author: COX, J.,

text:
    Hogue v. Soom

      C.P. of Lawrence County,
    nos. 10701 of 2004, 11082 of 2004.

      Dallas W Hartman, for plaintiff Hogue.

      Frank A. Natale II, for plaintiff Rebeor.

      Jeffrey M. Olszewski and Jamie L. Lenzi, for defendants.
    January 31, 2007
   COX, J.,

Before this court for disposition is defendants’ motion for reconsideration and/ or application for determination of finality. Plaintiff Hogue and defendants, supporting their respective position on this motion, have submitted briefs and this court makes the following findings of fact:

Plaintiff, David B. Kerr, and defendant, Crystal Carper, both deceased, and plaintiff, Douglas Rebeor, were employees of defendant Eckerd Corporation as “project team members.” The duties of a “project team member” involved traveling to stores owned by defendant Eckerd, in the region to which they were assigned, to perform remodeling work, such as moving and stocking shelves and installing tile. Shift times were dependent on the required work. Team members would continue to travel to the same location until they completed the assigned work and then would move on to another location. During their assignment, team members had the option to ride in a van leased by Eckerd or drive his or her personal vehicle to the designated store. There was no requirement that the team members utilize the van provided by Eckerd, but a travel pay incentive was provided to those whom did travel to the worksite in the company-leased van. The facts presented demonstrate that both plaintiffs took advantage of the company-provided transportation.

On the morning of August 28,2002, at approximately 9:16 a.m., Ms. Carper was driving the Eckerd-leased van in a northerly direction from a store located on McKnight Road in Pittsburgh, Pennsylvania back to the designated pick-up/drop-off location in New Castle, Pennsylvania via State Route 18, when she entered into the southbound lane, designated a “no passing zone,” in an attempt to pass another vehicle. As a result of the lane change, the Eckerd-leased vehicle collided head-on with a tractor-trailer. Plaintiff Kerr and Ms. Carper sustained fatal injuries. Plaintiff Rebeor experienced serious but non-life threatening injuries for which he was treated and eventually released.

On June 2,2004, plaintiff, Ms. Pamela S. Hogue, filed a complaint in this court sounding in tort, individually and as administratrix of Mr. Kerr’s estate, against the named defendants. Then, on August 20, 2004, plaintiff Rebeor filed a negligence suit against Ms. Carper’s estate. Subsequently, on May 18, 2006, defendants filed a motion for summary judgment on the basis that plaintiffs were acting in the course and scope of their employment, thereby restricting plaintiffs to workers’ compensation claims. In response, plaintiff Kerr’s estate filed a motion for partial summary judgment, claiming he was not acting within the course and scope of his employment and, therefore, not subject to the exclusivity of workers’ compensation. Plaintiff Rebeor did not file any motion in response to defendant’s motion for summary judgment. Then, on September 6, 2006, after oral argument and a review of the pertinent facts presented, this court granted plaintiff Kerr’s motion for partial summary judgment, agreeing that plaintiff was entitled to move forward in a civil action for the death of Mr. Kerr. Additionally, this court denied defendants’ motion for summary judgment against plaintiffs, concluding they were not acting in the course and scope of their employment at the time of the accident. Defendants, in opposition to the order, filed this motion for reconsideration and/or application for determination of finality. This court must now address whether the order allowing plaintiff to move forward in a civil suit was proper.

Under Pennsylvania law, if an employee receives an injury that is compensable under the Workers’ Compensation Act, then the compensation he or she is entitled to under the Act is the exclusive remedy available. See O’Donnell v. R.M. Shoemaker & Co., 816 A.2d 1159, 1162 (Pa. Super. 2003) citing Albright v. Fagan, 448 Pa. Super, 395, 399, 671 A.2d 760, 762 (1996); see also, 77 Pa.C.S. §481(a). For an injury to be compensable under the Act the employee must have been acting in the course and scope of his or her employment as defined in 77 Pa.C.S. §411. Therefore, it is necessary for this court to determine whether plaintiffs were acting within the course and scope of their employment when the deadly car accident occurred.

Pennsylvania courts recognize the “coming and going rule,” which generally states that injuries sustained while traveling to or from work are not compensable under the Workers’ Compensation Act because the employee is not engaged in activities considered within the course of his or her employment. See Williams v. W.C.A.B. (Matco Electric Co.), 721 A.2d 1140, 1141 n.2 (Pa. Commw. 1998), citing Biddle v. W.C.A.B. (Thomas Mekis & Sons Inc.), 539 Pa. 343, 346, 652 A.2d 807, 808-809 (1995); Bechtel Power Corp. v. W.C.A.B. (Postlethwait), 167 Pa. Commw. 544, 553-54, 648 A.2d 1266, 1271 (1994), alloc. denied, 540 Pa. 585, 655 A.2d 516 (1995). However, the “coming and going rule” is not a complete bar to recoveiy under the Act. Rather, Pennsylvania courts have acknowledged four exceptions, which, if met, allow the injured employee to obtain compensation under the Act. These exceptions are:

(1) The employment contract included transportation to and from work;

(2) The employee has no fixed place of work;

(3) The employee is on special assignment for the employer; or

(4) Special circumstances exist, demonstrating the employee was furthering the business of the employer. See Peer v. W.C.A.B. (B & W Construction), 94 Pa. Commw. 540, 544, 503 A.2d 1096, 1098 (1986).

The crux of each party’s position relies on the interpretation of these exceptions. Plaintiff Kerr contends that none of the exceptions are applicable. Rather, plaintiff Kerr asserts that the transportation offered by defendant Eckerd fits within the definition of a “ridesharing agreement” and, therefore, controlled by 55 Pa.C.S. §695.1 et seq.

Additionally, plaintiff contends that Mr. Kerr had a fixed place of employment and, at the time of the accident, no special circumstances existed showing Mr. Kerr was furthering the business of the employer. Defendant Eckerd, on the other hand, argues that (1) Mr. Kerr did not have a fixed place of employment because he would remain in one location for a very short time before moving to a different location; (2) Mr. Kerr, as part of his employment, was provided transportation to and from assigned locations; and (3) the company-provided transportation allowed the team members to build camaraderie amongst each other, thereby furthering the employer’s business interest.

To this court’s knowledge, there are no cases directly dealing with the issues at hand. Research has uncovered several cases in which a claimant attempted to file a workers’ compensation claim and the court analyzed the Ridesharing Act to see whether recovery under the Workers ’ Compensation Act was allowed. See Williams v. W.C.A.B. (City of Philadelphia), 850 A.2d 37 (Pa. Commw. 2004); Bensing v. W.C.A.B. (James Morrissey Inc.), 830 A.2d 1075 (Pa. Commw. 2003); Zafran v. W.C.A.B. (Empire Kosher Poultry Inc.), 713 A.2d 698 (Pa. Commw. 1998); Geriatric & Medical Centers v. W.C.A.B. (Facey), 167 Pa. Commw. 590, 648 A.2d 1289 (1994); Rite Care Resources v. W.C.A.B. (Davis), 154 Pa. Commw. 336, 623 A.2d 917 (1993); Community Car Pool Service Inc. v. Pennsylvania Public Utility Commission, 111 Pa. Commw. 73, 533 A.2d 491 (1987). However, this court has not found any case in which the injured employee, or those bringing suit on his or her behalf, has attempted to use the Ridesharing Act to remove the claim from the realm of workers’ compensation and into civil litigation. Regardless, this court is of the opinion that the established precedent of this Commonwealth provides enough guidance to properly dispose of the issues presented.

