author: ZULICK, J.,

text:
    Indymac Bank F.S.B. v. Vicuna

      Andrew J. Soven, for plaintiff.

      John P. O ’Boyle, for defendant.
    March 1, 2007
   ZULICK, J.,

This matter arises on defendant Klebher O. Vicuna’s petition to amend his answer and new matter in this mortgage foreclosure action filed by plaintiff Indymac Bank F.S.B. Mr. Vicuna’s counsel has recently become aware that Mr. Vicuna has an ongoing federal lawsuit against Indymac related to the manner in which they procured the mortgage Indymac now seeks to foreclose. That suit is one of 10 which have been joined in the Middle District of Pennsylvania docketed at 05-CV-01515. See exhibit 1. All 10 plaintiffs allege a conspiracy of fraud perpetrated by Indymac, property appraisers, and others to sell them mortgages considerably above market value. In at least this case, the alleged defrauders allegedly sought to take advantage of their customers’ limited understanding of the English language and the American real estate market.

Mr. Vicuna secured a mortgage on November 21,2001 from Indymac to purchase a property and construct a home at 33 Terrace Drive, Effort, Monroe County, Pennsylvania. He located the property after responding to advertising in the New York metropolitan area by area builders.

In 2003, Mr. Vicuna filed a complaint with the Pennsylvania Attorney General’s Office, now docketed at Commonwealth v. Parisi, no. 612 MD 2004. On April 27,2004, Indymac initiated foreclosure proceedings. On July 29,2005, Mr. Vicuna filed a federal lawsuit alleging violations of the Federal Racketeering and Enterprise. Corruption Act, Pennsylvania Unfair Trade Practices and Consumer Protection Law, et al.

Thereafter, Mr. Vicuna’s attorney in this case fell ill and was replaced by current counsel who filed an answer which did not reflect the allegations included in the federal complaint. Mr. Vicuna now seeks to amend his answer and new matter to include the allegations in his ongoing federal litigation. Indymac objects on the grounds that the amendment is futile and would create duplicative litigation.

The parties have submitted briefs and appeared before me for oral argument on February 5,2007. After careful attention to the various legal issues involved, I find that the amendment in question is not futile and so grant Mr. Vicuna’s motion.

DISCUSSION

Amendments to pleadings are generally liberally allowed under Pa.R.C.P. 1033 (“[a] party ... by leave of court, may at any time . . . amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new . . . defense”). Stalsitz v. Allentown Hospital, 814 A.2d 766, 776 (Pa. Super. 2002), appeal denied, 578 Pa. 717, 854 A.2d 968 (2004). Amendments should generally be permitted “to secure a determination of cases on their merits,” Capobianchi v. BIC Corporation, 446 Pa. Super. 130, 134, 666 A.2d 344, 346 (1995), citing Gallo v. Yamaha Motor Corp., 335 Pa. Super. 311, 313, 484 A.2d 148, 150 (1984), unless a positive rule of law is in opposition or the non-amending party would be unfairly prejudiced. Capobianchi, supra, citing Horowitz v. Universal Underwriters Insurance Co., 397 Pa. Super. 473, 479, 580 A.2d 395, 398 (1990), and citing Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 24, 218 A.2d 350, 351-52 (1966).

In a mortgage foreclosure case, amendment is permitted, inter alia, where a defendant’s answers are relevant but inartfully pleaded and where allegations that a mortgagee failed to comply with the requirements of the Loan Interest & Protection Law are insufficiently specific. 22 Standard Pennsylvania Practice 2d §121:65, citing Mellon Bank N.A. v. Joseph, 267 Pa. Super. 307, 406 A.2d 1055 (1979).

Finally, amendment may be precluded, as Indymac argues, where it would be futile. Carlino v. Whitpain Investors, 499 Pa. 498, 505, 453 A.2d 1385, 1388 (1982), citing Nationwide Mutual Insurance Co. v. Barbera, 443 Pa. 93, 277 A.2d 821 (1971). Indymac bases its argument for futility on the further argument that the claims from the federal action are not properly cognizable defenses in the instant mortgage foreclosure proceeding.

A mortgage foreclosure proceeding is strictly in rem. Pa.R.C.P. 1141. Only counterclaims which are directly related to the transaction or occurrence out of which the mortgage arose are cognizable in such a proceeding. Pa.R.C.P. 1148. Our Superior Court has held that a wide variety of setoffs and counterclaims are consequently impermissible in such a proceeding. See Overly v. Kass, 382 Pa. Super. 108, 113-15, 554 A.2d 970, 973-74 (1989) (precluding defendants from seeking a set-off for misrepresentations about the condition of the property), Chrysler First Business Credit Corp. v. Gourniak, 411 Pa. Super. 259, 267, 601 A.2d 338, 342 (1992) (precluding defenses relating to misrepresentation in the inducement to purchase of the property). See also, Gottchalk v. DeAngelis, 23 D.&C.3d 334 (Monroe Cty. 1982) (precluding a mortgagor from asserting as a defense or counterclaim in a foreclosure action that the mortgagee had encroached on his property, where he had failed to show that such encroachment was related to the creation of the mortgage or its renegotiation); Standard Pennsylvania Practice 2d §121:68 (counterclaims for professional services; bad faith after the creation of the mortgage by the mortgagee’s predecessor in interest; unjust enrichment, laches, and estoppel arising after the creation of the mortgage; and contracts related to the sale of property are inappropriate), (citations omitted)

Indymac correctly sets out the general rule in its brief: “Any defense must go to the existence and validity of the mortgage,” First Federal Savings & Loan Association of Erie v. McAfee, 15 D.&C.3d 287, 288 (Erie Cty. 1980), and an in personam action to enforce personal liability is prohibited. Insilco Corporation v. Rayburn, 374 Pa. Super. 362, 368, 543 A.2d 120, 123 (1988).

What Rule 1148 does allow is a counterclaim of fraud in the inducement of the purchase of the mortgage itself, rather than fraud in the inducement of the purchase of the real property subject to the mortgage. Cunningham, supra. Consequently, to the extent that Mr. Vicuna’s proffered amendment relates to fraud in the inducement of the purchase of the mortgage, it is cognizable. This conclusion is further supported by Mellon Bank, supra, finding that a defendant’s averment in his answer and new matter that the Loan Interest & Protection Law had been violated insufficiently specific but permissible as a general rule.

As Indymac correctly noted at oral argument, Mr. Vicuna has not attached a proposed amended answer to his petition. However, examining his complaint in the federal fraud action, which was attached to the petition, it is clear that he alleges fraud in the inducement to the mortgage in question. See complaint, Vicuna v. Parisi (M.D. Pa. 05-CV-01515), defendant’s exhibit 1. This is particularly clear in paragraphs one (alleging predatory lending in the procurement and placement of the mortgage and fraudulent analysis of Mr. Vicuna’s ability to pay), 40 (alleging Mr. Vicuna was charged mortgage rates substantially exceeding the market rate as of2001), and 52 (alleging Indymac knew Mr. Vicuna was being overcharged), et al.

As a result, while it is impossible to determine how much of Mr. Vicuna’s amended answer will be appropriate under Pa.R.C.P. 1148, it is apparent that at least some of his federal complaint is also permissible under Cunningham. To the extent that his amended answer turns out to be inappropriate for the instant litigation, Indymac may protect its interests by challenging the offending passages pursuant to the rules.

Indymac finally opposes Mr. Vicuna’s petition on the grounds that it would create “duplicate, identical litigation” which “would be a waste of judicial resources.” Plaintiff’s brief at 5. However, they provide no authority for denying his petition on the grounds of judicial economy. Indeed, to do so would have the perverse effect of punishing litigants who filed meritorious fraud suits in federal court by denying them the right to exercise a cognizable affirmative defense in state court.

For the foregoing reasons, no positive rule of law is violated. As a result, the defense of fraud in the inducement is cognizable.

Where no positive rule of law is violated, under Horowitz, supra, and Capobianchi, supra, lndymac would have to demonstrate prejudice to successfully oppose the petition. Such prejudice as would preclude a party from amending a pleading is roughly akin to unfair surprise — not simply legal detriment, Chaney v. Meadville Medical Center, 912 A.2d 300, 303 (Pa. Super. 2006), or untimeliness, Gutierrez v. Pennsylvania Gas & Water Company, 352 Pa. Super. 282, 287, 507 A.2d 1230, 1233 (1986). The seminal discussion was set out by our Supreme Court in Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973):

“All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed —” (emphasis in original)

Consequently, “[t]he timeliness of the request to amend is a factor to be considered, but it is to be considered only insofar as it presents a question of prejudice to the opposing party, as by loss of witnesses or eleventh hour surprise.” Capobianchi, supra at 135, 666 A.2d at 347, citing Pilotti v. Mobil Oil Corp., 388 Pa. Super. 514, 518-19, 565 A.2d 1227, 1229 (1989).

