantial change in circumstances” Pa. R.C.P. 1910.19(a).

Here, at the time of the divorce master’s hearing, wife was unemployed [N.T., p.9] and waiting on a decision from the Social Security Administration (SSA) about her request for total and permanent disability. The parties agreed that they would live together and husband would continue to pay the bills until wife received her buyout and relocated from the marital home. In addition, the parties resolved the alimony issue. In her petition, wife argues that since she was not approved to receive Social Security disability at the time of the divorce master’s hearing and she continues to suffer from health problems, she should receive a continuation of her alimony. Wife admits that she was ultimately determined to be totally disabled by SSA, however, her benefits are reduced due to her alimony payments. She complains that she is unable to pay her bills and requests that her alimony continues until she begins receiving pension benefits when husband retires.

After reviewing the testimony and evidence in this matter, we do not believe that wife has demonstrated a change in circumstances which would permit the alimony payments to continue. Wife’s financial circumstances have certainly improved since the timé of the divorce master’s hearing. She not only began receiving alimony as a source of income but she also was approved to receive SSA benefits. Wife testified that she moved to Florida and lived with her mother after the divorce. After wife’s mother died, she received an inheritance of $8,000.00. Wife also stated that in 2005 when she filed for divorce she was in a relationship with another man. We find that the evidence does not establish that a substantial change in circumstances occurred which justify extending alimony payments.

On the other hand, husband testified that he was assisting his daughter financially with her car payments and interest on her undergraduate student loans. In addition, since his mother passed away, husband has been contributing towards the support if his father who has Alzheimer’s disease and was not suffering from the disease in 2010. Husband also denied that he has an extramarital affair.

We do not believe that an extension of alimony payments is warranted since wife was not working at the time of settlement and subsequently received an income through SSA benefits. Further, wife would not have been owed spousal support due to her extramarital affair. In fashioning an award that is fair and non-confiscatory to the parties under the circumstances, we believe that wife is not entitled to an extension of alimony.

In her petition, wife also requests that the QDRO language specify that the costs for the survivor annuity be paid from husband’s portion of the pension. At the outset we note that a “determination of marital property rights through.. .settlement agreements has long been permitted, and even encouraged... [and any settlement agreements] are governed by the same rules of law as used in determining the validity of contracts. Absent fraud, misrepresentation, or duress, parties are generally bound by the terms of their agreements. Adams v. Adams, 848 A.2d 991, 993 (Pa. Super. 2004)(citations omitted).

At the time of the divorce master’s hearing, the parties agreed that wife would be entitled to fifty (50 percent) percent of the martial value of the pension. [N.T., p. 12] Wife’s attorney stated that wife may be able to elect a survivor annuity with regards to her portion of the annuity. [N.T., p. 13] If wife elects the survivor annuity, “we would have to redo the percentages in order to effectuate an equitable distribution because obviously Mr. Alza would receive less in his overall pension benefit.” Id. In addition, counsel for the parties asked to keep the record open and for the assistance of the divorce master in addressing the issue. [N.T., p. 14] The divorce master agreed to hold the record open “until I have actual confirmation from both counsel that it’s okay to file it.” Id. Further, the master agreed to hold a conference or post-hearing meeting to discuss the same. Id. The master’s report and recommendation was filed on May 5, 2010 to which wife filed exceptions on May 28, 2010 stating that the master erred in filing his report and recommendation prior to the finalization of the QDRO, however, wife’s exceptions were never pursued. Additionally, since wife chose the option to receive a survivor annuity which would create a reduction in husband’s annuity, we believe that any costs associated thereto should be paid by wife.

In light of the foregoing, we enter the following order:

ORDER

And Now, February 7, 2013, after hearing and upon consideration of plaintiff’s petition for special releif and the response thereto, it is hereby ordered that plaintiff’s petition is denied.


author: TERESHKO, J.,

text:
    Skrocki v. Erie Insurance Co.

