author: BERNSTEIN, J.,

text:
    Portside Investors. L.P. v. Northern Ins. Co. of New York

      John L. Jenkins and Hugh J. Hutchison, for plaintiffs.

      Kevin J. O’Brien, Elizabeth A. Hunter, Patricia A. Fecile-Moreland and Edward M. Koch, for defendant.
    January 13, 2011
   BERNSTEIN, J.,

—In December 2002, Portside commenced this action against Northern claiming breach of contract, breach of the duty of good faith and fair dealing and statutory bad faith. The trial was bifurcated, with the bad faith claims tried non-jury subsequent to the jury verdict. The contract action was tried before a jury in May 2008. On May 30, 2008, the jury returned a verdict in favor of Portside and against Northern. The jury found that Northern breached its contract of insurance with Portside and awarded plaintiff $1,407,859.00 as the actual cash value of the pier at the time of the collapse. The court reduced the verdict to $1,207,859 to reflect a prior payment of $200,000.00. The bad faith claim was tried non-jury on October 5, 6 and 7, 2009 before this court. Based on the evidence presented, the court appropriately found that defendant’s conduct did not amount to bad faith under 42 Pa. C.S. A. § 8371.

On June 9, 2008, defendant filed a motion for post trial relief regarding the jury verdict.

On June 30,2008 plaintiffs filed an answer in opposition to the motion for post trial relief. Judgment was taken by plaintiff pursuant to Pa.R.Civ.P.227.4 (1) (b) on July 21, 2010. On August 19, 2010 defendant appealed.

In this breach of contract and bad faith action, the plaintiff Portside Investors, L.P. (hereinafter “Portside”) sought compensation for loss for the value of the pier itself, sustained when Pier 34 collapsed. Plaintiff Portside was the owner of Pier 34 on the Delaware River in Philadelphia. The Pier was subject to a triple net lease to HMS Ventures which operated a restaurant facility at the site the restaurant ship Moshulu was moored. The principals of HMS Ventures were Michael Asbell and Eli Karetny. HMS and Portside were insured under a first party Property Policy issued by Northern. The Northern policy insured against risks of direct physical loss to the pier and the building and property in an amount up to $4,300,000.00. The policy excluded certain causes of loss. Collapse of the pier itself was excluded unless the collapse had been caused by “hidden decay.” If caused by “hidden decay” the collapse of the pier itself was a covered loss. The policy also provided additional coverage including debris removal, demolition expense and business interruption. As to the loss of the pier itself, if covered, the policy provided for payment of “actual cash value.” “Actual cash value” was specifically defined as replacement cost less depreciation.

On May 18, 2000, a portion of Pier 34 collapsed, causing three deaths and numerous injuries. Portside filed an insurance claim with Northern. Portside hired Clark & Cohen/Claims International LLC, a public adjuster, for the loss. Frank Mahoney was designated as the principal adjuster in the Portside claim. Northern hired Stan White of Ocean and Coastal Consultants (“OCC”) to investigate the cause of the collapse.

On October 19, 2000, Portside submitted a sworn proof of loss seeking in excess of $15 million. The sworn statement identified the cause and origin of the loss as “Flidden Decay.”

The submission consisted of replacement cost for the building on the pier, the 200 feet of damaged pier, debris removal and one year of lost rental income. The submission by Portside did not provide any claimed actual cash value for the pier.

On February 23, 2001, Northern informed Portside that first party property coverage was available under the policy for certain property damage and related business interruption and extra expense resulting from the collapse. Northern proceeded to determine the actual cash value of the pier since the pier was not going to be replaced. In April 2001, after a comprehensive professional investigation which included an underwater survey, a review of historical records including soil borings, lab analysis of borings and creation of a model of the pier and its condition before it collapsed, OCC concluded that the physical structure of the pier had far exceeded its useful life, had been poorly maintained and was worthless at the time of the loss and therefore had no actual cash value.

In July 2001, Northern paid Portside approximately $2.7 million in settlement of many of Portside’s claims including the loss of structure on top of the pier, the costs of debris removal and lost income for one year. Despite concluding that the actual cash value of the pier was zero, Northern made a payment of $200,000 to Portside for the pier.

In June 2001, Northern advised Portside as follows:

Based on a review of the historical documents, as well as an on-site investigation, OCC found the maintenance of the pier to have been minimal over the course of its almost one-hundred year existence. As the graph reflects, the pier was well beyond its useful life at the time of it collapse on May 18, 2000. Under these circumstances, we believe the $200,000 ACV proposed for the pier is extremely fair.

On August 16, 2001, Portside informed Northern that it disagreed with the conclusion, methodology employed and the factual support used to determine the actual cash value of the pier and demanded an appraisal under the policy. Notwithstanding Portside’s demand for Northern to appoint an appraiser, Portside itself never designated an appraiser. Neither did Portside apply to the court to require Northern to designate an appraiser or seek court appointment.

On the very day that Portside demanded an appraisal, a grand jury in Philadelphia indicted Michael Asbell and Eli Karetny for involuntary manslaughter and other offenses relating to their conduct in ignoring prior warnings by engineers and others that the pier was unsafe and in danger of imminent collapse.

The presentation filed in support of the indictment demonstrated that Portside’s principal knew about the pier’s decay before the collapse. The presentation provided:

The condition of the pier had obviously deteriorated severely by early May 2000. On May 9,10, 17 and 18, 2000, servicemen from Suburban Propane Company went to Pier 34 on those occasions to replace a pipe that was leaking gas. The bent pipe had moved and pulled toward the river, and they needed to extend it near the point of the eventual collapse. On May 12, 2000 Eli Karetny notified a carpenter/contractor that he needed him to fill the same crack the carpet installer had filled several months earlier. The contractor arrived with his worker on May 15. The crack was again filled with more concrete.
On May 16, divers from Commerce Construction Company inspected the outshore substructure of the pier. Jesse Tyson took Eli Karetny out in the diver’s boat to show him twisted piles that indicated continued pier movement. The divers reported that the fill was leaking through the lower deck and some timber piles were leaning outshore. It was also observed on May 16, 2000 that the crack in the top deck, which had just been filled with concrete the previous day, had already reopened and was getting progressively wider. The contractors filled it again but it reopened again on May 17. By this time, many employees were expressing concern that the pier would collapse. Jesse Tyson told Michael Ashell on May 17, 2000 about the diver’s observations concerning the condition of the piles. During this conversation, Tyson and Asbell discussed the recent collapse of the South Jersey Port Corporation pier on the Camden side of the Delaware River as an example that old piers become weak and do collapse.
On the morning of May 18, 2000 after discussion with Michael Asbell, Eli Karetny phoned and told his insurance broker that he thought the pier was sinking; the broker then faxed an insurance claim report into the insurance company. Eli Karetny also called and told Jesse Tyson that the filled crack was wider and new cracks had appeared. When Jesse Tyson arrived at the pier in the early afternoon, he noticed that the crack had grown from 3 inches wide on May 16 to 11 inches wide on May 18. Various employees gave varying descriptions on the width of the crack, but all agreed that it had widened significantly by May 18, 2000. Jesse Tyson told Michael Asbell and Eli Karetny on the early afternoon of May 18 that the pier was in a state of failure and would probably collapse at the next low tide, 8:00 p.m. that night, or the low tide the next morning. Despite this warning, Michael Asbell and Eli Karetny did not close the pier but, instead, opened the club for business that night...