Here, Mr. Vicuna correctly notes that permitting the amendment would create no surprise, despite its eleventh-hour nature, because the same issues are currently being litigated in federal court. Indymac never avers that any witnesses will be lost or pleads prejudice at all. Consequently, there is no evidence before me which is sufficient as a matter of law for me to find prejudice and deny Mr. Vicuna’s motion.

Mr. Vicuna will be given leave to file an amended answer and new matter within 20 days, stating with particularity his allegations of fraud by Indymac in the inducement of the mortgage.

ORDER

And now, March 1,2007, it is ordered that defendant’s petition to amend his answer is granted. Defendant is directed to file an amended answer within 20 days.

      . This rule is to be interpreted narrowly, Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998), citing Chrysler First Business Credit Corp. v. Gourniak, 411 Pa Super. 259, 264-66, 601 A.2d 338, 341 (1992).


source: Caselaw Access Project

author: MINORA, J,

license: Public Domain

text:
    Ludders v. Board of Supervisors of South Abington Township

      Christopher P. Cullen, for appellants-plaintiffs. William T Jones, for appellee-defendant.

      Patrick J. Lavelle, for intervenors Florey Lumber Co. Inc.
    March 1, 2007
   MINORA, J,

I. INTRODUCTION

Currently before the court in this land use appeal is the issue of whether the Court of Common Pleas of Lackawanna County has jurisdiction to consider said land use appeal with respect to enactment of an ordinance by the appellee-defendant.

By way of background, Florey Lumber Company Inc. is the equitable owner and developer of 38.2 acres of land situated in South Abington Township, Lackawanna County, Pennsylvania.

As such, Florey requested that South Abington Township re-zone the subj ect property from an R-1 residential classification to an R-3 residential classification. The request by Florey did not involve a curative amendment to said subject ordinances as per 53 P.S. §10609.1(a) of the Municipalities Planning Code.

During a regular meeting held on April 10, 2006, the appellee-defendant granted the request of Florey and adopted ordinance no. 192 of 2006, which amended the South Abington Township Zoning Map by changing the designation of the zoning for the subject property from R-l to R-3.

Following the grant of re-zoning and the enactment of the ordinance by the appellee-defendant, current appellant-plaintiffs filed a land use appeal on May 3, 2006, directly with the Court of Common Pleas of Lackawanna County. Neither the appellant-plaintiffs nor anyone else lodged a direct appeal with the South Abington Township Zoning Hearing Board.

We note that following the filing of the notice of land use appeal, Florey filed a petition to intervene in this matter and seeks to join in the position of the appelleedefendant that the Court of Common Pleas lacks jurisdiction to consider the instant land use appeal.

This matter has sparked numerous filings and letter writing by counsel, all of which serve no probative purpose to help resolve the threshold jurisdictional issue.

In any event, our learned colleague, the Honorable Terrence R. Nealon, framed the issue before us at this juncture in his court order of September 18,2006, which stated in pertinent part:

“(1) The threshold jurisdictional issue raised by the appellee-defendant, and the petition to intervene filed by Florey Lumber Co. Inc., will be argued before Judge Carmen D. Minora on October 27, 2006 at 10 a.m.; and

“(2) The parties will not argue or submit the underlying merits of the land use appeal to Judge Minora on October 27, 2006 at 10 a.m.”

The parties did indeed present oral argument on these issues and the matter has been thoroughly briefed. We now consider the pivotal and threshold jurisdictional issue as well as the ancillary intervention issue ripe for disposition.

II. ISSUES

(A) The threshold issue — Does the Court of Common Pleas of Lackawanna County have jurisdiction to hear this instant land use appeal?

(B) The ancillary issue — Should Florey Lumber Co. Inc.’s petition to intervene be granted?

III. DISCUSSION

A. The Threshold Jurisdictional Issue

It is well settled that questions of jurisdiction are never waived and can always divest the court of power to adjudicate underlying substantive issues. See generally, Pennhurst Medical Group v. Department of Public Welfare, 796 A.2d 423 (Pa. Commw. 2002). Atrial court’s ruling dismissing an action based on lack of jurisdiction will not be disturbed absent an abuse of discretion or error of law. See Baker v. Chartiers Township, 163 Pa. Commw. 574, 641 A.2d 688 (1994), petition for allowance of appeal denied, 539 Pa. 655, 651 A.2d 542 (1994).

In the case at hand, it is beyond dispute that the instant proceedings were initiated by the developer Florey’s application to re-zone the subject property. Such an application calls upon a local governing body, acting solely in its legislative role, to consider whether rezoning is in the best interest of their community. Baker v. Chartiers Township, 163 Pa. Commw. 574, 578-79, 641 A.2d 688, 689 (1994), petition for allowance of appeal denied, 539 Pa. 655, 651 A.2d 542 (1994) (citing Fretz v. Hilltown Township Board of Supervisors, 22 Pa. Commw. 276, 348 A.2d 488 (1975)); Vanderlin v. City Council of the City of Williamsport, 821 A.2d 1287, 1291 (Pa. Commw. 2003).

As such, developer Florey’s application for re-zoning resulted in the instant appellee-defendant’s enactment of ordinance no. 192 of 2006 mentioned above, which is clearly and solely a legislative enactment not subject to direct judicial review. See Vanderlin, supra; Baker, su pra; East Lampeter Township v. County of Lancaster, 744 A.2d 359 (Pa. Commw. 2000), petition for allowance of appeal denied, 564 Pa. 698, 764 A.2d 51 (2000); Sharp v. Zoning Hearing Board of the Township of Radnor, 157 Pa. Commw. 50, 628 A.2d 1223 (1993), petition for allowance of appeal denied, 536 Pa. 629, 637 A.2d 290 (1993); Association of Concerned Citizens of Butler Valley v. Butler Township Board of Supervisors, 135 Pa. Commw. 262, 580 A.2d 470 (1990); Pheasant Run Civic Organization v. Board of Commissioners of Penn Township, 60 Pa. Commw. 216, 430 A.2d 1231 (1981).

In addition to the case authorities, the Municipalities Planning Code states that:

“(b) the governing body or, except as to clauses (3), (4) and (5), the planning agency, if designated, shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

“(5) all petitions for amendments to land use ordinances, pursuant to the procedures set forth in section 609. Any action on such petitions shall be deemed legislative acts, provided that nothing contained in this clause shall be deemed to enlarge or diminish existing laws with reference to appeals to court.” 53 P.S. §10909.1(b)(5). (emphasis added)

Moreover, 53 P.S. §10909.1(a)(1)(2) states:

“(a) The zoning hearing board shall have exclusive jurisdiction to hear and render final adjudications in the following matters:

“(1) Substantive challenges to the validity of any land use ordinance, except those brought before the governing body pursuant to sections 609.1 and 916.1(a)(2).

“(2) Challenges to the validity of a land use ordinance raising procedural questions or alleged defects on the process of enactment or adoption which challenges shall be raised by an appeal taken within 30 days of the effective date of the said ordinance.

“Where the ordinance appealed from is the initial zoning ordinance of the municipality and a zoning hearing board has not been previously established, the appeal raising procedural questions shall be taken directly to court...

Since it is clear and free from doubt that the Municipalities Planning Code and the case law state that the South Abington Township Zoning Hearing Board was the proper entity having exclusive jurisdiction over the validity -of the ordinance at issue, the instant land use appeal must be dismissed for lack of jurisdiction. See Baker, supra and Vanderlin, supra. Further, we note the lack of timeliness in the filing of the appeal. The ordinance passed in April 10,2006. No appeal was ever filed with the proper tribunal having “exclusive jurisdiction” within 30 days per 53 P.S. §10909.1(a)(2) noted above.

We note that we as a trial court reached a similar disposition in Van Wie v. Board of Supervision of South Abington Township, 844 A.2d 665 (Pa. Commw. 2004) (unreported decision table no. 2089 C.D. 2003); appeal denied, 579 Pa. 696, 856 A.2d 836 (2004). This court’s jurisdictional decision in Van Wie denying jurisdiction was upheld by our appellate courts as referenced above. See also, Cossell v. Connellsville Township Board of Supervisors, 779 A.2d 611 (Pa. Commw. 2001).

Before we conclude our discussion, we also note that a zoning appeal improperly and directly appealed to the court of common pleas cannot be saved by a court of common pleas remanding or transferring said appeal to the zoning hearing board. This would be contrary to section 5103(a) of the Judicial Code. See Baker, supra; Township of Reserve v. Zoning Hearing Board of Reserve Township, 78 Pa. Commw. 496, 468 A.2d 872 (1983); Sorbara v. City of Pittsburgh, 80 Pa. Commw. 425, 471 A.2d 927 (1984). This being a statutory appeal, strict compliance with the statutory mandates is critical. Absent such compliance, this court cannot remand and make the untimely timely nor act in a jurisdictional manner that it clearly lacks.