      Daniel L. Hessel and Ramon A. Arreola, for appellant

      Lindsay D. Liebman, for appellee Row; Jeffrey B. Rettig, for appellee Erie Insurance
    February 13, 2013
   TERESHKO, J.,

On November 4, 2007 plaintiff was a passenger in a vehicle driven by Joseph Kelly. (Complaint ¶ 8). Kelly was proceeding along Route 562 in Berks County with a green light when defendant Row (hereinafter “Row”) went through the red light at the same intersection, and a collision between the two vehicles occurred. (Complaint ¶¶ 9-11). Row admitted she was unaware what color the light was due to the glare of the sun. (Complaint ¶ 12). Defendant Erie Insurance Exchange (hereinafter “Erie”) is Joseph Kelly’s insurance provider. (Complaint ¶ 13). Plaintiff does not maintain a policy of insurance, but is entitled to recover uninsured motorist benefits under Kelly’s policy with Erie. (Complaint ¶ 14,15). In addition, plaintiff is covered under her parents’ car insurance - also provided by Erie. (Complaint ¶ 15). Plaintiff sustained permanent knee injuries as a result of the accident, which may require surgery at a later date. (Complaint ¶¶ 17-19).

Plaintiff commenced this action by filing her complaint on March 1, 2012. {See docket). Plaintiff asserted claims against defendants Row and Erie for damages arising out of the motor vehicle accident. (Complaint ¶¶ 24, 34).

Defendant Erie filed their preliminary objections to plaintiffs complaint on March 27, 2012 asserting that the contract claim should be severed from the tort claim against Row pursuant to Pa R.C.P. 213(b). (Defendant Erie’s preliminary objections ¶ 6).

Plaintiff answered defendant Erie’s preliminary objections on April 16, 2012. {See docket). Plaintiff stated Pa. R.C.P. 2229(b) allows plaintiff to join Erie because there is a common question of law or fact. {See plaintiff’s opposition to Erie’s preliminary objections). Plaintiff also claims defendant Erie had no standing to file preliminary objections because defendant Erie’s request for severance should have been filed as a motion. Id. On April 20, 2012 this court granted defendant Erie’s request for severance from the action against defendant Row. {See docket).

Also on April 20, 2012, defendant Erie filed a motion to transfer venue for forum non conveniens pursuant to Pa. R.C.P. 1006(d) 1. Id. Erie argued Philadelphia County has no relationship to the plaintiff, either defendant, or the cause of action on which plaintiffs claim is based. (Defendant Erie’s motion to transfer venue ¶ 9). However, Erie did admit that it sells insurance policies in Philadelphia County. Id. at ¶ 19.

Plaintiff responded to Erie’s motion to transfer venue for forum non conveniens on May 8, 2012, claiming that Erie failed to establish facts on the record in support of its claim. (See plaintiffs response in opposition to motion to transfer venue). On May 22, 2012 this court denied defendant Erie’s motion to transfer venue. (See docket).

Defendant Row filed preliminaiy objections to plaintiff’s complaint on the basis of improper venue on April 27, 2012. Id. Row argued that the accident occurred in Berks County, Row was correctly served in Berks County, and plaintiff was a resident of Berks County at the time of the accident. (Defendant Row’s preliminary objections to plaintiffs complaint ¶¶ 12-14). Row further alleged that because this court’s order of April 20, 2012 severed the plaintiffs action against Row from the action against Erie, there was no longer a connection to Philadelphia County. Plaintiff currently resides in Montgomery County. (Defendant Row’s memorandum supporting preliminaiy objections at pg. 2).

Plaintiff answered Row’s preliminary objections on May 14,2012. (See docket). Plaintiff claimed that because defendant Erie conducts business in Philadelphia, venue is proper as to all defendants. (Plaintiffs response to defendant Row’s preliminary objections ¶ 1).

Plaintiff filed preliminary objections to defendant Row’s preliminary objections on May 15, 2012. (See docket). Plaintiff claimed defendant Row had 20 days from when she was personally served to file any responsive pleadings, and because she failed to do so, Row’s preliminary objections should have been deemed untimely. (Plaintiff’s preliminary objections ¶¶ 4, 8). Plaintiff further claimed that the grant of a time extension to Row was intended for the filing of an Answer only, not preliminary objections. Id. at ¶ 6.