The Commerce Construction Corporation divers’ report had made the following finding:

Area of timber decking have openings between adjacent members and some decking members show deflection and settlement not bearing on support members-allowing granular fill to seep out causing voids and settlement.

Before agreeing to acknowledge receipt, Mr. Asbell had the divers change the findings portion of the report to read:

Area of timber decking have openings between adjacent members and some decking members show deflection additional inspections to follow (handwritten on document).

Asbell had important knowledge of the pier’s condition and maintenance. This information would be useful to accurately determine the value of the damaged property and the issue of fortuity. If Asbell had knowledge of a danger of “imminent collapse” the collapse was not due to “hidden decay.” After learning of the indictment, Northern informed Portside that it was reopening its investigation as to both coverage and value of the loss and requested that Mr. Asbell appear for an examination under oath. As was his constitutional right, Mr. Asbell declined to present testimony under oath while criminal charges were pending.

At trial plaintiff presented two expert witnesses, Mr. William Castle and their public adjuster Mr. Frank E. Mahoney. Mr. Castle testified to the cost to rebuild the pier. Mr. Castle provided no testimony about the value of the pier prior to its collapse. He provided no testimony as to its actual cash value as defined by the policy. Only plaintiff’s public adjuster expert Mr. Mahoney testified to the actual cash value of the pier at the time of the loss.

Expert Castle, whose deposition was presented to the jury stated at page 207:

Q. Did you ever develop an actual cash value figure?
A. No, that’s not my expertise.
Q. But you were asked to, correct?
A. Yes, but it’s not my field. That’s like an appraiser. Em not an appraiser.

Plaintiff’s expert, Mr. Mahoney, was the only witness presented by plaintiff to offer any opinion as to “actual cash value” as defined in the policy of insurance. Mr. Mahoney is a public adjuster and not an appraiser. At trial Mr. Mahoney was qualified as an expert only due to the incredibly liberal requirements of the Pennsylvania Rules of Evidence. He had “a reasonable pretention to specialized knowledge on the subject under investigation,” namely the field of the value of old deteriorated piers on the Delaware River in Philadelphia. He did not, however, present testimony which was relevant to any question for jury determination. His testimony was clearly based exclusively upon, and directed exclusively to, the settlement of insurance claims for old deteriorated piers on the Delaware River in Philadelphia. He employed no appropriate methodology to actually determine the actual cash value of this specific old deteriorated pier in Philadelphia on the Delaware River pursuant to the policy language which defined actual cash value as replacement cost less depreciation due to structural deterioration. In substance, the opinion of plaintiff’s only expert witness on actual cash value could not, and did not, provide evidence which could “assist” the jury to understand the evidence or to determine a fact in issue, namely the actual cash value.

Plaintiff’s expert made no evaluation of replacement costs, the necessary starting point to determine the value of the covered loss according to the clear language of the insurance policy. He relied exclusively on the testimony of Mr. Castle. Starting with Mr. Castle’s replacement costs conclusion, plaintiff’s expert did no necessary calculation of depreciation.

Plaintiff incorrectly asserts that this case “requires the expert testimony of a person who has expertise in valuing a pier for the purpose of adjusting a property damaged loss. That is Mr. Mahoney’s exact expertise.” Because of this misperception, Mr. Mahoney’s testimony “does not assist.” Public Adjuster Mahoney opined only on what the defendant insurance company should have done and should have paid in settlement. He made no secret of this fact:

Q. And you’re testifying as to your expert opinion on a reasonable compromise value for some negotiated resolution of the value of this pier; is that right?
A. Yes.

While Mr. Mahoney agreed to the policy definition of actual cash value and also agreed to the correct Pennsylvania standard, he admitted he was not using that standard in his testimony:

Q. And you agree with me that actual cash value is not market value; is that right?
A. That’s correct.
Q. It’s not what you could sell something for, it’s the value of the physical sticks and bricks of the structure; is that right?
A. Well, on some adjustments market value does come into play.
Q. But not in the state of Pennsylvania, does it?
A. No.
Q. So “some adjustments” don’t matter if we’re not in Pennsylvania, do they?
A. No.
Q. So as far as the law in Pennsylvania is concerned, market value does not matter, does it?
A. My opinion is that it does come into play.

Plaintiff’s expert’s testimony was also biased to the point of irrelevancy, possibly because he had a direct financial interest in the outcome of the lawsuit:

Q. Yes, when you were writing all these letters, how were you going to be paid for the work you were doing?
A. I was part of a team that had a contract with Mr. Asbell, Portside Investors, and I was the guy that did most of the work and got the small piece of change.
Q. But your small piece of change was based on a percentage of recovery; correct?
A. Yes.
Q. So the more Portside got paid, the more you got paid; is that right?
A. In that situation, yes.
Q. And I think you said in your deposition you got a piece of the action; is that right?
A. Yes.

Settlement and trial are two different worlds. There are countless reasons parties settle a claim without filing a lawsuit, or during the pendency of a lawsuit, or while awaiting a verdict or while a verdict is on appeal. First party claims may settle before a lawsuit is filed for a value different from the actual cash value which can be proven because one or the other side does not have complete information. Cases may settle for a value different from the actual cash value which can be proven because one side has incorrectly evaluated the claim. Cases may settle for a value different from the actual cash value which can be proven because the costs of proceeding to court are greater than the remaining financial differences in controversy. Cases may settle for a value different from the actual cash value which can be proven because one side negotiates more effectively or more adamantly than the other side. Cases may settle for a value different from the actual cash value which can be proven because one side needs to resolve the matter for business reasons extraneous to the specific merits of the claim.