Therefore, it is clear that appellants-plaintiffs’ land use appeal must be quashed and dismissed for lack of a proper statutory basis for jurisdiction.

B. The Ancillary Issue Concerning Florey Lumber Co. Inc. ’s Petition To Intervene

While our decision above would seemingly render Florey’s petition to intervene moot, this is not the case. Such a petition to intervene is still relevant should this matter be predictably taken up on appeal since Florey would still have a direct vested interest in this case. See generally, Atticks v. Lancaster Township Zoning Hearing Board, 915 A.2d 713, 2006 WL 3913368 (Pa. Commw. 2007).

We also note that intervention is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion or error of law. See Atticks, supra; Wilson v. State Farm Mutual Automobile Insurance Co., 512 Pa. 486, 492, 517 A.2d 944, 947 (1986).

Clearly, Florey Lumber Co. Inc.’s status as an equitable owner of the real estate at issue and as the original applicant for a zoning amendment give it a direct and immediate interest, thereby providing Florey the necessary standing to intervene in this matter as the determination of this action affects their legally enforceable equitable interest whether or not Florey may be bound by a judgment in this action. See Pa.R.C.P. 2327(4); Larock v. Sugarloaf Township Zoning Hearing Board, 740 A.2d 308 (Pa. Commw. 1999).

Therefore, we will grant Florey Lumber Company Inc.’s petition to intervene.

An appropriate order consistent with this memorandum follows.

ORDER

And now to wit, March 1, 2007, upon due consideration of the issues of intervention and jurisdiction, learned counsels’ written and verbal arguments, and in accordance with the foregoing memorandum, it is hereby ordered and decreed that:

(1) The petition to intervene of Florey Lumber Company Inc. is granted.

(2) The land use appeal of the collective appellant-plaintiffs is quashed and dismissed for lack of jurisdiction.

      . Factors not at play in the instant case.

      . 42 Pa. C.S. §5103(a).


author: LASH, J,

text:
    Mukerji v. City of Reading Charter Review Board

      Steven K. Ludwig, for petitioners.

      Eric B. Smith, for respondent.
    March 26, 2007
   LASH, J,

The matters before this court are the petition of Adam Mukerji and City of Reading for review of the final order of the City of Reading Charter Board dated July 24,2006, and a corresponding motion of the Charter Board to enforce said order.

The order of July 24, 2006 entered disposition of a complaint filed by a City of Reading resident, Cherlynn Martin, alleging a violation of section 706 of the City Charter by Mukerji. Specifically, the complaint claimed that Mukerji, holding the position of Director of Community Development for the city, was not a resident of Reading, thereby failing to comply with the residency requirement of section 706. An evidentiary hearing was held on June 28, 2006 before the Charter Board. The Charter Board found that Mukerji was not a resident of the city, that under the residency requirement of the charter he was required to be a resident during his tenure, and that he was not excused from this requirement by any actions of the mayor or city council, including the passages of ordinances, which, according to Mukerji, changed his employment status to one not subject to the residency requirement.

The Charter Board suspended Mukerji for a period of 30 days, providing that Mukerji must establish residency within the city within 120 days of the date of the order or be terminated. The Charter Board also imposed fines. Mukerji and the city challenge the order, claiming that the order violated the Home Rule Charter and Pennsylvania law in that, inter alia, it usurped the authority vested exclusively in city council and/or the mayor and violated ordinances adopted by the city council of Reading and approved by the mayor. The Charter Board seeks enforcement of its order. Argument was held before this court on March 19, 2007.

I. BACKGROUND

On November 2, 1993, city voters implemented the “Home Rule Charter” with a “strong mayor-council form of government with a managing director” in order to “make the government of the City of Reading more responsive to the needs of the citizens of Reading. . . .” (Report and recommended Home Rule Charter for the City of Reading, July 1993, page VI.) The charter was enacted pursuant to the Home Rule Charter and Optional Plans Law (HRC and OPL), 53 Pa.C.S. §§2901-3171. The charter became effective in January 1996.

Section 706 of the Home Rule Charter established a residency requirement for department directors. That section provides:

“Section 706. Compensation of heads of departments, offices and agencies.

“The compensation of all heads of departments, offices and agencies under the direction of the mayor shall be proposed by the mayor and approved by ordinance. Compensation of all other employees shall be set in accordance with the uniform pay plan established by city council in the personnel code. All such heads of departments, offices and agencies need not be residents of the city at the time of appointment, but after appointment shall reside in the city. City residency shall be required within 12 months of being appointed.”

Pursuant to section 601 and section 703 of the charter, the city then enacted an Administrative Code and a Personnel Code. Section 1-207 of the Personnel Code established a residency requirement for all employees. That section states:

“Section 1-207. Residency.

“Section 706 of the charter stipulates the residency requirement for department directors. Section 401 of the charter stipulates residency requirement of the managing director. All employees hired by the City of Reading following the effective date of this Personnel Code shall become residents of the city within one year of date of hire and shall remain so during their period of employment with the city.”

In 2003, Pennsylvania’s Commonwealth Court was called upon to interpret the city charter relating to authority of the mayor, managing director and city council over non-exempt career service employees. In the case of City Council of the City of Reading v. Eppihimer, 835 A.2d 883 (Pa. Commw. 2003), the court found that the mayor and managing director, and not city council, possess exclusive administrative and executive authority over the appointment, promotion, transfer, demotion, suspension, dismissal or disciplinary action concerning nonexempt career service employees under the terms of the Home Rule Charter. The court also noted that the mayor carries his responsibility for employment of personnel through the managing director, who is the chief administrative officer of the city, pursuant to section 406 of the charter. Among other things, the managing director shall “direct and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by this charter or by law.” The Department of Community Development is one of the departments in the administrative service of the city reporting to the managing director.

In the November 2002 general election, the charter was amended through referendum, taking effect the first Monday of January 2003. Among other things, the amendment established an independent Charter Board consisting of five city residents. Amendment I, section 2.b, provides jurisdiction of the Charter Board, as follows:

“(b) Jurisdiction. The Charter Board shall hear and decide all cases alleging violations of the charter or administrative code, except that its jurisdiction shall not extend to any case arising under the Ethics Code or the Personnel Code. Insofar as permitted by state law the board shall issue binding opinions, impose penalties and administrative fines, refer cases for prosecution, and conduct investigations on its own initiative and on referral or complaint. City counsel shall appropriate sufficient funds to enable the board to perform the duties assigned to it, including expenses for independent counsel and other necessary staff.”

Amendment I, section 2.c, required city council to, by ordinance, adopt regulations to implement the Charter Board. On or about July 25, 2005, city council enacted ordinance no. 46-2005, the Charter Board Ordinance. This ordinance granted powers to the Charter Board, including the power to hear and decide all complaints alleging violations of the charter and Administrative Code, to conduct investigations, to hold hearings, to adopt rules and regulations to administer, implement, enforce and interpret the ordinance, and to impose penalties and administrative fines, as well as to refer matters before it to other authorities with jurisdiction. Among the penalties available to the Charter Board under the ordinance are the powers to suspend or terminate an employee, impose a fine, not to exceed $ 1,000 per violation, or impose an administrative fine of not more than $1,000 to defray the actual cost and expense of investigating a violation.

II. FACTS OF THE CASE

In March 2002, the city hired Mukerji for the position of Manager of Economic Development. Sometime during September or October 2002, the city named him director of “Community and Economic Development,” an office created by the terms of the Administrative Code. The office is subject to the residency requirements of section 706 of the Charter Code.

On January 6, 2006, Cherlynn Martin filed her complaint with the Charter Board alleging Mukerji was in violation of section 706 of the charter. The Charter Board held a hearing on June 28, 2006.

Immediately prior to the hearing, city council enacted two ordinances intended to change Mukerji’s employment status as of June 15, 2006. Ordinance 46-2006 amended section 1-189 of the Administrative Code by eliminating the office of “Department of Community Development.” In its place, a new section 1-189 was enacted which created the position of “Economic Development Manager,” setting forth the office’s qualifications and duties. The second ordinance, 47-2006, amended section 1-207 of the Personnel Code by deleting the language requiring residency for all employees governed by the Personnel Code. The enactment of these ordinances was a clear statement by the mayor and city council that the city desired the continuation of Mukerji’s services, but recognized that so long as he was not a resident of the city and remained subject to section 706 of the charter, his employment status was in jeopardy. Accordingly, the ordinances provided an apparent method to modify Mukerji’s employment status such that he would now fall under the authority of the Personnel Code, outside the jurisdiction of the Charter Board, engineering employment that no longer required residency in the city.