This court believes that the central issue of the case is whether the transportation offered by defendant Eckerd qualifies as a ridesharing arrangement. If such arrangement does qualify, then the exceptions to the “coming and going” rule are irrelevant because 55 P.S. §695.3 clearly states that workers’ compensation “shall not apply to a passenger injured while participating in a ride-sharing arrangement between such passenger’s place of residence and place of employment.” Rather, the Ride-sharing Act eliminates employer-provided transportation from the course and scope of an employee’s employment. On the other hand, if the Ridesharing Act does not apply, then the exceptions to the “coming and going” rule are clearly relevant, as they will determine whether plaintiff’s claim is compensable under the Workers’ Compensation Act. Therefore, this court will first analyze Pennsylvania’s Ridesharing Act.

Under 55 P.S. §695.1(2), a ridesharing arrangement includes “transportation of employees to or from their place of employment in a motor vehicle owned or operated by their employer.” Although this language seems clear and unambiguous, Pennsylvania courts have not been quick to find a ridesharing arrangement was in existence, even though the arrangement seemed to fit neatly into the definition. Rather, each case has been determined on its own unique facts and circumstances.

In Rite Care Resources v. W.C.A.B. (Davis), 154 Pa. Commw. 336, 623 A.2d 917 (1993), the court found that the Ridesharing Act did not operate to preclude an employee from receiving compensation under the Workers’ Compensation Act when an employer-owned van in which she was traveling was involved in an accident en route to an assignment. The court pointed to several factors to support its decision, including: (1) claimant’s participation in the van pool was inevitable, (2) the employer maintained control over the claimant while she was traveling in the van, (3) claimant was required to check in at the employer’s facility; (4) prior to checking in at the employer’s facility, claimant was unaware of her daily assignment; (5) claimant was paid for the time she worked at the convalescent and nursing homes, but not the time for which she traveled in the van; and (6) the van pool was provided for the employer’s benefit. Moreover, the court agreed with the referee’s conclusion that the “employer used its location... to marshal its many employees and then disperse them to various work locations at the convenience and in the interest of the employer... [and] while claimant was being transported in her employer’s van she was not traveling between her home and her employer’s place of business but was instead traveling between her employer’s place of business and claimant’s work location for that particular day.” Id. Thus, the referee concluded, and the Pennsylvania Commonwealth Court affirmed, that the Ridesharing Act did not apply to a passenger under these circumstances.

Similarly, in Empire Kosher Poultry Inc. v. W.C.A.B. (Zafran), 154 Pa. Commw. 276, 623 A.2d 887 (1993), appeal denied, 536 Pa. 648, 639 A.2d 34 (1994), the claimant, a passenger in a co-employee’s vehicle, was injured in an automobile accident while returning home from work. The Workers’ Compensation Appeal Board granted claimant benefits. On appeal the employer argued that claimant’s injury was not compensable under the Act because the accident occurred while claimant was participating in a ridesharing arrangement. The Commonwealth Court disagreed with the employer and affirmed the Workers’ Compensation Board. In reaching its conclusion, the court identified several factors to support its decision:

“[Co-worker’s arrangement with] claimant was not one that can be classified as a car pool or van pool because claimant called upon him for a ride either to or from work sporadically, frequently without advanced notice, and [co-worker] was not in a position to refuse claimant’s requests. In addition, he and claimant did not share the expenses as Empire reimbursed [co-worker] for mileage. Moreover, since [co-worker’s] terms of employment provide for transportation to and from work, [coworker]’s trip home was not in furtherance of his own affairs but was in the course and scope of his employment. Thus, as [co-worker] was not merely en route home from work and his transportation of claimant was in the course and scope of his employment, the use of his automobile to transport claimant on the day of the accident was not simply incidental to his purpose in returning home from work. Therefore, this arrangement does not constitute a ridesharing arrangement and does not preclude benefits under the Worker’s Compensation Act.” Id. at 283, 623 A.2d at 891. (footnote omitted)

Defendants attempt to convince this court that in light of Rite Care Resources and Empire Kosher Poultry Inc., defendant Eckerd did not provide a ridesharing agreement. More specifically, defendants argue that decedent was not traveling between his home and the employer’s place of business, but rather from a pick-up/drop-off point to the employer’s place of business. Defendants contend that this fact alone eliminates the Eckerd-provided van pool from the definition of 55 P.S. §695.1. However this court is not persuaded by this argument. Unlike the claimant in Rite Care Resources:

(1) Decedent was not required to report to the employer’s facility prior to traveling to his assigned work-site.

(2) Decedent was not required to use the van on a daily basis, so his participation in the pool was not unavoidable. For example, decedent was free to determine whether he was going to travel to the worksite in the company-provided vehicle on any given day.

(3) Decedent was aware of his daily assignment without checking in with his employer and, therefore, would have been able to take any transportation he desired to the worksite.

(4) The van pool was provided for the employees’ benefit and not the employer.

(5) The employee was paid not only for the time he worked at the store, but also for travel time minus one hour when traveling by the company-owned van.

(6) The employer did not have real control over the van. For instance, any team member with a valid driver’s license was permitted to drive.

(7) Team members were not required to travel a predetermined route. Rather, they were allowed to take any route they desired.

In light of these significant differences, this court finds that the mere fact that decedent was picked up somewhere other than his home does not eliminate the van pool from the definition under 55 RS. §695.1. In support of this contention, the court points out that unlike the claimant in Rite Care Resources, Mr. Kerr would still be considered as traveling home from work when the accident occurred. To clarify this point, the court identifies the fact that in Rite Care Resources, claimant would be required to return to her employer’s facility from her worksite and retrieve her personal vehicle before traveling home. Thus, in that case, claimant could not be considered to be “coming or going” while traveling in her employer’s vehicle. Conversely, in the case at hand, decedent left the assigned worksite and immediately began his journey home. Although the paid portion of this trip could be considered to be within the course and scope of his employment in light of Empire Poultry Inc., this court’s prior order already determined that he was not being compensated at the time of the accident. Thus, this court finds that significant differences exist between Rite Care Resources and Empire Poultry Inc., and the case at bar that allows this court to reach a different conclusion.