Many of the reasons for settlement before suit may become inoperable once a case is filed in court. Once a lawsuit is filed, however, other reasons for settlement appear. Cases may settle for a value different from the actual cash value which can be proven because judges unmercifully insist on settlement, require repeated conferences, or require the presence of claims adjusters, insurance executives, or even corporate officers in court. Cases may settle for a value different from the actual cash value which can be proven because of the risk of obtaining a result less favorable than the cost to settle. Cases may settle for a value different from the actual cash value which can be proven because insurance adjusters can justify paying more than the claim is worth to avoid risking adverse career implications should a jury dramatically disagree with the final offer. Although wrong as a matter of law, some insurance adjusters may settle for a value different from the actual cash value which can be proven because they believe, as testified at the trial by plaintiff’s expert Mr. Mahoney, “the insurance company has an obligation to settle every claim.” Some cases may settle for a value different from the actual cash value which can be proven because it may simply be more convenient to settle than risk the uncertainties of results and incur the certainty of attorney’s fees of actually proving value by the rigors of a courtroom. The appropriate value for settlement, or the appropriate procedure for negotiating a settlement of an insurance claim is any appropriate methodology for determining the value of the “actual cash value” as defined by the insurance policy covering an old deteriorated pier on the Delaware River in Philadelphia. Proof at trial is totally different from talk in settlement negotiations. The biggest difference of course, between settlement negotiation and the courtroom, is that at trial “talk” must survive cross-examination. “Talk is cheap.” In the courtroom, talk rubber meets the cross-examination road in a crucible from which truth emerges.

Hired gun experts may write a report on topics tangential to their true expertise or even any true “reasonable pretension” to expertise. Hired gun “interested” experts may write a report without expressing their opinions with any degree of certainty. Hired gun experts may write a report without having any real factual basis “of record.” Hired gun experts may write reports which do not comply with any accepted expert methodology in any field. Indeed, hired gun experts may write a report which subtlety employ definitions confounding correct legal standards. This is exactly what occurred in this trial. This is specifically admitted in the testimony of Mr. Mahoney and specifically referenced in plaintiff’s response to defendant’s post verdict motions.

Plaintiffs articulate their incorrect view of the issue in this trial. Plaintiff accurately portrays its “expert” as an expert in the adjustment process generally, with directly applicable experience in the evaluation and adjustment of claims arising from damage to piers. He is this, but nothing more. Mr. Mahoney does not consider himself anything more than an expert in the settlement of claims. In its brief plaintiff admits: “As Mr. Mahoney testified when asked if he considered himself a ‘pier expert’ he responded that he has substantial expertise as a claims adjuster who handles many pier lawsuits.” He admitted that he was testifying based upon his expertise as a public adjuster and opining only on the proper settlement or “adjustment” of the claim:

Q. And you’re testifying as to your expert opinion on a reasonable compromise value for some negotiated resolution of the value of this pier; is that right?
A. Yes.

Both sides agree on the precise definitional standard contained in the applicable insurance policy. The defendant must pay only the “actual cash value” of Pier 34 moments before it collapsed, actual cash value is specifically defined in the policy as “replacement cost less depreciation.” Both sides also agree that depreciation must be determined by considering the age, condition, obsolescence, maintenance performed and maintenance needed. Plaintiff’s public adjuster expert agreed that that maintenance, and repair costs are factors which had to be considered. What the actual cash value of Pier 34 is, as defined in a policy, is a fact which must be determined by a jury based on proper evidence about the condition of Pier 34 before its collapse.

To make a factual finding of the “actual cash value” of Pier 34 moments before it collapsed into the river a jury needs the assistance of opinion rendered by expert witnesses who “by training education or experience have achieved some level of expertise beyond the range of normal experience.” That expert must offer opinions with the requisite degree of certainty using the insurance policy definition. Without appropriate expert testimony to help the jury, the jury has no reasonable basis upon which to make a proper factual determination of the actual cash value of Pier 34.

Nothing in Mr. Mahoney’s qualifications or experience qualifies him to competently evaluate the condition, or the obsolescence, or the effect of the “maintenance” performed over Pier 34. Mr. Mahoney’s testimony demonstrated that he was incapable of differentiating between “maintenance” needed to make money such as repairs to a parking lot and “maintenance” to stop a pier from collapsing into the river. Mr. Mahoney’s testimony demonstrated that he could not, and did not, evaluate whether the work he called “maintenance” was functional to keep the pier structurally sound or in fact furthered deterioration. He admitted that the only work undertaken at the pier that served to enhance the structural stability or value of the collapsed pier was the installation of eight “A” frames. He further admitted that he had no idea if those “A” frames were in any way effective in actually stabilizing the pier. Nonetheless, he considered every penny spent on any type of “maintenance” appropriate for inclusion in his actual cash value methodology.

This opinion on the value of the “maintenance” done on the pier was clearly and unambiguously expressed: “...if $400,000.00 was spent then there was $400,000.00 of maintenance performed.”

Q. And my next question then is if maintenance is done somewhere on the pier, but far away from the area that collapsed, does it have any bearing on the value of the area that collapsed that we’re here about?

A. Let’s put it this way. It does.

Q. We will get to the specific maintenance items. My question is very specific, Mr. Mahoney. Can you tell me one way or another if maintenance work done on some other part of the pier does anything to enhance the value of the 200-foot section that we’re here about today?

A. My answer to that is yes, it does enhance the value of the pier totally, not just the 200 feet, but the 550 feet.

Q. And would paving and grading let’s say on the inshore of the pier, inshore end of the pier 300 feet away from the collapsed area, do anything to enhance the value of that outshore end of the pier?

A. I’m not sure I can answer that question.

Q. In that same paragraph, Mr. Mahoney, you list amongst your maintenance items wheel stops. What’s a wheel stop?

A. I don’t know.

Q. Is it that little concrete barricade that keeps a car from rolling a little too far so if the wheel hits it, it stops the car from going forward?

A. That would have been the parking lot of the

pier.

Q. Right. Is that a wheel stop?

A. I don’t know.

Q. So when you wrote it, you weren’t sure what you meant by wheel stop?

A. No.

Q. If a wheel stop is what I’m telling you it is, how would that enhance the value of the pier, the pier structure itself?

A. The pier structure?

Q. Right.

A. It was part of the improvement that was put in.

Q. So putting in a wheel stop keeps the pier from falling down?

A. Has nothing to do with the pier’s structure in that sense.

Q. Mr. Mahoney, did the repair of the area that collapsed in 1995 do anything to enhance the structural stability of the outshore end that collapsed on May 18th of 2000?