At the hearing, Mukerji admitted that he resides in North Wales, Montgomery County, Pennsylvania. He testified that he has never owned or leased property in the city.

Managing Director Ralph Leon Churchill Jr. agreed in his testimony that Mukerji was in violation of section 706 when he was the director of Community and Economic Development. However, as of June 15, 2006, based on the enactment of ordinances 46-2006 and 47-2006, Churchill believed that Mukerji was no longer subject to section 706 due to a change in his employment status. The current office held by Mukerji, the “Office of Economic Development,” is part of the department of the managing director of which the managing director is the head. Mukerji is no longer the head of a department, office or agency, but is, in essence, one of many managers within the city’s governmental structure overseen by the managing director. However, Mukerji’s duties were much the same as his duties as director of Community and Economic Development. His salary has not changed and his office location remains the same. He did not consider the change a demotion.

At its meeting of July 11,2006, the Charter Board held an executive session. At the conclusion of the session, the Charter Board took a public vote to adopt what would later become the Charter Board’s opinion and order, voting 4 to 0 in favor of the opinion and order. The Charter Board issued its opinion and order on July 24, 2006, finding Mukerji to be in violation of the residency requirement. The Charter Board specifically found that Mukerji’s duties, salaries, responsibilities, office location and staff did not change when he became the city’s Economic Development Manager. In fact, the enactment of ordinance 46-2006 had no substantive effect, as the original section 1-189 and the amended section 1-189 of the Administrative Code are virtually identical. Mukerji still remained the “head of the Office of Community Development” despite the change of title to manager. As manager, Mukerji continued to report to the managing director as he did as director of Community Development and continues to do so without any intervening level of supervision or accountability. His change of position is one of title and is not a demotion.

Accordingly, the Charter Board publicly censored Mukerji and imposed an administrative fine of $1,000 and an additional fine of $1,000, suspended him from city employment without pay for 30 days commencing July 25, 2006, and required him to file an affidavit within 30 days of the date of the order affirming his intention to establish residency within the city within 120 days of the date of the order. The Charter Board further ordered that failure to submit the affidavit within the specified time would cause immediate tennination of Mukerji’s employment with the city. Likewise, if he failed to actually establish residency within the 120 days of the final order, that would also require immediate termination.

III. QUESTIONS PRESENTED

In their petition for review, Mukerji and the city raise several issues, which can be boiled down to the following:

(1) Was the Charter Board’s action in ordering the suspension and termination of Mukerji’s employment contrary to law or the charter?

(2) Did the Charter Board abuse its discretion and violate law and/or the charter in imposing fines and costs totaling $2,000?

(3) Was Mukerji denied a fair hearing because the Charter Board was not impartial and at least two Charter Board members should have been recused from the hearing?

(4) Is the Charter Board’s decision void because the Charter Board never promulgated rules and regulations establishing the procedure and standards which it would utilize in imposing penalties or rules necessary for the conduct of its meetings?

IV. DISCUSSION

Before turning to the substantive issues in this case, we will preliminarily address the matters of recusal and the absence of promulgated rules and regulations governing the proceeding.

Prior to the commencement of the hearing on June 28, 2006, Mukerji and the city moved for recusal of Charter Board members Susan Gibson and John Slifko. Counsel argued that Ms. Gibson had requested funds from the city and was rejected, and that Gibson stated that if her request were rejected she would get the funds one way or another. Counsel also claimed that Gibson’s husband addressed city council regarding residency issues, setting forth that city council should enforce the terms of the current ordinances. Regarding Vice Chair Slifko, counsel argued that he is a party to a pending lawsuit against the city dating back to 2000 alleging Home Rule Charter violations.

After hearing argument, the Charter Board moved into executive session and returned, at which time, both Gibson and Slifko stated, on the record, that neither had any reason to believe that they could not hear the case impartially and without bias. At the conclusion of the hearing, the Charter Board denied the motion to disqualify based on Gibson’s and Slifko’s representations and because no evidence was placed on the record to support the allegations. The Charter Board now contends that the motion was without merit and was not timely.

We first address the timeliness. In Goodheart v. Casey, 523 Pa. 188, 199, 565 A.2d 757, 763 (1989), the Pennsylvania Supreme Court states: “The case law in this Commonwealth is clear and of long standing; it requires a party seeking recusal or disqualification to raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred.”

The Charter Board argues that the matter was not timely because Mukerji was aware of his grounds for recusal prior to the hearing and should have raised it before commencement of the hearing. We disagree. The earliest the Charter Board members could have considered the recusal was at the time of the hearing, for that was the earliest opportunity for a record to be made. At the time of the motion, the record was made, with both supervisors declaring that they could be fair and impartial. While of course the motion could have been filed prior to the hearing, giving opposing counsel and the Charter Board members more notice, the timing did not affect the propriety of the proceedings. If either opposing counsel or the Charter Board members needed time to respond, postponement of the hearing could have been requested. Most importantly, the primary purpose for requiring a timely motion for recusal is to prevent a party from strategically withholding the motion while he determines whether the hearing is proceeding favorably to him. That concern was not present here.

We determine, however, that the recusal motion is without merit. The case of Caln Nether Company L.P. v. Board of Supervisors of Thornbury Township, 840 A.2d 484, 496 (Pa. Commw. 2004), stated the applicable law: “[D]ue process requires [the] local governing body in the performance of its quasi-judicial functions to avoid even the appearance of bias or impropriety. A showing of actual bias is unnecessary in order to assert a cognizable due process claim; the mere potential for bias or the appearance of non-objectivity may be sufficient to constitute a violation of that right.”

The Commonwealth Court then went on to set forth that while an appearance of nonobjectivity is sufficient to trigger judicial scrutiny, the significant remedy of invalidation often depends on something more tangible. “Before it can be said that the [fact-finder] should have recused himself, the record must demonstrate bias, prejudice, capricious disbelief or prejudgment. ... If a [fact-finder] thinks he is capable of hearing a case fairly, his decision not to withdraw will ordinarily be upheld on appeal.” Id. (citation omitted) The Supreme Court in Goodheart also established that the fact-finder is the “most capable to determine those factors hidden in the recesses of the mind and soul which would bear upon his or her capability to maintain the impartiality that each matter must receive.” 523 Pa. at 200, 565 A.2d at 763.

Here, as stated, both challenged Charter Board members expressed on the record their ability to decide the matter fairly. Additionally, the board members agreed to defer a final determination on recusal until the conclusion of the hearing to enable Mukerji and the city to develop a record supporting the motion. No evidence was produced providing a basis for the allegations claimed in the motion. The record does not support recusal. The Charter Board’s determination shall stand.

Petitioners also claim that the Charter Board failed to adopt rules and regulations to “administer, implement, enforce and interpret the Board Ordinance,” as required by section III.A.6 of the Charter Board Ordinance.

This issue is a technical violation of the Charter Board Ordinance, which did not affect the proceedings. There is no mandatory requirement that a local agency implement specific procedures to govern a hearing prior to a hearing actually being held. In cases where there is no established procedure, the Local Agency Law is available to provide procedural due process protections for the enforcement of personal and property rights. Boehm v. Board of Education of the School District of Pittsburgh, 30 Pa. Commw. 468, 474, 373 A.2d 1372, 1375 (1977); Fatscher v. Springfield School District, 28 Pa. Commw. 170, 174, 367 A.2d 1130, 1132 (1977).

Mukerji received adequate due process protection. He received notice and an opportunity to be heard. His interests were represented by the city solicitor. Most importantly, he does not allege any violations of due process which would warrant review. Accordingly, this court denies Mukerji and the city relief on this basis.

We turn then to the main issues relating to the propriety of the Charter Board’s actions. Preliminarily, we restate the general law applicable to the interpretation of the City’s Home Rule Charter, as set forth by the Commonwealth Court in Eppihimer, supra, at pages 886-87 (footnote omitted):

“The issues must be addressed in the context of the City’s Home Rule Charter, as it is the controlling document in this case. The charter was enacted pursuant to the Home Rule Charter and Optional Plans Law (HRC & OPL), 53 Pa.C.S. §§2901-3171. Section 2961 of the HRC & OPL sets forth the powers granted to a municipality that has chosen to adopt a home rule charter, explaining that it ‘may exercise any powers and perform any function not denied by the constitution of Pennsylvania, by statute or by its home rule charter.’ 53 Pa.C.S. §2961. See also, Pa. Constitution, Article IX, Section 2; charter section 102 (incorporates this provision of the HRC & OPL). Therefore, a presumption exists that the exercise of power is valid if no restriction exists in the constitution, the charter itself, or the acts of the legislature. Fraternal Order of Police, Fort Pitt Lodge No. 1 v. City of Pittsburgh, 165 Pa. Commw. 83, 89, 644 A.2d 246, 249 (1994), petition for allowance of appeal denied, 544 Pa. 637, 675 A.2d 1253 (1996). However, regardless of this expanded autonomy, home rule municipalities must act according to the parameters set by the legislature in the HRC & OPL. County of Delaware v. Township of Middletown, 511 Pa. 66, 511 A.2d 811 (1986).