This court finds more persuasion and factual similarity in cases in which the Commonwealth Court has found the Ridesharing Act applicable. In Bensing v. W.C.A.B. (James Morrissey Inc.), 830 A.2d 1075 (Pa. Commw. 2003), the court found that the Ridesharing Act applied to a claimant injured in an automobile accident. Like the decedent in the case at bar, the claimant was required to report to a specific job site until the assigned work was completed and then would be reassigned. Although the employer did not offer company-provided transportation nor reimburse employees for travel expenses, he would notify the employees who lived in a close proximity to one another that they would be working on the same assignment so they could arrange to share the commute expenses. However, the employer did not mandate that the employees participate in the car pool. Finally, the court determined that the facts presented demonstrated that the car pool primarily benefited the employees, not the employer. The court found that these factors distinguished it from Empire Kosher Poultry Inc., and pursuant to section 3 of the Ridesharing Act, the claimant’s injury was not a compensable workers’ compensation claim.

Although there are some facts in Bensing that are distinguishable from the case at hand, this court finds that enough similarities exist that require the same outcome. First, the van pool was optional, not mandatory. Next, the pick-up/drop-off point was strategically located to be a central location to all participants. Therefore, all commuters shared the same travel expense to get to and from the meeting point. Additionally, the van pool primarily benefited the team members, not the employer. Although defendants claim that the transportation arrangement afforded the employer a great benefit because it built camaraderie amongst the team members, this court finds that the monetary incentives, in the form of travel pay as well as the travel expense savings afforded by the van pool, was the primary motivation of the employees when taking advantage of the ridesharing arrangement. This court opines that if building camaraderie and benefiting the employer were the primary goals, defendant Eckerd would have made participation in the van pool a condition of employment. Accordingly, the court upholds its prior decision to allow plaintiff to move forward in her survivor and wrongful death claims against the named defendants. Correspondingly, this court need not address the applicability of the exceptions to the “coming and going” rule, as they are inconsequential under 55 Pa.C.S. §695.3.

In conclusion, this court holds that 55 Pa.C.S. §695.1 et seq. (“ridesharing arrangements”) is applicable and the plaintiff is entitled to move forward with her civil actions.

ORDER

Now, January 31,2007, this case being before the court on the petition for reconsideration and/or application for determination of finality and request for expedited review filed by the defendants, and after consideration of said petition and the various pleadings and briefs filed in response thereto, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) The court incorporates its findings of fact and conclusions of law from its previous vacated order of August 31, 2006 into this order of court and attached opinion.

(2) The motions for summary judgment filed by the defendants at no. 10701 of 2004 and no. 11082 of 2004 are hereby denied.

(3) The motion for partial summary judgment filed by the plaintiff at no. 10701 of 2004 is hereby granted as the decedent David B. Kerr was not acting in the scope and course of his employment at the time of the accident but was instead participating in a ridesharing arrangement and the Workers’ Compensation Act does not bar the case filed at no. 10701 of 2004.

(4) The prothonotary shall serve a copy of this order of court upon counsel of record.

      . At this time, plaintiff Rebeor has submitted no brief in support of his position.

      . Hereinafter, plaintiffs Kerr and Rebeor will be identified as “plaintiffs.” The court will list plaintiffs individually only when necessary and identify as plaintiff followed by their last name.

      . During his deposition, Mr. Danny Gene Davis explained that a project team would work both days and nights during the entire project, depending on the particular task. (See depo. Danny Gene Davis, p. 42, ¶¶ 14-25.)

      . Mr. Davis testified “[Eckerd] pulled vans, van pools out of [a] site to go to a different site.” However, Mr. Davis did not clarify this procedure and it is unclear if the entire team or just selected individuals would be moved to a different location if Eckerd elected to change an assignment. Nor did Mr. Davis explain the duration of the move, i.e., whether it was day-to-day or for the entire length of the project. Also, Mr. Davis gave no indication that there was any intention to move the team members or any individual assigned to the McKnight Road store to a different location before completion.

      . Defendant Eckerd provided a travel pay incentive to encourage all members to ride in the company-leased van. Any member that took personal transportation to the job site would not receive the travel pay. During deposition testimony, Mr. Davis explained that this incentive was provided to build team camaraderie. (See depo. Danny Gene Davis p. 59, ¶¶12-20.)

      . At the time of the accident, there were four team members riding in the company van Mr. David Kerr, Ms. Crystal Carper, Mr. Doug Rebeor, and Mr. Barry Green. As with Mr. Rebeor, Mr. Green suffered treatable injuries. Subsequently, Mr. Green filed workers ’ compensation claims.

      . Ms. Hogue brought the following actions against Ms. Carper’s estate, the Donlen Corporation, Jack Eckerd Corporation, Eckerd Corporation and J.C. Penney Company Inc., which includes three counts pursuant to 20 Pa.C.S. §3373 and 42 Pa.C.S. §8302 (survival action) and three counts of wrongful death in accordance with 42 Pa.C.S. §8301 and Pa.R.C.P. 2202(a). OnNovember 10,2004, plaintiff filed a stipulation to amend caption and dismiss less than all defendants in accordance with Pa.R.C.P. 229, thereby dismissing Donlen Corporation, Jack Eckerd Corporation and J.C. Penney Inc. as named defendants. That same day, President Judge Dominick Motto of this court entered an order dismissing these defendants under Pa.R.C.P. 229 and ordering the prothonotary to mark the caption to read as currently shown.

      . The order issued by this court referenced the payroll ledger, which indicated plaintiff Kerr was paid from 7 p.m. August 27, 2002 until 8:30 a.m. August 28, 2002. Thus, this court concluded the accident occurred approximately 46 minutes after plaintiff Kerr’s compensation ended.

      . 77 Pa C.S. §§1-2626.

      . 77 Pa.C.S. §481(a) states, “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.”

      . 77 Pa.C.S. §411 states, “The term ‘injury arising in the course of his employment’... shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; nor shall it include injuries sustained while the employe is operating a motor vehicle provided by the employer if the employe is not otherwise in the course of employment at the time of injuiy; but shall include all other injuries sustained while the employe is actually engaged in furtherance of the business or affairs of the employer, whether on the employer’s premises or elsewhere ....”

      . Plaintiff Rebeor has filed an action only against defendant Daniel S. Soom as administrator of the estate of Crystal Carper. Plaintiff Rebeor’s suit is based on negligence. The remainder of this opinion will be centered on plaintiff Kerr; however, this court finds that Mr. Rebeor may also proceed with his claim in tort.

      . Although this court finds that it is unnecessary to analyze the exceptions to the “coming and going” rule, it is noted that the court agrees with plaintiff’s position. This court finds that even if the “coming and going” rule was of consequence, no exception is applicable.
      First, the court opines that the transportation provided by Eckerd was not part of decedent’s employment contract. No evidence was produced indicating that employees were required to take the company-provided transportation, nor was there any requirement defendant Eckerd had to continue to provide the transportation. Rather, Eckerd was providing a service designed for employee convenience and transportation savings.