A. No.

Q. In the 1995 to 1996 time period you’ve got the installation of the H piles stabilization system; correct?

A. Yes.

Q. And that was the $350,000 in work that was done; is that right?

A. Yes.

Q. Have you also heard H piles called A frames?

A. Yes.

Q. Same repair; correct?

A. Yes.

Q. What is your understanding as to the success of the installation of those A frames or H piles?

A. Well, they were — the success?

Q. The success.

A. The problem that was established in 1995 was to install this installation to make it be stable.

Q. That was the goal or objective; correct?

A. Yes. Frank E. Mahoney - Cross

Q. Did it work?

A. It worked until 2000.

Q. Well, how much longer did that section of the pier remain standing because of the installation of those H piles or A frames?

A. I can’t answer that.

Q. Do you have any idea?

A. No.

Q. Do you know if it stayed up even one day longer because of the installation of those H piles?

A. I have no idea.

Q. did you consider this August 19th, 2004, report prepared by W. J. Castle?

A. I’ve never seen this report before.

Q. You’ve never seen it before?

A. No.

Q. No one has ever given it to you?

A. No.

Q. Were you aware that Mr. Castle was very critical of the H pile or A framework that was done on the outshore end of the pier?

A. I’m not aware of that.

Q. We can read some of this letter together then since you haven’t seen it before.

Q. Turn to Page 2.

Q. Mr. Mahoney, if you could look at the second page of this document, very last paragraph. Toward the end of that paragraph it starts, “However as discussed in more detail below.” Do you see where I am?

A. Yes.

Q. It says, “However, as discussed in more detail below, those A frame structures was inadequate to arrest the outshore movement of the pier, a factor which should have been obvious to any engineer who took the time to perform certain elementary and essential engineering calculations.” Do you see that?

A. Yes.

Q. Were you aware that that was Mr. Castle’s opinion?

A. No.

Q. Are the A frame structures referenced here the same as the H piles in your maintenance letter?

A. Yes.

Q. Sure. After reading the section of Mr. Castle’s report that we just read together, does that at all change your opinion as to whether the installation of those A frames or H piles was a valuable maintenance item that enhanced the value of that 200-foot section of the pier?

A. In my opinion, yes, still enhanced the value.

Q. What happens if the maintenance expenditures don’t actually work?

A. Doesn’t matter.

This is not expert evaluation applied to the question presented for jury determination, this is partisan adoption of all amounts spent without any consideration of what it was spent on. Thus he considered parking lot repairs, and repairs to areas of the pier having no relation to the part of the pier which collapsed, as significant “maintenance” for evaluating an actual cash value. He either did not choose to evaluate the “maintenance” at all or was actually incapable of making this evaluation:

Q. And when you looked at those underwater videotapes did you know what you were looking at?

A. Didn’t mean anything to me.

Q. In fact, Mr. Mahoney, you are not a pier expert, are you?

A. I am a claims adjuster who handles many pier losses.

Q. Let me ask the question again. Do you consider yourself to be a pier expert?

A. My experience and expertise is in adjusting insurance claims which included 27 pier losses.

Q. Sure. Mr. Mahoney, do you recall that I asked you that same question, let me get the date here for you, during the deposition on May 24th, 2007? Do you recall being asked that question whether you considered yourself to be a pier expert?

A. No, I do not.

Q. Do you?

A. I do not.

Q. Okay. Then let me read it to you. My question was — it’s on Page 42 of the transcript, Line 16: “Do you consider yourself to be an expert in valuing damage to real property?”

MR. HUTCHISON: Can we have the answer to that?

Q. And the answer in part was, “So to answer your question, I don’t know if I would qualify as an\ expert, but I certainly know my way around the claims.” Do you recall that question and answer?

A. Yes.

Q. So you don’t consider yourself to be an expert in valuating property?

A. I do consider myself being able to value a claim which involves the matter of a pier. I’m not a pier builder. I don’t do that.

This is opinion which cannot “assist” the jury in any factual determination in this case.

Mr. Mahoney has only been involved in adjusting insurance claims. The basis of his opinion was the adjustment of other pier claims on the Delaware River. While this may be relevant experience if the question is the adjustment or settlement of pier claims it is not relevant in court concerning the replacement cost less depreciation which requires evaluation of: “age, condition, obsolescence, the amount of maintenance performed on the property, and the amount of maintenance the damaged property would require to retain the ability to function in its intended purpose.”

Mr. Mahoney did not even appropriately use whatever relevancy his prior experience in adjusting pier losses might have had. He considered only the settlement or adjustment process.

He did not even compare the condition of his other pier claims to the condition of Pier 34 at the time of its collapse. He has no expertise which would allow him to make any such comparison.

He admitted he had no appreciation of why any of the piers collapsed:

Q. Mr. Mahoney, what is your understanding as to why — or let me try a different question. Do you have an understanding as to why this 200-foot section of the pier collapsed?

A. I do not. I have a theory, but I don’t know how it collapsed.

Q. Did those other structures collapse because of decay?

A. Three of them collapsed, we don’t know why.

Q. Did those other structures —

THE COURT: So then the answer is no, they did not collapse because of decay because you don’t know why they collapsed; right?

THE WITNESS: Yes.

Plaintiff claims that Mr. Mahoney’s expertise is in “valuation approaches to the losses that have been accepted within the insurance industry.” The fact that he has been previously qualified as an expert “in the fields of interpretation of insurance contracts, claims handling procedures, and loss adjustments” qualifies him to testify to valuation in settlement, not to the replacement value of a pier less the effect of the maintenance or lack of maintenance over the past 100 years. In fact, he was only offered as an expert in his true fields of expertise, claims adjustment:

MR. HUTCHISON: Your Honor, if you would like, I’d like to offer Mr. Mahoney as an expert on insurance interpretation and on adjustment policies and -

THE COURT: And what? I missed the third.

MR. HUTCHISON: Adjustment procedures and policies.

The next morning he was questioned as to his understanding of actual cash value. His understanding was a “settlement” of a claim understanding, not a factual determination based upon expert evaluation understanding:

THE COURT: Is the settlement the same as the actual cash value?

THE WITNESS: Yes.

Q. You testified under questioning by counsel for Portside that you view the actual cash value process to be the product of compromise or negotiation between the insurance company and the insured. Do you recall that testimony?

A. Yes.

Q. Can you show me where in the policy and I’ll direct you to Exhibit No. 1 of the binder, where in the policy it defines actual cash value as being the [10] product of compromise between the two parties?

A. It’s just the tool we use in the adjustment business.

Q. My question, Mr. Mahoney, can you show me where in the policy Portside Exhibit 1 where it says that actual cash value is to be determined by a compromise between the insurance company and the insured?

A. It doesn’t say that.

Q. And, in fact, it says that actual cash value is determined, by depreciating the replacement cost; isn’t that correct?

A. Yes.

Q. So there’s no requirement that the insurance company reach a compromise negotiated resolution, is there?

A. Sir, the object is to settle the loss.

Q. Is there a requirement in the policy that the insurance company compromise or negotiate in order to determine the actual cash value of the damaged property?