Plaintiff filed a supplemental reply to Row’s preliminary objections stating, because this court denied Erie’s motion to transfer venue, Erie is still a party to the case and therefore, Row’s objections are without merit. (Plaintiffs supplemental response to Row’s preliminary objections at 1).

Defendant Row responded to plaintiff’s preliminary objections by way of an answer on June 5, 2012. (See docket). Row stated the late filing was acceptable because plaintiff’s counsel granted a time extension. (See defendant Row’s answer to plaintiff’s preliminary objections). The parties have not started discovery yet, nor has a case management order been issued; therefore, plaintiff is not prejudiced by the later filing. Id.

On June 15, 2012, this court overruled plaintiffs preliminary objections and sustained defendant Row’s preliminary objections, thus transferring the case to Berks County. (See docket).

On June 27,2012 plaintiff appealed to the Pennsylvania Superior Court, then filed the required Pa. R.C.P 1925(b) statement of matters complainted of on appeal on July 12, 2012 pursuant to this court’s order of July 2, 2012. Id.

The issues to be addressed on appeal are:

1) whether this court erred in overruling plaintiffs preliminary objections to defendant’s preliminary objections when plaintiff provided a time extension to defendant Row to respond to the complaint; and
2) whether this court erred in transferring the case to Berks County when the only connection to Philadelphia County was a defendant whom this court ordered to be severed from the case.

LEGAL ANALYSIS

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. Feingold v. Hendrza, 15 A.3d 937, 942 (Pa. Super. Ct. 2011). The standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. Id. at 941.

A preliminary objection in the nature of a demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the facts alleged. Petsinger v. Dept. of Labor & Indus., 988 A.2d 748, 753 (Pa. Cmwlth. 2010).

In the instant case, the plaintiff claims the defendant’s preliminary objections were untimely and therefore, should have been rejected by this court. Plaintiff correctly cites Pa. R.C.P. No. 1026 as controlling. In Gale v. Mercy Catholic Med. Ctr., Fitzwater Mercy Div., 698 A.2d 647, 649 (Pa. Cmwlth. 1997), the court interpreted Pa. R.C.P. 1026, stating,

The Pennsylvania Rules of Civil Procedure provide that all pleadings subsequent to the complaint must be filled within 20 days after service of the preceding pleading.
This rule, however, may be interpreted as permissive rather than mandatory. It is left to the sound discretion of the trial court to permit a late filing of a pleading where the opposing party will not be prejudiced and justice so requires.

In the instant matter, plaintiff agreed to an extension for Row to file an answer to plaintiffs complaint. During that time extension, the April 23,2012 order severing Erie claims gave Row a basis for requesting transfer of venue by way of preliminary objections.

Plaintiff then alleges that preliminary objections are not “responsive pleadings” under the Pennsylvania Rules of Civil Procedure. However, the explanatory comments to Pa. R.C.P 1026, governing time for filing, state:

Some confusion has been caused by the phrase “responsive pleading”. The argument has been made that the term does not include preliminary objections because preliminary objections are not responsive to the pleading. They do not respond to the factual allegations of the preceding pleading.
Such an argument leaves the preliminary objection in the position of not being required to be filed within the same time period as the other pleadings. This construction is contrary to rule 128(a), which provides that the Supreme Court in promulgating the rule did not intend a result that is unreasonable. However, to remove any ambiguity created by the phrase, the rule is amended to delete the word “responsive”.

Pa. R.C.P. §1026

Therefore, in the instant case, defendant Row’s preliminary objections are responsive pleadings under the Pennsylvania Rules of Civil Procedure. Defendant Row did not waive her right to file preliminary objections when she requested a time extension to file an answer because her request encompassed the filing of either preliminary objections or an Answer.

Plaintiff claims that she is prejudiced by the late filing because Row would not have had a basis to challenge venue if Row had filed a response to the complaint on time. Prejudice “includes any substantial diminution [in Appellant’s] ability to present factual information in the event of trial.” Gale, 698 A.2d at 650 (Pa. Super. Ct. 1997). (Concluding that the filing delay did not adversely affect plaintiff’s ability to present facts at trial or oppose defendant’s challenges. The court further suggested even a delay in trial might not be sufficient to prejudice plaintiff).