        Next, this court finds that decedent had a fixed place of employment. The evidence demonstrates that the team members traveled to the same location until all assigned work was completed and then moved to a different site. Although Mr. Davis testified that it was possible to remove a member from a site and relocate them to a different store at any time, there was no indication that defendant Eckerd contemplated moving any of these team members prior to the incident. Moreover, even if defendant Eckerd had contemplated relocating decedent prior to the accident, the facts still demonstrate that he was killed while traveling home from his initial assignment. Therefore, this court opines that defendant clearly had a fixed situs.
      Thirdly, at the time of the incident, decedent was not on a special assignment for his employer. He was traveling home in the company-provided van. He was no longer being paid, nor was he providing any service or assistance in furtherance of Eckerd’s business. The court opines that decedent was clearly outside the course and scope of his employment when the accident occurred.
      Finally, no special circumstances existed that demonstrated decedent was furthering Eckerd’s business. As previously noted, this court rejects defendant’s contention that decedent was in furtherance of Eckerd’s business because he was participating in a van pool designed to build camaraderie; rather, decedent was furthering his own interests.
      Thus, this court maintains that no exception to the “coming and going” rule is applicable. Therefore, defendants’ argument that this case should sound in workers’ compensation based on these exceptions is rejected.


source: Caselaw Access Project

author: ZULICK, J,

license: Public Domain

text:
    Maj v. Maj

      C.P. of Monroe County,
    nos. 1205 DR 2003, 8828 CV 2003.

      Elvira LaBarre, for plaintiff.

      Walter John Maj Jr., pro se.
    February 9, 2007
   ZULICK, J,

Walter John Maj Jr. and Geraldine Denise Maj were divorced by decree of this court on March 10, 2006. The decree incorporated provisions of the master’s recommendations for equitable distribution including distribution of real property the parties owned in New Jersey.

Geraldine attempted to enforce the decree by filing an action to enforce a foreign judgment in the Superior Court of New Jersey, Chancery Division in May 2006. Walter opposed enforcement of the decree. The New Jersey Superior Court, the Honorable Ann R. Bartlett, J.S.C. by order of August 4,2006 found that this court had subject matter and in personam jurisdiction but denied the request to enforce the decree on other grounds.

Geraldine then filed a motion for remand to master for additional hearing with this court on October 26, 2006. A rule to show cause was issued to Walter on October 30,2006, to which he did not respond. Geraldine filed a petition for hearing on December 5, 2006. A hearing on the petition was held before the court rather than the master on January 16,2007. Both Walter and Geraldine appeared and testified.

BACKGROUND

The parties were married on May 5,1974 in Somerset County, New Jersey. Geraldine filed for divorce in Monroe County onNovember 5,2003. Service of the divorce complaint was properly made by Geraldine and acknowledged by Walter.

On June 26, 2004, Geraldine filed an amended complaint requesting that a divorce be entered on the grounds of an irretrievable breakdown of the parties’ marriage, and that the court equitably distribute the marital estate. On April 8, 2005, the Honorable Margherita Patti Worthington, J., issued an order compelling Walter to answer interrogatories and permitting an appraisal of the former marital residence. Walter did not comply, for which I found him in contempt of court on September 1, 2005. Walter continued to ignore the discovery orders, which led to an order precluding him from opposing Geraldine’s evidence of values for the marital home in South Bound Brook, New Jersey, and a W&G Distributions/Amold Bread Franchise which was part of the marital estate.

Walter did not file an answer to the divorce complaint, nor did he file an inventory and appraisement or a pretrial statement as required by the Rules of Civil Procedure. A master’s hearing was held onNovember 22,2005. On March 10, 2006, I entered a divorce decree incorporating the recommendations of Divorce Master Daniel P. Corveleyn, Esquire.

When Walter failed to comply with the divorce decree’s distribution of the parties’ real property located in New Jersey, Geraldine filed the action described above in New Jersey to enforce the divorce decree. The motion was denied by Judge Bartlett of the Superior Court of New Jersey, Somerset County, Chancery Division— Family Part. Judge Bartlett entered an opinion and order on August 4,2006 determining that the Monroe County, Pennsylvania Court of Common Pleas (this court) had subject matter jurisdiction of the divorce and in personam jurisdiction of Walter Maj in this divorce action. Flowever, the New Jersey court refused to enforce the divorce decree saying “it appears that vital documents were not submitted to the Pennsylvania court.” Decision of New Jersey Superior Court. The New Jersey trial court went on to state:

“This court finds that the parties’ October 30, 2001 agreement, submitted by the defendant in this action, and pertaining to the division of property, the Arnold Bread franchise and credit card debt, was not submitted by the plaintiff in the original complaint in divorce filed on November 5,2003. Therefore, it appears that this agreement was not considered by the master in drafting of the master’s report. This court does not have the authority to amend that judgment but equitable principles, specifically the doctrine of unclean hands, preclude enforcement of the Pennsylvania judgment. The defendant should seek remedy in the Court of Common Pleas of Monroe County, Pennsylvania, where the divorce decree and master’s report was originated.” Id.

FINDINGS OF FACT

(1) Walter Maj resides at 12 Kennedy Avenue, South Bound Brook, New Jersey.

(2) He was served with a copy of the divorce complaint by United States certified mail, on November 12, 2003.

(3) He received notice of the divorce master’s hearing held on November 22,2005, but did not attend. N.T. 10.

(4) The parties entered into a postnuptial agreement dated October 31, 2001. Plaintiff’s exhibit 1.

(5) The parties’ agreement provided in paragraph 1 that Walter would pay for renovations and repairs to their South Bound Brook, New Jersey house as needed and in September 2003 would put the house up for sale. He further agreed to pay the mortgage, taxes and “all living expenses while living in South Bound Brook.” Agreement, paragraph 1.

(6) The parties’ agreement provided in paragraph 2 that Geraldine would live in their Analomink, Pennsylvania house. Walter would be responsible for payment of the mortgage and taxes on the Analomink house, and the equity loan against the South Bound Brook house, while Geraldine lived in the Analomink house. Geraldine agreed to move out of the Analomink house within two months of the sale of the New Jersey house, and to transfer title to the Analomink house to Walter. Agreement paragraph 2.

(7) The parties’ agreement provided in paragraph 3 that Walter would buy Geraldine’s interest in the Best Foods-Arnold Bread franchise over a period of time. These payments were to begin with $500 per month payments from Walter to Geraldine over a period of five years.

(8) Walter did not make the renovations necessary to sell the South Bound Brook house. N.T. 10.

(9) Walter stopped paying the mortgage payments and the taxes on the Analomink house in December 2003, and the parties eventually sold it to third parties on February 27,2004. N.T. 13,23; see plaintiff’s exhibit 1 from the master’s hearing.

(10) Walter never put the South Bound Brook house up for sale, and was still living in the house at the time of the hearing on January 16, 2007.

(11) Walter made some payments of $500 per month to Geraldine for the Arnold Bread franchise as required by the agreement, but stopped making these payments in violation of the terms of the written agreement. N.T. 24.