A. They have an obligation to settle the loss.

Q. Is there a requirement in the policy, Mr. Mahoney, that the insurance company must compromise or negotiate with the insured in order to arrive at the actual cash value of damaged property? Do you understand my question?

A. I heard the question.

Q. Is there a requirement in the policy that they do that?

A. There’s not a requirement.

Q. Okay. So if the insurance company thinks that the claim is way too high, let’s say $13 million to replace 200 feet of pier, are they obligated to find some common middle ground there?

A. They have an obligation to —

Q. Are they obligated to find some common middle ground?

Q. Yes or no?

A. The object is to settle a loss.

Proof of the actual cash value as defined by the policy of insurance of the collapsed pier, just prior to the collapse, is an entirely different factual determination from the proper adjustment or settlement of a collapsed pier claim.

Finally, plaintiffs admit that Mr. Mahoney did not testify to any reasonable degree of certainty. Plaintiffs urge this court to find that some expert witnesses do not have to testify to any requisite degree of certainty and therefore to excuse Mr. Mahoney’s failure in this regard. This is simply not the law of any jurisdiction. An expert witness need testify only to a “reasonable” degree of professional certainty as that expert self defines “reasonable” but he must testify to that “reasonable” degree of certainty.

They further claim that there is no requirement that any reasonable degree of “appraisal” certainty is required. This is simply incorrect. Were this to be a correct statement of law any credentialed expert with “reasonable pretentions to expertise” could offer personal opinion however unprofessional.

While the law permits wide latitude in self-proclaimed experts’ testimony, the most basic, incontrovertible minimum standard is that they are testifying to some professional standard even if self-defined.

Plaintiff’s expert was not qualified to render an opinion on any relevant issue presented to the jury for determination. Plaintiff’s expert did not purport to render an opinion on any relevant issue for determination presented to the jury. Plaintiff’s only expert on actual cash value used no methodology suitable to that question. Plaintiff’s expert had no factual basis for the opinions rendered. Therefore the jury had no evidentiary basis upon which to render their verdict. The verdict herein should be reversed and a new trial ordered.

      . The jury also found that the plaintiff did not breach its contract of insurance when it failed to file this lawsuit within the two years of the collapse of the pier.

      . HMS also submitted an insurance claim for this loss. Although HMS filed a lawsuit, 'Northern eventually settled the claim.

      . Under the policy, replacement cost is only provided if the pier was actually replaced. If the pier was not going to be replaced the insured received the actual cash value of the pier. The pier was not replaced.

      . Portside Exhibit “157.”

      . Northern Exhibit “17.”

      . Northern Exhibit “311.”

      . Northern Exhibit “127.'

      . Portside Exhibit “75.”

      . Portside Exhibit “76.”

      . Deposition of William Castle pg. 207 line 9-16.

      . Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995).

      . See Pa. R. E. 702; Comm. v. Rounds, 542 A.2d 997 (1988); Grady v. Frito-Lay Inc., 839 A.2d 1038 (2003).

      ÑÑ.T. May 27, 2008 pg. 77 line 7-11.

      . N.T. May 27, 2008, pg. 87 line 24- pg. 88 line 24.

      . N.T. May 27, 2008, pg. 148 line 23- pg. 149 line 14. Mr. Mahoney’s interest and bias was further exemplified by his contorted logic concerning the definition of the word “hidden.” He testified:
      Q. If the insured knows about the decay, is it hidden decay just because it’s under water?
      A. If he can’t see it, it’s hidden decay.
      Q. My question was, if the insured knows about it, is it still hidden decay?
      A. Well, it goes to the point of fortuity. If he knew about the, we’re going to have an imminent collapse before the fact, then there is no coverage.
      The court: Does that mean your answer is “Yes” or “No.”
      The Witness: My answer - well, yes, it’s under water.
      The court: So if it’s under water, even if they know about it, it’s hidden; correct?
      The Witness: Yes, that’s correct.
      Q. Okay, well indulge me, Mr. Mahoney, in a hypothetical: if hypothetically speaking, on May 18th, 1999, one year prior to the collapse, the insured is told that your pier is decayed and this decay could cause a collapse, is that decay still hidden decay, or is it now known to the insured and it’s no longer hidden decay?
      A. Well, it comes down to what is the percentage of decay? I mean, if the place is ready to fall down, that’s one thing; but if they’re not in that situation, then it’s nothing that they have to worry about.
      Q. Well, does the insurance policy here draw a distinction between the percentage of decay that causes a collapse, or does it simply exclude a collapse unless caused by hidden decay?
      A. In this case it covers for hidden decay which causes a collapse.
      Q. And as we said, that means it excludes collapse caused by known decay; correct?
      A. That would be correct.
      The court: But not known decay if it’s hidden by water; right?
      The Witness: Correct.
      The court: So hidden really doesn’t matter whether they know about it or not if it’s hidden, like, by water.
      The Witness: Yeah, they don’t know about it.
      The court: Oh. You mean even if they know about it, if it’s hidden by water, they don’t know about it? Is that your testimony?
      The Witness: Well, what is happening is if they’re being told by a third party that you have decay, and the question then becomes well, how severe is the decay, is it something that means that the next day the pier is going to collapse, or is it in five years the pier might collapse. So it becomes a factual situation. So they may be told by somebody that hey-
      The court: If they’re told there’s serious decay but it’s hidden by water, then that’s hidden decay; isn’t it?
      The Witness: That’s correct.
      The court: Right. So it doesn’t matter what they know, does it? As long as it’s hidden by water, it’s hidden decay; right?
      The Witness: Yes.
      The court: So it don’t matter what they know.
      The Witness: Right.
      The court: Okay, How about if at low tide you could see that there were twisted piers. Is it still hidden decay because at high tide it’s covered by water, in your opinion?
      The Witness: Well, the piles-there’s a flow of probably five feet every day in the Delaware River, it goes up and down; but you still, in order to see those piles, have to be in a boat. You can’t see them from topside.
      The court: So it’s not just covered by water that’s hidden, it’s if you can’t see it from the top.
      The Witness: Right.
      The court: So then to my question, even if there are twisted piers that show decay that you can see at low tide, then it’s still hidden decay; right?
      The Witness: That is correct.
      N.T., October 6, 2009, pg. 190 line 14- pg. 196 line 12.

      . The standard for expert testimony in Pennsylvania is the incredibly lax criteria of “reasonable pretension to expertise.” See Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995).

       N.T. May 27, 2008, pg. 77 line 7.11.