“In addition, this court has held that general rules of statutory construction are applicable in interpreting provisions of a home rule charter. Williams v. City of Pittsburgh, 109 Pa. Commw. 168, 173, 531 A.2d 42, 44 (1987) (citing Cottone v. Kulis, 74 Pa. Commw. 522, 460 A.2d 880 (1983)), petition for allowance of appeal denied, 518 Pa. 622, 541 A.2d 748 (1988). We must interpret statues to ascertain and effectuate the intent of the legislature and, if possible, give effect to all of its provisions. Section 1921(a) of the Statutory Construction Act of 1972,1 Pa.C.S. §1921(a). Further, if the words ofastatute are clear and unambiguous, a court may not ignore the letter of the law under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b); Ramich v. Workers’ Compensation Appeal Board (Schatz Electric Inc.), 564 Pa. 656, 770 A.2d 318 (2001). This court must presume that the drafters of the charter did not intend a result which is absurd, impossible of execution or unreasonable. Cottone, 74 Pa. Commw. at 526, 460 A.2d at 882.”

We also note preliminarily that no party has challenged the legality of the residency requirements, which we agree are valid and enforceable. In City of Meadville, Firemen’s Civil Service Commission v. Neff, 69 Pa. Commw. 259, 263-64, 450 A.2d 1078, 1080 (1982) (footnote omitted), the court states:

“The validity of appropriately defined and uniformly applied residency requirements for municipal employees is well-established. McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976); Nevitt v. Board of Supervisors of Logan Township, 32 Pa. Commw. 474, 379 A.2d 1072 (1977). And, while a person may have more than one residence, he may have only one ‘legal residence,’ which ... is properly construed to mean domicile. A determination of one’s domicile is dependent on the facts of each individual case. McCarthy v. Philadelphia Civil Service Commission, 19 Pa. Commw. 383, 339 A.2d 634 (1975), aff’d, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976).”

Residency requirements have also been upheld in the cases of Viggiano v. Civil Service Commission of City of Philadelphia, 74 Pa. Commw. 191, 459 A.2d 875 (1983), and Civil Service Commission of City of Pittsburgh v. Parks, 80 Pa. Commw. 134, 471 A.2d 154 (1984).

Turning then to the merits, we address first the imposition of fines. After determining Mukerji was in violation of section 706 of the charter, the Charter Board imposed a fine of $ 1,000 and also imposed an administrative fine of $1,000. Petitioners argue that Pennsylvania law precludes fines in excess of $1,000. Additionally, petitioners urge that the maximum fine should not have been imposed because the evidence did not support imposing a maximum and because the Charter Board did not provide sufficient reasoning for its decision.

Amendment I, section 2.b, confers upon the Charter Board the power to “impose penalties and administrative fines.” Section V.B.2.a.ii.f of the Charter Board ordinance permits the Charter Board to impose a fine not to exceed $1,000 per violation. Section V.B.2.a.ii.g permits the Charter Board to impose an additional administrative fine of not more than $1,000.

Petitioners believe that the Charter Board Ordinance violates section 41303(2.2) of the Optional Third Class City Charter Law, which limits penalties for violation of a city ordinance to a fine not exceeding $1,000 or a term of imprisonment not exceeding 90 days, or both.

We disagree. The HRC and OPL, which governs adoption of Home Rule Charters, does not provide a limitation on the assessment of fines. Further, the HRC and OPL provides that another statute of the Commonwealth will only limit Home Rule Government authority when that statute is a “statute of general application.” Section 2962(e) provides:

“Statutes of general application — statutes that are uniform and applicable in every part of this Commonwealth shall remain in effect and shall not be changed or modified by this subpart. Statutes shall supersede any municipal ordinance or resolution on the same subject.”

Under this provision, for the Optional Third Class City Charter Law to govern imposition of fines, it would have to be a statute that impacts on every part of this Commonwealth. This is clearly not the case since the statute is written for third class cities only. See Wecht v. Roddey, 815 A.2d 1146, 1152 (Pa. Commw. 2002). Accordingly, neither the charter nor the Charter Board Ordinance is limited by the Optional Third Class City Charter Law.

We find the fines to be appropriate. The evidence presented sufficiently established a violation. Mukerji was the director of Community Development, at least until June 15, 2006. At all times, he was a non-resident. The evidence is clear that, at a minimum, Mukerji was in violation of the charter from the filing of the complaint through June 15,2006. We also determine that the Charter Board presented sufficient findings and reasoning in the opinion and order to justify its decision. The fact that the Charter Board may not have produced an analysis of all factors the Charter Board Ordinance requires to be considered is not fatal. Mukerji was adequately apprised of the ruling and the bases for same.

The remaining issue concerns the Charter Board’s decision to suspend, and then terminate Mukerji. Petitioners claim that the Charter Board went beyond its authority under the charter when it suspended and ter-,, minated Mukerji, the Charter Board Ordinance notwithstanding.

Under the terms of the charter, the mayor and managing director possess exclusive administrative and executive authority on the appointment, suspension or removal of city employees. Section 603 of the charter confers upon the mayor the power to appoint or remove the head of any department, office or agency, subject to confirmation or inaction by city council. These duties are handled through the managing director, the chief administrative officer of the city, charged with directing and supervising the administration of all the departments, with the power to suspend or remove any city employee except as otherwise provided by the charter or by law under section 406. Similarly, the mayor and managing director possess administrative and executive authority over Reading’s personnel system, which governs the appointment, promotion, transfer, demotion, suspension, dismissal or disciplinary action of the non-exempt career employees. See Eppihimer, supra.

The charter grants no authority to the Charter Board to suspend or terminate an employee. The rationale of the Commonwealth Court in Eppihimer applies here. The mayor and managing director are the only entities permitted, under the charter, to suspend or fire Mukerji for violation of the charter or for any reason.

We find, therefore, that the Charter Board went beyond the scope of its authority when it made findings and recommendations regarding suspension and termination of Mukerji. We additionally find that V.B.2.a.ii.c and d of the Charter Board Ordinance relating to the power of the Charter Board to suspend or terminate an employee are unenforceable.

The process taken is also procedurally defective. Since the mayor and the managing director are the only ones with authority to suspend or terminate an employee, they would have to be included in any proceeding where such relief is sought. Each would have to be named as a party to the action and would have to be afforded due process, including notice and an opportunity to be heard. Here, neither the mayor nor the managing director were parties in the hearing before the Charter Board, nor were named in the motion of the Charter Board to enforce its order.

The appropriate method is an action in mandamus. Mandamus is available to compel performance of a ministerial, mandatory duty of a public official where there is clear legal right to performance and no adequate legal remedy. Borger v. Pleasant Valley School District, 122 Pa. Commw. 187, 189, 551 A.2d 648, 649 (1988). The purpose of mandamus is not to establish legal rights but to enforce those rights which are already established. Waters v. Commonwealth of Pennsylvania, Department of Corrections, 97 Pa. Commw. 283, 288, 509 A.2d 430, 432 (1986).

We enter the following order:

ORDER

And now, March 26, 2007, upon consideration of the petition of Adam Mukerji and the City of Reading for review of the final order of the City of Reading Charter Board dated July 24, 2006, the corresponding motion of the Charter Board to enforce the order of July 24, 2006, responses, briefs filed by the parties, review of the record, and after argument held, it is ruled that the order dated July 24, 2006 is valid and enforceable on the imposition of the $2,000 in penalties and administrative fines against Adam Mukerji for violation of section 706 of the City Charter. The rulings set forth in the order regarding suspension and prospective termination of Adam Mukerji’s employment are deemed invalid and unenforceable.

      . The Charter Board is precluded from hearing cases raised under the Ethics Code or the Personnel Code, in accordance with the terms of the charter.

       Section V.B.2.a.ii.f. and g of the Charter Board Ordinance.

      . The termination provision, section V.B.2.a.ii.d, permits termination “in compliance with existing personnel practices, collective bargaining agreements and/or statutes, with notification to the respondent, the mayor, the managing director, the director of the department in which the respondent is employed, if any, and the complainant, if any.”