(12) By the time this divorce action was filed on November 5, 2003, Walter was not in material compliance with the written agreement of October 31, 2001, and neither party was insisting on enforcement.

(13) Neither party took any action in this court to enforce the agreement of October 31, 2001.

(14) Walter filed an answer and counterclaim in the Superior Court of New Jersey, Chancery Division— Family Part, Somerset County stating in paragraph 3 of the counterclaim that the parties amended the written agreement of October 31, 2001 by a later writing dated May 28, 2003.

(15) The parties did not sign the alleged amendment of May 28,2003, and never reached an agreement on its terms. N.T. 24.

(16) The parties had no valid agreement addressing the distribution of their marital property in effect at the time of the master’s hearing on September 1, 2006.

DISCUSSION

Under Pennsylvania law, a petition to modify a divorce must be filed within 30 days of the date of the decree. 23 Pa.C.S. §3332, provides as follows:

“Section 3332. Opening or vacating decrees

“A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. §5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.” 23 Pa.C.S. §3332.

The section of the Judiciary Act referred to in this statute, 42 Pa.C.S. §5505, provides that:

“Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.” 42 Pa.C.S. §5505.

Here, neither party requested reconsideration of the decree and the decree was not modified or rescinded. It is thus a final judgment of this court.

In order to consider untimely-filed economic claims, the divorce decree must be either opened or vacated. Melton v. Melton, 831 A.2d 646, 651 (Pa. Super. 2003). Either party had 30 days after the date of the decree to seek to open the decree on grounds that the decree was procured by intrinsic fraud or that there was new evidence relating to the cause of action which would sustain the attack upon its validity. No such petition was filed, so that route to challenge the decree has been eliminated.

The parties have five years from the date of the decree to seek to open the decree on grounds of extrinsic fraud. In McEvoy v. Quaker City Cab Co., 267 Pa. 527, 110 A. 366 (1920), our Supreme Court first distinguished intrinsic fraud from extrinsic fraud:

“By the expression ‘extrinsic or collateral fraud’ is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. Among these are the keeping of the defeated party away from court by false promise of compromise, or fraudulently keeping him in ignorance of the action. Another instance is where an attorney without authority pretends to represent a party and corruptly connives at his defeat, or where an attorney has been regularly employed and corruptly sells out his client’s interest. The fraud in such case is extrinsic or collateral to the question determined by the court. The reason for the rule is that there must be an end to litigation; and, where a party has had his day in court and knows what the issues are, he must be prepared to meet and expose perjury then and there. Pico v. Cohn, 91 Cal. 129, [25 P. 970 (1891)]. Where the alleged perjury relates to a question upon which there was a conflict, and it was necessary for the court to determine the truth or falsity of the testimony, the fraud is intrinsic and is concluded by the judgment, unless there be a showing that the jurisdiction of the court has been imposed upon, or that by some fraudulent act of the prevailing party the other has been deprived of an opportunity for a fair trial. Bleakley v. Barclay, 75 Kansas 462 [89 P. 906 (1907)].” Justice v. Justice, 417 Pa. Super. 581, 588-89, 612 A.2d 1354, 1358-59 (1992), quoting Fenstermaker v. Fenstermaker, 348 Pa. Super. 237, 243, 502 A.2d 185, 188 (1985), quoting McEvoy v. Quaker City Cab Co., 267 Pa. 527, 536, 110 A. 366, 368 (1920).

Here neither party contended in the hearing before me on January 16, 2007 that there was intrinsic or extrinsic fraud involved in Geraldine’s failure to introduce or rely upon the agreement of October 31,2001. Both parties conceded that the agreement of October 31, 2001 was superseded by events and that it was no longer controlling of their economic affairs at the time of the master’s hearing.

Walter testified on January 16, 2007 that the parties had reached another agreement, N.T. 19, but he took no action to present this evidence to this court during the divorce proceedings. He presented no such signed agreement as evidence in the January 16,2007 hearing either. Geraldine testified credibly that no such agreement existed. N.T. 24. The parties’ counsel exchanged numerous letters (14) during settlement negotiations, the latest of which, dated September 28,2006 from Thomas J. Welch-man, Esquire, Walter’s New Jersey counsel, indicated that no agreement had been reached. N.T. 19; plaintiff’s exhibit 18. In short, there was no competent evidence of extrinsic fraud offered by Walter.

Geraldine has requested relief from this court to assist in the determination of whether she exhibited fraud or ran afoul of the equitable doctrine of “unclean hands” by not introducing the 2001 agreement during the master’s hearing. This was the basis for the Somerset County, New Jersey ruling which refused to enforce the divorce decree. I address this issue as it is within the equity powers and jurisdiction of this court. See 23 Pa.C.S. §§3104, 3323(f). The inevitability of further litigation also renders a declaratory judgment appropriate under Pennsylvania law. Stilp v. Commonwealth, 910 A.2d 775, 786 (Pa. Commw. 2006); 42 Pa.C.S. §§7531-7541.

As Geraldine’s brief correctly notes, marital settlements are governed by contract law, Vaccarello v. Vaccarello, 563 Pa. 93, 757 A.2d 909, 913 (2000), and so breaches can render them invalid, Harrison Estate, 456 Pa. 356, 359, 319 A.2d 5, 6 (1974). Such settlements are valid (prior to a breach by either party) as long as they are fair and equitable, Lurie v. Lurie, 246 Pa. Super. 307, 370 A.2d 739 (1976), and include adequate consideration, Commonwealth ex rel. Jablonski v. Jablonski, 179 Pa. Super. 498, 118 A.2d 222 (1955).

The Pennsylvania Superior Court most recently dealt with the issue of whether a breach invalidated an ante-nuptial agreement in In re O’Brien, 898 A.2d 1075 (2006). The court held: “[bjecause the agreement plainly sets out the parties’ reliance on the original will, and because husband revoked the original will and put in its place a will with different terms, we conclude that the trial court did not err in finding that husband failed to abide by the terms of the agreement.” Id. at 1083.

Full and fair performance is generally required in the case of an antenuptial agreement or breach invalidates the whole. In re Estate of Cummings, 493 Pa. 11, 16, 425 A.2d 340, 342 (1981), citing Harrison, supra. Although Cummings dealt with an antenuptial agreement, its reasoning applies here, even if Walter did not concede that the agreement in question was no longer valid. Since Walter admitted having breached at least two provisions of the October 31,2001 agreement, N.T. 19, it would be invalidated as was the agreement in Cummings.

Finally, Geraldine did not acquire unclean hands as a result of not disclosing the agreement in the master’s hearing. Pennsylvania courts have described the principle of unclean hands as follows: “[a] court may deprive a party of equitable relief where, to the detriment of the other party, the party applying for such relief is guilty of bad conduct relating to the matter at issue----The doctrine of unclean hands requires that one seeking equity act fairly and without fraud or deceit as to the controversy in issue.” County of Luzerne v. Luzerne County Retirement Board, 882 A.2d 531, 536 (Pa Commw. 2005), citing Terraciano v. PennDOT, 562 Pa. 60, 69, 753 A.2d 233, 238 (2000). Since the agreement in question was invalid according to both the parties and Pennsylvania law, Walter suffered no detriment and Geraldine did not act unfairly in not providing it to the court.