      . N.T. May 27, 2008, pg. 15 line 2 - pg. 20 line 10.

      . N.T. May 27, 2008, pg. 109 line 7 - pg 110 line 12.

      . N.T. May 27, 2008, pg. 99 line 22 - pg. 102 line 20.

      . N.T. May 27, 2008, pg. 106 line 15 - pg 107 line 15.

      . N.T. May 27,2008, pg. 109 line 2 - pg. 114 line 9. Plaintiff’s other pier expert, William Castle admitted that those “A” frames were not properly designed and did not arrest the out shore movement of the pier and were either inadequate or futile. His testimony was unequivocal:
      Q. You don’t know if it extended the life that pier by one hour do you?
      A. No I don’t.
      Deposition of William Castle, pg. 175 line 9-12.

       N.T. May 27, 2008, pg 45 line 18-20.

      . N.T., May 27, 2008, pg. 81 line 14-pg. 82 line 3.

      . N.T., May 27, 2008, pg. 82 line 11 - pg. 83 line 15.

      . Plaintiff claims this opinion is relevant because they inexplicably, incorrectly, but explicitly, state that the calculation of the actual cash value of a pier is a calculation not of the value of a pier as defined in the policy, but rather is the calculation of the proper adjustment or settlement of a property damage insurance claim.

      /Ñ.T., May 27, 2008, pg. 91 line 14-19.

      CN.T. May 27, 2008, pg. 128 line 17-25.

      . N.T. May 27, 2008, pg. 105 line 11-17.

      . N.T. May 27, 2008, pg. 52 line 2-4.

      . N.T. May 27,2008, pg. 68 Line 25-pg. 70 line 7. Mr. Mahoney is certainly qualified to provide expert testimony on the issue of insurance bad faith. The bad faith aspect of this lawsuit is addressed in a separate opinion, in which the “fields” of interpretation of insurance contracts, claims handling procedures and loss adjustments are the appropriate field of expertise. With respect to the depreciation to be applied to the replacement cost of this pier and the application of the definition contained in the insurance contract in question herein these fields of expertise are irrelevant.

      . “The purpose of this standard is not, however, to render proof needlessly difficult, but to avoid speculation under the rubric of ‘expert opinion.’” Betz v. Erie Ins. Exchange, 957 A.2d 1244, 1258 (Pa. Super. 2008), app. denied 995 A.2d 350 (Pa. 2010). Accordingly, speculative testimony from an expert witness is properly stricken. As was explained in Kravinsky v. Glover, 396 A.2d 1349, 1356(Pa. Super. 1979): “An expert fails this standard of certainty if he testifies that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.”

      . “[A] witness who demonstrates by his own testimony that he has no experience or special knowledge of the matter at issue is incompetent as an expert.” Marlowe v. Lehigh Twp., 441 A.2d 497 (Pa. Commw. 1982).

      . An insufficient use of methodologies that fit the issue disqualifies the witness. In Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003), the Supreme Court precluded expert testimony because the tests performed by the witness, although possibly standard in engineering generally, were not specifically tailored to the issue, which concerned safety in chewing food. The explicit ruling in Grady was that the methodology employed did not fit any question for determination in the case.

      . “[T]here must be some factual predicate forthe opinion identified on the record...” Starr v. Veneziano, 560 Pa. 650, 663 n.10; 747 A.2d 867, 874 n. 10 (2000). An opinion premised on a fact which has “absolutely no evidence to support...the opinion is without a proper foundation...” Jones v. Wilt, 871 A.2d 210, 215 (Pa. Super. 2005). Where the disclosure reveals that the opinion is not based on facts that the jury could find from the evidence but rather is based on “conjecture or surmise” or “mere possibilities” it must be excluded. See Viener v. Jacobs, 834 A.2d 546, 558 (Pa. Super. 2003), app. denied 579 Pa. 704, 857 A.2d 680 (2004). “The expert testimony must have an adequate basis in fact.... If the testimony is expressed in a deficient manner, then it is considered incompetent.” Kelly v. Thackray Crane Rental, Inc., 874 A.2d 649, 653 (Pa. Super. 2005).

      . Because of the manner in which this judgment was taken, this court could not rule upon defendant’s post verdict motions. Nonetheless, a new trial should be ordered.


source: Caselaw Access Project

author: MARK, J.,

license: Public Domain

text:
    Barcia v. Fenlon

      C.P. of Monroe County,
    no. 5067 CV 2010.

      John J. Miravich, for plaintiff.

      Todd Weitzmann and Joseph S. Wiesmeth, for defendants.

      January 5, 2011—
   MARK, J.,

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa.R.A.P. 1925(a)

Plaintiff has appealed, or has attempted to appeal, our order dated September 29, and entered September 30, 2010, that denied his motion for post trial relief. After the appeal was filed, we issued an order directing plaintiff to file a statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). Plaintiff complied. We now file this opinion pursuant to Pa.R.A.P. 1925(a).

For the reasons that follow, we believe that plaintiff’s appeal is procedurally defective, and therefore should be dismissed or quashed. In the alternative, we believe that the substantive order we issued in this equity action should be affirmed because our decision was supported by the facts, the law, and the equities of this case, and further, properly answered the narrow, stipulated issue the parties asked us to decide.

Viewed in isolation, this case stems from a special membership meeting of the Winona Lakes Property Owners Association, Inc. (the “association”) called for the purpose of voting on the removal of some or all of the members of the association’s board of directors (the “board” or “board of directors”). Viewed in full context, however, this case has its genesis in and is part of an ongoing dispute between the association’s current minority faction, with whom plaintiff is aligned, and the current majority faction, with whom the individual defendants are aligned — a fact pattern that is unfortunately all-too-familiar in the affairs of homeowner associations. A brief historical summary of the disputes between the parties is necessary to a full understanding of this case and our decision.

The feud has generated substantial personal animosity between the competing factions in general and between board members in particular. Disputes have risen to the level where physical altercations, necessitating police involvement, have erupted during association meetings and, as a result, constables are now present during meetings to maintain order. (See N.T., 6/8/10, 4-5 and 31-34, and Joint Exhibit 7, p. 4; N.T., 9/29/10, 21-29; and Appendices A and B)

In addition, the competing factions have taken turns attempting to use corporate and legal maneuvering to unseat directors, amend the procedures by which directors may be removed, or both. These tactics have led to the filing in this court of at least three separate but related equity actions, including this case, that were decided in 2010.

Initially, on December 24,2009, plaintiff filed an action in equity (the “competing amendment case”) seeking to preliminarily and permanently enjoin the association from submitting to its members competing, proposed by-law amendments, both of which pertained to the removal of directors, in a manner that plaintiff believed was contrary to the association’s by-laws and Pennsylvania law. Plaintiff also sought an interpretation of the proper procedures for amendment of the by-laws. Five of the six majority directors who are defendants in this case were named as defendants in the competing amendment case.