      . Currently section 1-189. The office is known in the Administrative Code as Department of Community Development. The department is responsible for the preparation of short- and long-range planning, economic and community development programs, including recreation.

      . The fifth board seat was vacant.

      . Final opinion and order, paragraphs 14-18.

      . In its opinion and order, the board explained the administrative fine, stating: “The purpose of the administrative fine is to defray a fraction of the actual cost and expense incurred by the city in investigating, considering and deciding this violation.”

      . 53 P.S. §41303(2).

      . 53 Pa.C.S. §296.2(e).


author: GEORGELIS, S.J,

text:
    Commonwealth v. Clark

      Jeffrey A. Conrad, for Commonwealth.

      James J. Karl, for defendant.
    March 19, 2007
   GEORGELIS, S.J,

The defendant has appealed my January 22, 2007 ruling that he meets the criteria for the designation of a sexually violent predator (SVP).

On July 28, 2006, the defendant presented, and I accepted, his guilty pleas to criminal attempt at sexual assault (18 Pa.C.S. §§901 and3124.1), involuntary deviate sexual intercourse (18 Pa.C.S. §3123(a)(7)), aggravated indecent assault (18 Pa.C.S. §3125(a)(8)), indecent assault (18 Pa.C.S. §3126(a)(8)) and corruption of minors (18 Pa.C.S. §6301(a)(l)).1 ordered a pre-sentence investigation and an assessment by the Sexual Offenders Assessment Board (SOAB), as required by 42 Pa.C.S. §9795.4(a).

That assessment determined that the defendant meets the S VP criteria, and the Commonwealth filed a praecipe for a hearing. After a series of continuances granted to the defendant to accommodate the appearance of an expert witness, the hearing was held on January 22, 2007. At the conclusion of that hearing, I found that the Commonwealth had met its clear and convincing evidence burden of proof, and I concluded that the defendant is a sexually violent predator as defined by Megan’s Law, 42 Pa.C.S. §9791 et seq. I sentenced him on that date, pursuant to a negotiated agreement, to an aggregate of five to 10 years plus five years of consecutive probation.

Dr. Robert M. Stein, a licensed psychologist and the member of the SOAB who conducted the assessment, was the Commonwealth’s expert. His report states he considered the report of the SOAB staff member, the police reports, the pre-sentence investigation report, the defendant’s interview with the police and court documents. He based his assessment on an examination of the factors set forth in 42 Pa.C.S. §9795.4(b), and he opined with a reasonable degree of professional certainty that the defendant meets the two-prong test — that he has a mental abnormality which predisposes him to committing criminal sexual acts and that he has engaged in a pattern of predatory behavior.

Dr. Stein opined that the defendant’s mental abnormality is paraphilia, not otherwise specified (NOS), the diagnostic criteria for which are recurring and intense sexually arousing fantasies, urges or behaviors. He based this opinion on the defendant’s engaging in repeated, sexually deviate contact with a non-consenting person for over six months. Specifically, he noted that the defendant’s 11 to 12 year old victim reported about 85 sexual acts over a period of one year, including ejaculating in her mouth, inserting his fingers in her vagina, performing oral sex on her and, on one occasion, inserting his penis into her anus.

Dr. Timothy P. Foley, a licensed psychologist, was the defendant’s expert. On the issue of mental abnormality, his report rebuts Dr. Stein’s opinion that the defendant suffers from paraphilia NOS. Even though Dr. Foley did not explicitly opine that the defendant does not suffer from that mental abnormality, his rebuttal of Dr. Stein’s opinion implies that.

Both experts agreed that the diagnostic criteria for paraphilia NOS are recurrent, intense sexually arousing fantasies, sexual urges or behaviors generally involving non-human objects, the suffering or humiliation of oneself or one’s partner or children or other non-consenting persons. I believe the evidence supports Dr. Stein’s conclusion that the defendant engaged in repeated, sexually deviant contact with his minor victim, in light of the 85 sexual acts he performed on her. I found Dr. Stein’s conclusion to be credible on this prong of the S VP test.

As to the requirement of a pattern of predatory behavior, Dr. Stein noted that predatory behavior is statutorily defined as an act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to support or facilitate victimization. He opined that the defendant met this prong by virtue of his becoming upset with the victim when she told him she did not like what he was doing to her; his threatening her not to tell someone what he was doing to her; his maintaining the sexually victimizing relationship for a period of one year; his 85 acts of deviant behavior over that period; and his asking her if she wanted to touch his penis when she was 17 years old. This last incident is an indication of his ongoing urge for deviant, sexual conduct, in light of its having occurred about five years after the acts which occurred when his victim was 11 to 12 years old.

On this issue, Dr. Foley’s report states that there are no indications that the defendant established a relationship for the primary purpose of sexually victimizing his niece and that there are no indications of extra-familial predatory behavior. I believe the evidence cited by Dr. Stein supports his conclusion that the defendant displayed a pattern of predatory behavior, and I found his conclusion to be credible on this prong of the S VP test.

I concluded that the Commonwealth proved with clear and convincing evidence that the defendant has a mental abnormality which predisposes him to committing sexual offenses and has engaged in a pattern of predatory behavior. Accordingly, I concluded that he meets the Megan’s Law criteria and is a sexually violent predator.

      . The defendant’s victim was his 11 to 12 year old niece.

      . The Commonwealth and the defendant agreed to present their experts’ evidence by submitting their reports.


text:
    Dimino v. Wal-Mart Stores Inc.

      Mary Louise Parker and Megan Reaser, for plaintiffs.

      Timothy E. Foley, for defendant.
    February 12, 2007
   ZULICK, J.,

This case is before the court on defendant Wal-Mart Corporation’s motion for summary judgment. Wal-Mart contends that there is no genuine question of material fact on the issue of negligence, and so summary judgment is appropriate.

Plaintiffs Donna and Richard Dimino brought suit on February 17,2005, due to a fall Mrs. Dimino suffered in a Wal-Mart store in East Stroudsburg, Pennsylvania on September 28,2003. They allege that Mrs. Dimino’s fall was the result of Wal-Mart’s negligence, and that they are entitled to recovery for the injuries she sustained as a result of that fall.

All relevant depositions have been taken, pleadings have been closed, and discovery is complete. On January 2,2007, the parties appeared before me for oral argument on Wal-Mart’s motion for summary judgment. For the reasons detailed below, that motion is hereby granted.

DISCUSSION

Summary judgment is appropriate only (1) when there is no genuine issue as to any material fact or (2) when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury. Pa.R.C.P. 1035.2. In evaluating whether to grant summary judgment against a party, a court must accept as true all well-pled facts in the non-moving party’s pleadings and grant him the benefit of all reasonable inferences therefrom. Any doubt as to the existence of an issue of material fact must be resolved against the movant. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). However, a party cannot avoid summary judgment through “mere allegations” “unsupported” by other evidence. Botkin v. Metropolitan Life Insurance Co., 907 A.2d 641 (Pa. Super. 2006), citing McCain v. Pennbank, 379 Pa. Super. 313, 318, 549 A.2d 1311, 1313-14 (1988). In an injury in a store, the fact of an injury with no employees in the vicinity (even if all employees are on break) is insufficient evidence to preclude summary judgment on the issue of the store’s negligence. Myers v. Penn Traffic Co., 414 Pa. Super. 181, 186, 606 A.2d 926, 928 (1992).

The fact that a fall occurred does not give rise to an inference of negligence. Instead, Pennsylvania law places the burden on the plaintiff to establish negligence on the part of the defendant by proving four elements: “(1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damages.” Pittsburgh National Bank v. Perr, 431 Pa. Super. 580, 584, 637 A.2d 334, 336 (1994). Thus, establishing a breach of a legal duty is a condition precedent to a finding of negligence. Shaw v. Kirschbaum, 439 Pa. Super. 24, 29, 653 A.2d 12, 15 (1994); Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 335, 690 A.2d 719, 722 (1997).

The duties Wal-Mart owed to Mrs. Dimino as a customer are those owed by a possessor of land to a business invitee. See Palange v. City of Philadelphia Law Department, 433 Pa. Super. 373, 378, 640 A.2d 1305, 1308 (1994), citing Restatement (Second) of Torts §329 (1965). This entitles her to “the highest duty of care,” Swift, supra. A business owner is liable for breach of that duty if “he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger.” Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 415, 664 A.2d 139, 142 (1995), citing Restatement (Second) of Torts §343 (1965). Additionally, a business owner has an obligation to police its premises to discover dangers to customers. See Restatement §344.