CONCLUSIONS OF LAW

(1) The agreement of October 31,2001 was breached by Walter before this divorce action was begun.

(2) The Analomink property was sold by the parties shortly after this divorce action was begun, so the agreement as written could not be enforced by this court.

(3) Geraldine did not commit extrinsic or intrinsic fraud by failing to introduce the defunct agreement of October 31, 2001 during the master’s hearing.

(4) At the time of the master’s hearing on September 1,2006, the parties’ agreement of October 31,2001 was no longer a binding agreement and was therefore null and void.

ORDER

And now, February 9,2007, it is ordered that plaintiff Geraldine Denise Maj’s request to have the parties’ October 31, 2001 agreement declared null and void is granted. That agreement is hereby determined to have no force or effect. The divorce decree of March 10,2006 is not modified and the defendant is directed to comply with its terms.

      . Section 3104 Bases of jurisdiction, provides as follows:
      “(a) Jurisdiction — The courts shall have original jurisdiction in cases of divorce and for the annulment of void or voidable marriages and shall determine, in conjunction with any decree granting a divorce or annulment, the following matters, if raised in the pleadings, and issue appropriate decrees or orders with reference thereto, and may retain continuing jurisdiction thereof:
      “(1) The determination and disposition of property rights and interests between spouses, including any rights created by any antenuptial, postnuptial or separation agreement...
      “(4) Any property settlement agreement involving any of the matters set forth in paragraph (1), (2) and (3) as submitted by the parties ....”
      Section 3323(f) provides as follows:
      “In all matrimonial causes, the court shall have foil equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interest of the party or to effectuate the purposes of this part and may grant such other relief or remedy as equity and justice require against either party or against any third person over whom the court has jurisdiction and who is involved in or concerned with the disposition of the cause.”


author: WETTICK, A.J.,

text:
    Sabo v. Worrall

      C.P. of Allegheny County,
    no. GD06-005888.

      Ralston S. Jackson, for plaintiff.

      John W Jordan IV, for defendant.
    January 24, 2007
   WETTICK, A.J.,

Plaintiff’s petition to open judgment of non pros is the subject of this opinion and order of court.

Plaintiff filed a complaint on June 16,2006. No certificate of merit was filed with respect to any defendant. On August 17,2006, defendants filed a praecipe for the entry of a judgment of non pros pursuant to Pa.R.C.P. 1042.6.

On August 25,2006, plaintiff served a petition to open the judgment, and on September 7, 2006, her attorney served an affidavit in support of the petition. The petition and the affidavit contain averments that plaintiff’s attorney received a report from Dr. Gary J. Sprouse on February 27, 2006 stating that the care rendered by defendants fell below the standard of care and caused decedent’s injuries. The petition and the affidavit of plaintiff’s counsel also contain averments that within several days after the complaint was filed, certificates of merit were prepared and placed in the file. After counsel reviewed the certificates of merit, he believed that they were filed with the prothonotary. He had assumed that they had been filed by his paralegal until he received notice of the entry of the non pros judgments.

Prior to the ruling of the Pennsylvania Supreme Court in Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006), it was my practice to open a judgment of non pros entered for failure to file a certificate of merit, if the attorney for the petitioner could establish that he or she had obtained, prior to the date upon which a judgment of non pros could be entered for failure to file a certificate of merit, a written statement from an appropriately licensed professional that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. This practice was consistent with the opinion of the Superior Court in Harris v. Neuburger, 877 A.2d 1275 (Pa. Super. 2005). In that case, prior to filing a medical malpractice action, the attorney for the plaintiff had delivered to the defendants’ counsel an expert report, which apparently complied with Pa.R.C.P. 1042.3(a)(1). The court ruled that since the petitioner had satisfied the purpose of Rule 1042.3, the petitioner should not be barred from his day in court.

Under my practice, a plaintiff who sought to have a judgment of non pros opened on the ground that the petitioner’s attorney had fulfilled the underlying purpose of the rule needed to establish that he or she had obtained, prior to the expiration of the 60-day period, a report complying with the requirements of Rule 1042.3(a)(1). This meant that the petitioner was required to produce the expert report and the defendant could challenge the report on the ground that it would not support the filing of a certificate of merit.

In Womer v. Hilliker, supra, the Pennsylvania Supreme Court addressed a fact situation almost identical to the fact situation in Harris v. Neuberger, supra. The Supreme Court ruled that the trial court erred in opening a Rule 1042.6 judgment of non pros because the petitioner had not complied with the requirement that a certificate of merit be filed within 60 days after the filing of the complaint.

In Womer, the court rejected the argument that a judgment of non pros may be opened where the purpose for the rule had been satisfied. Consequently, my practice of opening a judgment of non pros where the petitioner could show that he or she had satisfied the purpose of Rule 1042.3 is inconsistent with Womer.

In Womer, the Supreme Court stated:

“This does not mean, however, that a plaintiff who, like Womer, fails to file a Rule 1042.3 COM and against whom a Rule 1042.6 judgment of non pros is entered, has no avenue by which to save his action. Under Pa.R.C.P. 3051, which allows a trial court to grant relief from a judgment of non pros, such a plaintiff has the opportunity to demonstrate that his failure to follow Pa.R.C.P. 1042.3 should be excused. In that the nature of an appeal under Pa.R.C.P. 3051 is equitable, and is a matter of grace and not of right, Pa.R.C.P. 3051 is then yet another means by which Pa.R.C.P. 1042.3 is subject to equitable considerations.” 908 A.2d at 279. (citation omitted)

In Womer, the plaintiff could not comply with the requirement of Pa.R.C.P. 3051 that there be a reasonable explanation or legitimate excuse for the inactivity or delay because the Supreme Court ruled that Womer took no steps to comply with Rule 1042.3. In the present case, on the other hand, the facts as alleged by plaintiff’s counsel support a finding that plaintiff’s counsel was aware of the requirements of Rule 1042.3 and made an effort to comply with these requirements. Thus, petitioner must have the opportunity pursuant to Rule 3051 to establish that there is a reasonable explanation or legitimate excuse for the failure to file a certificate of merit. This raises both questions of fact and questions of law because it is my impression that the case law governing when the failure of an attorney to timely file a complaint (or a responsive pleading to a complaint) will be excused is very fact specific. The parties will brief this issue.

Also, because of my prior rulings that the requirement of a reasonable excuse requires a showing that the written statement obtained prior to the entry of a judgment of non pros will support the filing of a certificate of merit, there is a second issue of fact and of law. As to this issue, the defendants should have the opportunity to submit deposition testimony and a brief in support of their position that the report upon which the plaintiff’s counsel relies will not support the filing of a certificate of merit.