At the preliminary injunction hearing, an agreement was reached that resolved all issues except the interpretation issue. On May 27, 2010, we issued an order confirming the amendment procedure set forth in the by-laws and directing that the amendment proposed by plaintiff be mailed to members in accordance with the established procedure. A copy of that order is attached as Appendix A. Our ruling was issued without prejudice to the right of the association to mail its own amendment or the right of either faction to solicit support for their respective proposals.

Next, while the competing amendment case was being litigated, a minority director, Daniel D’Arco, was removed from office by a vote of the majority faction on the board. As a result, Mr. D’Arco filed an equity action seeking to preliminary and permanently enjoin the association and other directors from removing him from office. All six of the majority directors who are defendants in this case were named as defendants in Mr. D’Arco’s suit. On May 13, 2010, this court, through the Honorable Arthur L. Zulick, issued an opinion and order preliminarily enjoining the association and the majority directors from removing Mr. D’Arco from the board. A copy of Judge Zulick’s opinion is attached as Appendix B.

On June 2, 2010, shortly after Judge Zulick issued his opinion and while follow-up issues were brewing in the competing amendment case, plaintiff commenced this equity action — the third in the series — seeking an order preliminarily and permanently enjoining the individual defendants from acting as members of the association’s board of directors. Plaintiff’s requests for injunctive relief were based on his belief that, during a special membership meeting held on May 16, 2010, the individual defendants were voted out of office.

On June 8, 2010, the date scheduled for a preliminary injunction hearing, plaintiff, most if not all of the individual defendants, the attorneys for all parties, and what seemed to be a large number of association members appeared and entered the courtroom. Before the hearing convened, the attorneys asked to speak with the undersigned. During the discussion, the attorneys requested that they be permitted to present a stipulation of facts on the record, but in chambers. The request was made for two reasons. First, counsel represented that the disputes between the competing factions had escalated to the point where a physical altercation, requiring police response, had occurred. Counsel wanted to calm the situation and prevent future eruptions by avoiding a contested hearing in the courtroom while emotions were still high. (See N.T., 6/8/10, 4-5 and 31-32; N.T., 9/29/10, 21-29) Second, the attorneys agreed that a full hearing was not necessary since they had discussed and largely reached agreement on a stipulated set of facts and a limited legal issue that could be decided based on the stipulation and briefs. Counsel represented that they had been authorized to present the stipulation in the manner they requested. We accepted counsel’s representations, granted their request, and allowed the attorneys to present their stipulation in chambers, but on the record.

The entire stipulation was recorded verbatim. Counsel confirmed, on the record, that they had been authorized by their clients to present the stipulation. (N.T., 6/18/10, 5) Counsel then recited the stipulation which consisted of: a) the submission, and in some instances the annotation, of ten (10) joint exhibits; b) defendants’ stipulation, in whole or in part, to the averments of designated paragraphs in plaintiff’s complaint; and c) agreements regarding the conduct of the special meeting, the votes cast at the meeting, the manner in which the association has historically conducted business, and related matters. Id. at 3-34.

Based on the stipulated record, the relevant facts may be summarized as follows:

The association is a Pennsylvania non-profit corporation. It is the property owners association for the subdivision known as Winona Lakes, a planned residential community located in Middle Smithfield Township, Monroe County, Pennsylvania. The individual defendants are duly elected members of the association’s Board of Directors. Plaintiff is a member in good standing of the association. As discussed, plaintiff is aligned with the minority faction of the Association and the board; the individual defendants are part of the majority faction.

In early 2010, plaintiff caused a “request for special meeting of the owner-members in good standing” to be prepared and circulated for signature. The request read as follows:

We, the following owner-members in good standing of the Winona Lakes Property Owners Association, hereby request that a special meeting of the owner-members be scheduled pursuant to Section 6.3 of the By-Laws of the association for the purpose of voting to remove members of the board of directors in accordance with [Section 5303(f) of the Uniform Planned Community Act,] 68Pa.C.S.A. Section 5303(f) Removal of members. (Joint Exhibit 1) (brackets and emphasis added).

Plaintiff obtained the requisite number of signatures to call for the special meeting. Accordingly, the meeting was called for the requested purpose. Notice of the meeting was mailed to association members in good standing. (N.T., 6/8/10, 5-6 and 9, and Joint Exhibit 6)

Prior to the meeting, the majority directors sent information and requests pertaining to the meeting to all association members through articles in the community newspaper and a separate mailing from the board. In their communications, the majority directors: a) reminded association members about the special meeting; b) articulated their belief as to what the minority faction was attempting to accomplish by calling the meeting; c) requested that members attend the meeting; and d) sought proxy votes from members who could not attend in person. Id. at 7-10, Joint Exhibit 4, and Joint Exhibit 7, pp. 1 and 12. Proxy votes were actively and openly solicited. The majority directors asked members who could not attend to give their proxies to Stephen Foster, a member of the association’s finance committee, and provided information about Mr. Foster. Id. Neither plaintiff nor any other association member objected to proxy voting while proxy votes were being solicited.

Ultimately, more than 200 association members gave Mr. Foster their proxy and, at the special meeting, Mr. Foster cast 219 votes as an agent for these members. (N.T., 6/8/10, 20-21) Mr. Foster was not the only person to request, submit, or attempt to submit proxy votes. On May 15, 2010, the day before the special meeting, the association received from plaintiff a certificate of proxy for 3 7 proxy votes. Id. at 10 and Joint Exhibit 8. Additionally, plaintiff’s wife, also a member of the minority faction, solicited and submitted proxies. However, her proxy votes were rejected due to defects in the proxy documents. Id. at 10-11 and 26-27 and Joint Exhibit 8. (N.T., 9/29/10, 11-12) Daniel D’Arco, the director who filed the case heard by Judge Zulick and a person affiliated with the minority faction, also submitted proxies. Id. at 10-11 and Joint Exhibit 9. Like the initial petition calling for the special meeting, the proxy certificates submitted by plaintiff’s wife and Mr. D’Arco referenced the Uniform Planned Community Act (the “act”). Specifically, the certificates cited Section 5310 of the act, 68 Pa. C.S.A. Section 5310, pertaining to proxy votes. (Joint Exhibits 9 and 10)

The special meeting was held, as scheduled and noticed, on May 16,2010. Immediately prior to, or at the beginning of, the meeting, plaintiff’s attorney contacted counsel for the association and objected to the use of proxies. (N.T., 6/8/10,17; N.T., 9/29/10, 14-15) The objection was overruled. As indicated, no objections had previously been lodged.