The evidence offered by deposition testimony and answers to discovery establishes that plaintiff Donna Dimino was shopping in the Wal-Mart store on September 28,2003. While she was walking in the baking aisle, she fell. She testified that she “went into shock.” Deposition of Donna Dimino, N.T. 29. She did not remember the fall. All she could remember was that she was “shopping in the aisle and [her] feet slipped out and [she] fell.” Id. She did not know what she slipped on and offered no direct evidence of a spill or slippery substance of any kind on the floor in the baking aisle, or elsewhere in the store or on the premises generally.

Ms. Dimino was asked about the fall during her deposition:

“Q: Do you know what caused your feet to slip?

“A: No, I don’t. I don’t know if it was a slippery substance or what but—

“Q: You don’t know?

“A: I don’t know.” N.T. 30

Later, in response to questions from her own attorney, Mrs. Dimino said she saw something on her shoe when she was in the wheelchair after the fall:

“Q: Do you remember—

“A: Because I was looking — I was sitting in the wheelchair, looking down. And I thought — I thought I saw something on the shoe.

“Q: Was it on both shoes?

“A: I don’t know.

“Q: I know you said you didn’t know what it was, but do you remember what it looked like?

“A: No.

“Q: How did you know that there might have been something on your shoe?

“A: It was like a shiny—

“Q: Your shoe looked different?

“A: Yes.

“Q: Did you notice anything on your shoe that morning when you got dressed to go to Wal-Mart?

“A: No.” N.T. 43.

Ms. Dimino also didn’t know where in the baking aisle she fell. She believed she went into shock after her fall. N.T. 30.

Plaintiff Richard Dimino testified in his deposition that when he arrived at Wal-Mart in response to a telephone call that his wife had fallen and was injured, he found her in a wheelchair near the entrance to the store:

“When I went there to pick her up, Donna was in the wheelchair. And then the lady was telling me what happened. Said your wife fell down in the store. I said all right, let’s get her out of here. Donna says look at my shoe, look at my shoe, there’s something on my shoe.

“I looked at the shoe and I seen something like sheen— like a sheen was on the side of the shoe where the sole is. I seen something. And I did touch it. It felt slippery, but we just got out of there. It’s like a one, two, three thing. Loaded her up in the car. I went right to the hospital because her head — she had a bump on her head and everything.” Deposition of Richard Dimino, pp. 51-52.

Plaintiffs also point to a report of Donna Dimino’s fall by Laura Remy, the Wal-Mart employee who assisted Donna Dimino and investigated the fall for Wal-Mart. Ms. Remy had no recollection during her deposition that she had reported the circumstances of the fall, but had “no doubt that occurred.” N.T. 50. The report stated:

“Customer stated that she did not know what she fell on, just went down, had a marked (sic) underneath her shoe that looked like — floor was dry. Had on high-heel shoes. Stated that the customer was shaking when she got there. The mark was on her shoe. Looked wet looking, tar or something — ” N.T. 50.

Ms. Remy testified that she responded to the aisle when Ms. Dimino fell. She observed the floor in the aisle, and found that “the floor was clean, there was nothing on the floor. The floor was not wet. There was really nothing for her to slip on.” N.T. 52.

Plaintiffs have offered no evidence that Wal-Mart had actual notice of the spill. Instead, this matter turns on whether there is sufficient evidence for a jury to find that Wal-Mart had constructive notice and whether Wal-Mart adequately policed the premises of the store to avert similar dangers. The Diminos proffer two grounds on which they argue a jury could rest a finding of negligence: (1) Wal-Mart employee Laura Remy’s deposition testimony that there were no logs kept or other proof that the baking aisle was properly maintained; (2) an inference, reasonable under the circumstances, that there was something in the aisle upon which Ms. Dimino slipped because of the presence of a “shiny, oily substance” on Ms. Dimino’s shoe after she fell. Neither of these is sufficient.

Absence of Proof ofProper Maintenance

The Diminos’ argument on this point misstates the rule. Pennsylvania courts have been clear that the plaintiff has the burden of demonstrating negligence through evidence; refusing to grant summary judgment here because Wal-Mart has not presented evidence that they were not negligent would reverse the burden of proof and permit mere allegations unsupported by evidence to go to trial in violation of Myers and Botkin, supra.

In Maher v. Pennsylvania State University, 64 D.&C.4th 381 (Centre Cty. 2003), the Court of Common Pleas of Centre County, Judge Kistler, found that a reasonable inference could have been raised that routine inspections would have turned up the defect in question. Id. at 387-88. However, Judge Kistler explained that there were other indications that the defect was obvious:

“Plaintiff stated that, at the time of his fall, water was dripping on his head which caused him to look up and take notice of the condition of the ceiling. Plaintiff noted that the ‘fibrous’ tile above him was discolored and explained during his deposition that he could tell that the ceiling was wet, because although the ceiling was white, it appeared ‘discolored, it was darker where it had gotten wet.’” Id. (citations omitted)

Here, no such evidence exists. The Diminos have alleged nothing beyond a shiny substance on Mrs. Dimino’s shoe which would give rise to an inference that a reasonable inspection would have prevented her injury. Consequently, while Maher appropriately found that other evidence introduced by the plaintiffs was sufficient to create a possible inference of inadequate inspection, in this case, I would have to find the mere fact of an injury sufficient to raise an inference of inadequate inspection and require the defendants to introduce evidence to rebut such an inference. This would be contrary to Pennsylvania law. See Myers, supra.

The Inference That There Was a Slippery Substance in the Aisle

The Diminos produced no evidence that Wal-Mart failed to meet its duty of care or that such failure caused Ms. Dimino’s injuries. Several witnesses testified they saw a shiny, oily substance on Ms. Dimino’s shoe. Donna Dimino deposition at 43; Richard Dimino deposition at 51-52, 54; Laura Remy deposition at 50-51. A reasonable jury could find this demonstrates that Ms. Dimino slipped on a shiny, oily substance. However, Wal-Mart would only be liable for such a slip if they had actual or constructive notice of the defect. Loeb v. Allegheny County, 394 Pa. 433, 436, 147 A.2d 336, 338 (1959). (citations omitted) Plaintiffs have provided no evidence that this slippery substance was first encountered by Mrs. Dimino on Wal-Mart premises. Even if this evidence did warrant an inference that the slippery substance was on Wal-Mart premises, that does not in and of itself establish a breach of duty on Wal-Mart’s part.

The presence of a shiny or oily substance on the floor of a business would constitute evidence sufficient to preclude summary judgment if: (1) the substance is of a type with an inherently sustained duration, as opposed to a transitory spill which could have occurred an instant before the accident; and (2) a witness saw the defect immediately before or after the accident. Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. 2001). If so, WalMart would be considered to be on “constructive notice” of the defect.

In this case, three witnesses saw the substance on Ms. Dimino’s shoe immediately after the accident. However, no evidence was offered that the substance in question was on the Wal-Mart premises, or if it was, that it was there for an inherently sustained duration. Courts have in the past refused to assume constructive notice with no evidence beyond the mere fact of a defect. See Swift, 456 Pa. Super. at 336, 690 A.2d at 723 (water on the floor from unexplained source for unknown period of time not sufficient to establish constructive notice); Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 422 A.2d 593 (1980) (presence of a cherry on the floor of the produce section due to unknown cause for unknown period of time insufficient to establish constructive notice); Myers, supra (presence of a grape on the floor of the produce section due to unknown cause for an unknown period of time not sufficient to establish constructive notice); Rogers v. Horn & Hardart Baking Co., 183 Pa. Super. 83, 87, 127 A.2d 762, 764 (1956) (plaintiff fell near cashier of restaurant and didn’t see stew on the floor, but later found it on the coat he was wearing at the time of the fall).

In Neve, the Superior Court found that a raised metal grate had sufficient indicia of durability to justify a finding of constructive notice. 771 A.2d at 791. Here, the only evidence about the nature of the substance in question was that it was shiny and oily and it was on Ms. Dimino’s shoe. Compare McCarthy v. Target, 4549 CV 2006 (CCP Monroe 2006) (the fact that a substance is sticky is not enough to establish that it has been on the floor for a long enough time for a jury to find constructive notice).

This case is distinguished from McCarthy in two ways. First, the substance is shiny and oily rather than sticky. Second, the Diminos do not directly argue that shininess or oiliness provides an objective indication of duration.

Neither distinction supports a finding that Wal-Mart was on constructive notice. Here, as in Hess v. Sun Ray Drug Co., 387 Pa. 199, 127 A.2d 699 (1956), there is no evidence and so to find for the plaintiff, a fact-finder would have to “guess whether the grease spot was on the [floor] 10 minutes, 10 hours or 10 days prior to plaintiff’s accident.” Id. at 201, 127 A.2d at 701.

Such conjecture is insufficient to preclude summary judgment as a matter of law. Defendant’s motion will be granted.

ORDER

And now, February 12, 2007, it is ordered that defendant’s motion for summary judgment is granted.