For these reasons, I enter the following order of court:

ORDER

On January 24, 2007, it is hereby ordered that a rule is issued to show cause why plaintiff’s petition to open judgment of non pros should not be granted. Defendants shall file an answer within 20 days. This petition shall be decided under Pa.R.C.P. 206.7. Depositions shall be completed within 60 days of this date. Plaintiff’s brief on the Rule 3051 issue and defendants’ brief on the sufficiency of the expert’s report are due 15 days thereafter. Reply briefs are due seven days after that. Argument will be held on April 5, 2007 at 1:30 p.m. in courtroom 815 of the City-County Building, Pittsburgh, PA.

      . The November 6, 2006 deposition of Dr. Sprouse supports this allegation.

        . I imposed this requirement because the excuse offered by the plaintiff’s counsel is that he or she was in a position to file, prior to the entry of the judgment of non pros, a certificate of merit based on an appropriately written statement filed by an appropriately licensed professional.

      . This case differs from the case in which the petitioner, who has not obtained a written statement from an appropriately licensed professional, did not file a motion to extend the time for filing the certificate of merit pursuant to Rule 1042.3(d) prior to the entry of the judgment. In that case the petitioner cannot establish a reasonable explanation or legitimate excuse for the inactivity because the petitioner did not mistakenly believe that he or she had filed a certificate of merit and can seldom offer a reasonable explanation as to why the petitioner did not, within the 60-day period, file a motion to extend the time for filing the certificate of merit. Moore v. John A. Luchsinger, P.C., 862 A.2d 631 (Pa. Super. 2004).

      . Defendants contend that a written statement of Dr. Sprouse, an internist, cannot support a certificate of merit as to causes of action against a board certified orthopedic surgeon (Dr. Worrall) or a board certified emergency physician (Dr. Desilva). See Rule 1042.3(a)(1), which requires a written statement from “an appropriately licensed professional,” which in a note accompanying this rule is defined as an expert that would be permitted to testify at trial.


text:
    Fortune v. Hamilton

      C.P. of Monroe County,
    no. 1799 Civil 2005.

      David Heisler, for plaintiffs.

      Paul Lees, for defendants.
    January 17, 2007
   ZULICK, J,

This matter is before the court on a motion for summary judgment filed by defendants Pamela Hamilton and Muriel Berry, co-trustees of the Alfred Berry estate. Plaintiff Walter Fortune has brought suit for injuries he allegedly sustained while working on the property owned by the trustees. Fortune and his wife, Judy, own a cleaning business known as J. W. Building Maintenance Inc., doing business as Judy’s Cleaning Services (JCS). Mr. Fortune has worked in the business since 1994. Walter Fortune deposition, pp. 27-33, 51.

Trustees owned a property at 36 Hallowood Acres in Price Township, Monroe County, Pennsylvania. Mrs. Berry resided there until she moved out of the property on July 14, 2003. Ms. Hamilton never lived there but visited from time to time. While a resident, Mrs. Berry allowed the property to fall into disrepair, including, inter alia, allowing her pets to defecate on her deck. On or about July 11, 2003, JCS and trustees entered into a contract for cleanup services on the property. The trustees specifically employed JCS to clean and inspect the property and notify the trustees of any needed repairs. See invoice no. 455411, dated July 11,2003. The contract for the cleaning further specifies that the job was “considered hazardous with significant health risks.” Id.

On July 20 and 21, 2003, Mr. Fortune power-washed the deck at the property as part of his contracted duties. Before he washed the deck, Mr. Fortune and Mrs. Hamilton had been on the deck on several occasions, discussing the work that needed to be done, including the removal of accumulated debris from the deck. Id. at 82-83. Mr. Fortune recommended replacing wood on the older section of the deck to make it match the newer section of the deck, making it aesthetically more presentable. Id. at 87-88. When Mr. Fortune power-washed the deck, the wood splintered. Mr. Fortune realized that it had a softer grain than he initially believed. Id. at 108. After he finished power-washing the deck, Mr. Fortune did not take any additional safety measures when walking on the deck. Id. at 106-107.

On July 22, 2003, Mr. Fortune assisted Mrs. Hamilton’s minor son David with a task which led to both Mr. Fortune and David walking out on the deck. On his way back from assisting David, Mr. Fortune’s left leg fell through the deck. Id. at 121-25. He alleges that the fall caused him to suffer injuries to his left foot, right arm, and right shoulder.

The Fortunes filed suit against the trustees on March 11, 2005, alleging negligence due to failure to maintain the deck and failure to warn Mr. Fortune of its hazardous condition. The Fortunes were deposed on October 20, 2005. On June 22,2006, trustees filed an answer and new matter, denying liability and asserting the defenses of statute of limitations, statute of frauds, contributory negligence and/or assumption of risk, comparative negligence, and failure to state a cause of action. On June 22, 2006, the trustees filed a motion for summary judgment. Both parties filed briefs and appeared before the court for oral argument on August 7, 2006. On September 15, 2006, the court gave the Fortunes leave to supplement the record by taking the deposition of Muriel Berry, co-trustee, within 60 days. OnNovember 8,2006, on petition, the Fortunes were given a 30-day extension of time to supplement the record. The Fortunes filed a supplemental brief on December 14,2006, advising the court that they did not intend to supplement the record by taking Muriel Berry’s deposition due to Ms. Berry’s health problems.

DISCUSSION

Summary judgment may be granted under Pa.R.C.P. 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 Company v. Pike Coal Company, 488 Pa. 198, 202-204, 412 A.2d 466, 468-69 (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., 442 Pa. Super. 476, 480, 660 A.2d 83, 85 (1995) (citation omitted); Aetna Casualty and Surety Company v. Roe, 437 Pa. Super. 414, 419-20, 650 A.2d 94, 97 (1994) (citations omitted); Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 98-99, 644 A.2d 1251, 1254 (1994) (citation omitted); Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 558, 618 A.2d 945, 950 (1992), allocatur denied, 536 Pa. 630, 637 A.2d 290 (1993). (citation omitted)

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (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., 438 Pa. 194, 264 A.2d 597 (1970); Aetna Casualty and Surety Company v. Roe, supra; AccuWeather v. Prospect Communications, supra; Stidham v. Millvale Sportsmen’s Club, supra. Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Thompson, supra; Accu-Weather v. Prospect Communications, supra (citing Overly v. Kass, 382 Pa. Super. 108, 111, 554 A.2d 970, 972 (1989));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, supra.

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, 451 Pa. 146, 303 A.2d 826 (1973). The court also must accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mutual Companies, 294 Pa. Super. 577, 440 A.2d 616 (1982); Ritmanich v. Jonnel Enterprises Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971).