Similarly, in the instant case, plaintiff has not demonstrated any substantial diminution in her ability to present facts in trial, nor has she been prohibited from confronting any of defendant’s challenges. Here, discovery had not even begun when the preliminary objections were filed. Therefore, plaintiff has failed to prove how defendant’s late filing would prejudice her after plaintiff voluntarily offered to extend the deadline.

Next, plaintiff claims this court should not have ruled that venue in Philadelphia County was improper because venue is determined at the time the complaint is filed. Prior to severance, venue in Philadelphia County was proper because venue was proper as to defendant Erie who conducts business in in Philadelphia County.

In Gale v. Mercy Catholic Medical Center Eastwick, Inc., 698 A.2d 647, 1997 Pa. Super. LEXIS 2431 (1997), the plaintiff appealed the trial court’s order to transfer venue to Delaware County. Id. at 650. In that case, the only allegation in the complaint establishing venue in Philadelphia County was the Philadelphia business address of a defendant who had subsequently been voluntarily dismissed from the case. Id. At 651. However, plaintiff’s preliminary objections to defendant’s preliminary objections and plaintiffs motion to strike contained additional information establishing proper venue in Philadelphia County. Id. The Superior Court determined that the defendant’s argument that venue may only be established by looking exclusively at the allegations in the complaint was not supported by any case law. Id. at 651. The Superior Court further explained, “Rule 1028 specifically provides that “[i]f an issue of fact is raised [in preliminary objections], the court shall consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2).” Id. at 652. Thus, the court is not limited to the complaint and an examination of the circumstances as they existed at the time of the filing of the complaint in its resolution of preliminary objections.

In the instant case, it is the plaintiff who makes this same erroneous argument. Plaintiff asserted that the order severing the claims did not render venue improper because venue was proper at the time of the filing of the complaint based upon defendant Erie’s business dealings in Philadelphia County. However, after the claims were severed, there was no basis to establish venue in Philadelphia as to defendant Row, and preliminary objections were properly filed and resolved by this court.

Similarly, in Jackson v. Laidlaw Transit, 822 A.2d 56 (Pa. Super. 2003). The plaintiff brought suit as a result of a motor vehicle accident. Id. The plaintiff claimed transfer out of Philadelphia County was improper despite the fact that the only defendant against whom venue in Philadelphia County was proper was dismissed from the case. The Superior Court disagreed, holding that once the corporate defendant, Laidlaw, the sole tie to Philadelphia County, was dismissed from the case, venue against the remaining defendants was proper only in Bucks County where the accident occurred and where all the defendants could be properly served. Id. at 58. The court-reasoned that if the plaintiff had (hypothetically) only sued the remaining defendants (not the dropped Philadelphia County defendant), venue would not have been proper in Philadelphia from the start, with the same result. Id. at 59. The court concluded that plaintiff’s claim — that the dismissal of the only defendant with contacts in Philadelphia County should not affect venue — was incorrect, and the trial court did not abuse its discretion as a matter of law. Id.

Similarly in this case, the only defendant who could-render venue in Philadelphia proper was severed pursuant to Pa. R.C.P. 213(b). This is identical to the scenario - presented in Jackson where the dismissed defendant possessed the only ties to Philadelphia. After that defendant was dismissed, the court assessed the issue of venue only as to the remaining defendants.

Here plaintiff’s claims against Row were severed. Venue is not proper in Philadelphia County as to defendant Row. Therefore, this case was properly transferred to Berks County, the appropriate venue based on the facts presented.

CONCLUSION

For the foregoing reasons, this court respectfully requests its decision to sustain defendants preliminary objections be affirmed.

      . Plaintiff’s contention arises from the decision to sever defendant Erie from the case. Plaintiff asserts that because this occurred after the extension to file was granted, defendant Row was able to make a claim she would not otherwise have had.