      . There is no evidence that Wal-Mart had actual notice of the defect in the record.


author: BLACK, P.J.,

text:
    Wong v. Lehigh Valley Technologies Inc.

      Craig A. Sopin, for plaintiff.

      Larry J. Rappoport, for defendant.
    March 5, 2007
   BLACK, P.J.,

DECISION

Now, March 5,2007, after trial without jury, based on the findings of fact and conclusions of law set forth below, the court finds as follows: (1) Judgment shall be entered in favor of plaintiff Dr. Allan Wong against defendant Lehigh Valley Technologies Inc. in the amount of $12,000 on Count I of plaintiff’s complaint; (2) Judgment shall be entered against plaintiff in favor of defendant on Counts II, III, and IV of the complaint; and (3) Judgment shall be entered in favor of plaintiff against defendant on defendant’s counterclaim.

FINDINGS OF FACT

(1) Lehigh Valley Technologies Inc. (LVT) is a manufacturer of generic pharmaceutical products with its principal place of business at 514 North 12th Street, Allentown, Lehigh County, Pennsylvania.

(2) By letter dated July 14, 2005, LVT, through its chief executive officer, Jeffrey Moshal, extended a written offer of employment to Dr. Allan Wong for the position of Director of Analytical Services, effective August 15, 2005, at a base salary of $85,000 plus vacation and other benefits.

(3) Wong accepted this offer and began to work for LVT as its director of Analytical Services on August 15, 2005.

(4) LVT’s letter of July 14, 2005, set forth a bonus arrangement pursuant to which Wong was eligible to receive up to $78,000 in bonuses, in addition to his salary. For nine products identified as “Grandfathered products,” Wong was to receive a bonus of $2,000 each upon the marketing of the product by a certain date. For 12 other products identified as “ANDA products,” Wong was to receive a bonus of $2,000 each upon the filing of an application for the federal Food and Drug Administration (FDA) approval of the product by a certain date and an additional $3,000 upon obtaining FDA approval. LVT’s letter further provided: “In the event that any of these dates are missed the bonus for the particular product shall be reduced by 20 percent.”

(5) In accepting LVT’s offer of employment, Wong turned down an employment offer at a higher base salary from another company. The opportunity to earn the bonuses was a material inducement for Wong to accept LVT’s offer of employment.

(6) In order to accept LVT’s offer of employment, Wong had to relocate from New Jersey to the Lehigh Valley area.

(7) LVT did not make any fraudulent misrepresentations to Wong to induce him to enter into its employment. However, an implied term of the letter agreement that LVT drafted was that Wong would be given a reasonable opportunity to work on the products on the bonus list so that these products could be brought to market by the bonus deadlines in the letter.

(8) As director of Analytical Services, Wong was to oversee and manage the entire LVT lab. His duties were not limited to the particular products for which he was eligible to receive bonuses. He was also to complete work on other products under development that were not on his bonus list.

(9) The letter agreement did not specify the term of employment. Nor did it purport to limit the ability of Wong or LVT to terminate the agreement at any time with or without cause.

(10) Wong made a significant error in his work on the codeine sulphate tablets.

(11) On December 5, 2005, following the discovery of Wong’s error, LVT, through Moshal, expressed its dissatisfaction with Wong’s job performance and terminated his employment, effective immediately. LVT confirmed the termination by a letter of that date.

(12) As a result of Wong’s error, much of his research had to be repeated by others after his termination, a fact that caused additional expense and delay in bringing the codeine sulphate products to market.

(13) In November 2005, a month prior to Wong’s termination, five products that had been completed under Wong’s direction were marketed by LVT. These products included two estrogen products and three mephobarbital products. None of these products was on the bonus list in the letter agreement, and LVT has declined Wong’s request for a bonus of $2,000 on each of these five products.

(14) LVT did not secure the rights to develop the two codeine sulphate tablets or the three morphine sulphate tablets on the bonus list until October 2005, and the two oxycodone products required a new FDA approval that was not obtained during Wong’s employment.

(15) When Wong began his employment with LVT on August 15,2005, he was instructed to prioritize completion of development of the estrogen and mephobarbital products that were not on his bonus list, and he did so.

(16) As a result, Wong was unable to begin work on any of the products on his bonus list until October 2005, and none of the products on the bonus list had gone “to market” by the time of his discharge on December 5, 2005.

(17) LVT did not give Wong a reasonable opportunity to complete work on any of the products on the bonus list by the deadlines in the letter agreement.

(18) The two codeine sulfate tablets were not brought to market until June 2006, seven months after the November 2005 “date to market” in the letter agreement.

(19) The three morphine sulfate tablets were not brought to market until August 2006, eight months after the December 2005 “date to market” in the letter agreement.

(20) Wong did substantial work on both the codeine and the morphine products prior to his termination. However, because of the error in his work on the codeine sulfate tablets, his work on these products was of limited value.

(21) At the time Wong was terminated, he was directed to pack his personal belongings and leave the premises. He was not authorized to take with him any property belonging to LVT.

(22) Wong maintained some of his work product at LVT on floppy discs.

(23) Upon termination, Wong took with him certain floppy discs that contained some of his work product.

(24) It is not clear what work product was on these floppy discs or what value these floppy discs had to LVT. LVT has offered no evidence as to the fair market value of the floppy discs. It remains unclear what exactly was on these discs and what value, if any, this information had.

(25) Although LVT claims that it incurred penalties for delay in bringing the codeine sulphate products to market, no documentary evidence has been produced regarding these penalties. It remains unclear how these penalties were calculated and how much of the penalty, if any, is attributable to the removal of the floppy discs.

(26) Although LVT seeks reimbursement for charges by a third party for examining the hard drive of the computer used by Wong, no documentary evidence has been produced of any such charges and no evidence has been produced to establish that any such charges were fair and reasonable.

(27) Since the work done by Wong was inadequate, leading to his discharge, it remains unclear how much, if any, of the 200 hours allegedly spent by William Reighter to recreate documents on the floppy discs was caused by the removal of the discs as opposed to deficiencies in Wong’s work.

CONCLUSIONS OF LAW

I. Breach of Contract

(28) The contract of employment between LVT and Wong was terminable at will by either party, with or without cause.

(29) An implied term of the employment contract was that Wong would be given an opportunity to work on and bring to completion the bonus-eligible products by the deadlines set forth in the contract.

(30) Since LVT did not have the right to develop certain of these products at the commencement of Wong’s employment and instead directed him to prioritize the development of other products not on the bonus list, LVT deprived Wong of the opportunity to bring to completion any of the bonus-eligible products by the time his employment was terminated.

(31) As a result, LVT breached the employment agreement.

(32) Wong is entitled to damages for this contract breach in the amount of $12,000, representing the bonuses of $2,000 each for the six products, other than codeine sulphate tablets, that were to be marketed by December 2005. These products include the three morphine sulphate tablets, the two oxycodone tablets, and one of the USEPT tablets.

(33) Wong is not entitled to a bonus on the codeine sulfate tablets even though he did considerable work on these products because his work contained a serious error that required it to be replicated after his departure from LVT.

(34) Wong is not entitled to any further damages on his breach of contract claim.

(35) Wong is entitled to a judgment against LVT on Count I in the amount of $12,000.

II. Detrimental Reliance/Misrepresentation and Deceit

(36) Fraud must be proved by clear and convincing evidence. Goldstein v. Phillip Morris Inc., 854 A.2d 585, 590 (Pa. Super. 2004).

(37) Wong has not produced clear and convincing evidence that LVT made any intentional misrepresentations in order to induce him to enter into the employment contract.

(38) LVT is entitled to a judgment against Wong on Count II of the complaint.

III.Unjust Enrichment

(39) Where a contract of employment exists between the parties, a claim of unjust enrichment by the employee does not lie for services provided under the contract. The employee’s right to compensation for such services is governed by the contract. Diener Brick Company v. Mastro Masonry Contractor, 885 A.2d 1034, 1039 (Pa. Super. 2005).

(40) LVT is entitled to a judgment against Wong on Count III of the complaint.

IV. Intentional Infliction of Mental Distress

(41) The plaintiff has failed to prove extreme and outrageous conduct that caused Wong severe emotional distress.

(42) LVT is entitled to a judgment against Wong on Count IV of the complaint.

V. Defendant’s Counterclaim for Conversion

(43) Damages are never presumed in a tort action. They must be proved with reasonable certainty. Company Image Knitware Ltd. v. Mothers Work Inc., 909 A.2d 324, 336 (Pa. Super. 2006).

(44) LVT has not pleaded or satisfactorily proved any damages from Wong’s removal of the floppy discs.

(45) Wong is entitled to a judgment against LVT on LVT’s counterclaim.