The material facts summarized above are undisputed. The trustees seek summary judgment based upon their allegation that those facts cannot support recovery for the Fortunes as a matter of law. The key issues in this matter are what, if any, duty the trustees owed to Mr. Fortune, and if the trustees did owe a duty, whether their conduct placed them in breach of that duty. As described above, the trustees specifically contracted with JCS to perform cleaning services and to notify the trustees of any repairs necessary to prepare the house for sale. Mr. Fortune was skilled in cleaning services and preparing houses for sale, although he did not perform skilled repair work, such as plumbing or electrical service. Fie contracted with others for those services when necessary. Consequently, an independent contractor standard is appropriate as a matter of law. See Lieberger v. Walter Co., 74 D.&C.4th 270, 281 (Fayette Cty. 2005) (“Krumanacker Electric’s status as an independent contractor changes, somewhat, the duty that Coolspring owes to the plaintiff’).

As a rule, the duty owed by an owner of land to a visitor is dependent on that visitor’s status. As regards to an independent contractor, like Mr. Fortune, “[a] landowner owes a duty to warn an unknowing independent contractor of existing dangerous conditions on the landowner’s premises where such conditions are known or discoverable to the owner.” Colloi v. Philadelphia Electric Company, 332 Pa. Super. 284, 291, 481 A.2d 616, 619 (1984). However, the Pennsylvania Supreme Court has recognized that a possessor of land is generally insulated from liability to an invitee if it is reasonable for the owner to believe that the dangerous condition would be obvious to and discovered by his invitee. Howell v. Clyde, 533 Pa. 151, 156, 620 A.2d 1107, 1109 (1993), citing Palenscar v. Bobb Inc., 439 Pa. 101, 266 A.2d 478 (1970). Further, a possessor has no obligation to warn an independent contractor of dangers that would be at least as obvious to the contractor as to the owner. Gutteridge v. A.P Green Services Inc., 804 A.2d 643, 657 (Pa. Super. 2002), citing Colloi, 481 A.2d at 620. Indeed, as a general rule, when a possessor of land “turns the work over to an independent contractor with experience and know-how, who selects his own equipment and employees, the possessor of land has no further liability in connection with the work to be done.” Brletich v. United States Steel Corporation, 445 Pa. 525, 532, 285 A.2d 133, 136 (1971). Pennsylvania courts have synthesized these principles to explain, “The question of whether a landowner owes duty to warn an independent contractor of dangerous conditions on the premises turns on whether the owner possesses ‘superior knowledge’ or information which places him in a better position to appreciate the risk posed to the contractor or his employees by the dangerous conditions.” Gutteridge, 804 A.2d at 657-58, citing Colloi, 481 A.2d at 620.

In Palenscar v. Bobb, the plaintiff was hired to perform electrical repair at a building that was scheduled to be condemned. The electrical repairs were a stop-gap measure and the business owner had no intention of replacing the entire electrical system. Palenscar was aware of the danger of the electrical system, and the court concluded that the business owner was not liable for the burns Palenscar suffered as a result of performing this work. Palenscar, 439 Pa. 101,266 A.2d478. The court emphasized that Palenscar had been specifically hired to remedy electrical problems and, therefore, was aware of the dangerous condition. In such a situation, the owner “is under no duty to protect [contractors/invitees] against risks arising from or intimately connected with defects of the premises which the contractor has undertaken to repair.” Id. at 106, 266 A.2d at 481.

Moreover, “Pennsylvania law imposes no general duty on property owners to prepare and maintain a safe building for the benefit of a contractor’s employees who are working on that building. Rather, our law generally insulates property owners from liability for the negligence of independent contractors and places responsibility for the protection of the contractor’s employees on the contractor and the employees themselves.” Chenot v. A.P. Green Services, 895 A.2d 55, 63-64 (Pa. Super. 2006). This is because contractors are the instruments chosen by property owners to discover and repair dangerous conditions and protect others against them. See Atkins, supra at 353, 414 A.2d at 104-105.

A property owner is nonetheless liable to independent contractors and their employees for injuries suffered on the job if the injury is due to a “peculiar risk” or “special danger.” Chenot, supra, citing Philadelphia Electric Co. v. James Julian Inc., 425 Pa. 217, 228 A.2d 669 (1967). Liability due to peculiar risk is appropriate when (1) a risk is foreseeable to the employer of an independent contractor at the time the contract is executed (that is, if a reasonable person in the position of the employer would foresee the risk and recognize the need to take special measures); and (2) the risk is different from the usual and ordinary risk associated with the general type of work done. Id. This doctrine is to be construed narrowly. Id, citing Rudy v. A-Best Products Co., 870 A.2d 330, 335 (Pa. Super. 2005), appeal denied, 584 Pa. 714, 885 A.2d 533 (2005).

Here, the risk of injury due to the state of disrepair of the home is not different from the usual and ordinary risk associated with repairing a decrepit home. Moreover the trustees clearly did not foresee the risk; Ms. Hamilton permitted her son onto the deck just minutes earlier, which she would not have done if she had understood the deck as dangerous. Consequently, the peculiar risk exception is not appropriate in this case.

The trustees specifically hired Mr. Fortune to clean the property and advise the trustees of any repairs necessary to prepare the property for sale. At the time of Fortune’s injury, neither of the trustees lived at the property. Mrs. Berry, the prior resident, had left the property and moved to a retirement community because she was unable to care for the home. Mr. Fortune said of Mrs. Berry, “I thought she was frankly in and out of a state of reality.” Walter Fortune deposition, at 51. Mr. Fortune admits further that Pamela Hamilton had no knowledge regarding the condition of the deck that he himself did not have. Id. at 133. He also admits that he had stated the deck needed to be replaced for aesthetic reasons, id. at 87, and that some of the wood was starting to “shred and stuff,” id. at 102, and should be replaced “for safety’s sake,” id. at 105. His observations, and Mrs. Berry’s health problems, demonstrate that the property owners did not have superior knowledge under Gutteridge, supra; rather, Mr. Fortune was in a superior position to evaluate the risks of walking across the deck.

Mr. Fortune was specifically hired to identify and address the need for repairs that led to his injury, as in Palenscar, and had at least as much knowledge of the dangers as trustees, since he was an expert in home repair and had correctly identified weaknesses in the deck. Considering the pleadings and the evidence, including plaintiff’s deposition, there is no genuine issue of material fact. The agreed-upon facts lead to the conclusion that trustees did not breach any legal duty to Mr. Fortune. Therefore, they cannot be liable for Mr. Fortune’s injury as a matter of law and the claim for negligence fails.

Finding no issue as to any material fact and recovery barred as a matter of law, I hold that defendants are entitled to summary judgment pursuant to Pennsylvania Rule of Civil Procedure 1035.2.

ORDER

And now, January 17, 2007, it is ordered that defendants’ motion for summary judgment is granted and judgment is entered in favor of defendants.

      . This differs from the general standard for invitees, which holds “A possessor of land is subject to liability for physical harm to his invitees by a condition on the land if, and only if, he
      “(a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees, 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 danger.” Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980), quoting Restatement (Second) of Torts, §343.