At the meeting, a total of 394 qualified votes were cast. Of those, 247 votes were cast by proxy, and 147 votes were cast in person by members who appeared at the meeting. An additional six members were present but chose to cast their votes by proxy. (N.T., 6/8/10, at 18-21 and Joint Exhibits 2 and 3) The parties stipulated that, if the proxy votes are counted, no directors were removed. Id. at 20.

The parties agreed that the special meeting was the first special membership meeting ever called to address the removal of a director. It was also the first time that the association used proxy voting. As to proxy voting and the provisions of the act, the Pennsylvania Nonprofit Corporation Law (the “NCL”), 15 Pa.C.S.A. Section 5101 et. seq., and the association’s by-laws, the parties agreed that the association had conducted business in accordance with the act, but had never formally adopted, through its by-laws, any provision of the act, including the provision allowing proxy voting, that was not legislatively made retroactive. The parties also agreed that the association’s by-laws do not, as permitted under the NCL, specifically provide for proxy voting. (N.T., 6/8/10, 16 and 22-26)

Finally, as part of the stipulation, the parties agreed that the sole, limited issue for this court to decide was whether any member of the association’s board of directors was removed as a result of the vote of the membership on May 16, 2010. (N.T., 6/8/10, 5. See also N.T., 7/23/10, 8; N.T., 9/29/10, 17; plaintiff’s brief in support of motion for permanent injunction, p.2; plaintiff’s brief in support of post trial motions, p.2)

On July 23, 2010, following transcription of the stipulation and review of the briefs filed by all parties, we convened a hearing to announce our decision. During the hearing, we ruled that no member of the board was removed as a result of the vote taken at the special meeting. We then summarized our analysis of the case and the rationale for our decision (N.T., 7/23/10, 2-12) A written order setting forth our ruling was entered on August 5, 2010.

Subsequently, plaintiff filed post trial motions which were briefed by all parties. A hearing on plaintiff’s motion was convened on September 29,2010. During the hearing, the attorneys presented oral argument. Thereafter, we reiterated and supplemented the reasons previously given for our ruling and indicated that our decision would stand. An order denying plaintiff’s motion for post trial relief was entered on September 30, 2010.

On October 29, 2010, plaintiff filed this appeal. In his notice of appeal, plaintiff indicated that he was appealing from the September 30, 2010 order denying his post trial motions. To date, no party has entered judgment on the August 5, 2010 order that decided the stipulated issue in this case and dismissed plaintiff’s pleadings.

Given this history, we believe that plaintiff’s appeal is procedurally defective. As noted, judgment has not been entered on the verdict. Thus, the appeal is, at best, premature. See Underwood v. Wind, 954 A.2d 1199 (Pa. Super. 2008); Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523 (Pa. Super. 2006). Additionally, but along the same lines, an appeal from an order denying a motion for post trial relief is not proper. An appeal properly lies from the entry of judgment. See Fanning v. Davne, 795 A.2d 388 (Pa. Super. 2002). For these reasons, we believe that the appeal is defective and should be dismissed or quashed.

In the alternative, if plaintiff is found to have properly perfected his appeal and preserved issues for appellate review, we believe that the rationale expressed during the announcement hearing and the hearing on plaintiff’s motion for post-trial relief is for the most part sufficient to address any issues that plaintiff is deemed to have preserved for appellate review, and further, to show that our decision was supported by the facts and equities of this case. (N.T., 7/23/10, 2-12; N.T., 9/29/10, 2-29) In supplementation and amplification of our on-record statements, we offer the following:

From the beginning, plaintiff has maintained that resolution of this matter requires only the academic exercise of statutory interpretation. He does so through a syllogistic argument. As his first premise, plaintiff asserts that, under applicable law, a property owners association may use proxy voting only if it has adopted through its by-laws either the proxy voting provision of the act or another proxy voting procedure as permitted under the NPCL. As his second premise, plaintiff asserts that the association’s by-laws did not specifically allow proxy voting. Therefore, plaintiff concludes, the association was not permitted to use proxy voting and the proxy votes cast during the special meeting must be disallowed. According to plaintiff, if proxy votes are not counted, at least five of the six individual defendants were removed from office and, as a result, we should have ruled that at least five directors were voted off the board. This argument ignores both the limited issue which the parties asked us to decide and the facts, circumstances, histoiy, and equities of this case.

Initially, we did not, as plaintiff contends, “allow” proxy voting. The association, prompted in part by plaintiff’s reference to the act in the request for special meeting he circulated, instituted the proxy voting procedure used in this case. It did so without any objection from plaintiff until the eleventh or twelfth hour. Similarly, we did not, as plaintiff implies, determine that the association was statutorily authorized, now or in the future, to use a proxy voting procedure. Rather, in answering the narrow question the parties asked us to answer, we simply found that, under the specific facts and circumstances of this equity case, it would have been completely inequitable and unjust to have disallowed the proxy votes or ruled that any directors were removed from office as a result of the vote taken at the special meeting.

When plaintiff filed this action, he invoked the equity jurisdiction of this court. A corollary, plaintiff subjected himself to equitable principles, defenses, and analyses, as well as the equitable resolution of the case. Neither plaintiff’s actions nor the removal of directors that he sought were equitable under the facts presented.

The facts are clear from the record. Plaintiff circulated a request for special meeting that specifically referenced the act. While plaintiff is correct that the association did not adopt the proxy voting procedures of the act, the act nonetheless allows proxy voting. After the special meeting was called, the board actively and openly solicited proxy votes. The majority directors were not the only persons soliciting proxies. As indicted, plaintiff presented a certificate of proxy for 37 proxy votes. In addition, plaintiff’s wife and Mr. D’Arco, both of whom were obviously aligned with plaintiff and the minority faction, solicited and actually submitted proxy votes. In fact, the certificates they submitted specifically referenced the proxy voting provision of the act. While proxies were being solicited, neither plaintiff nor any other member of the association lodged an objection to the proxy voting procedure. It was not until immediately before or at the beginning of the meeting that plaintiff, through his attorney, objected to the use of proxies. Of course, by that time: a) almost 250 association members in good standing had given proxies that they reasonably believed would be effective; b) plaintiff had the opportunity to see which members were in attendance and had undoubtedly made his own assessment as to the likely outcome of the vote if proxies were disallowed; and c) it was too late for members who had given proxies to attend the meeting in person. Along similar lines, this action was filed only after the vote had been tallied and plaintiff (and the minority faction) had calculated what the outcome might be if proxy votes were not counted.

In short, plaintiff’s call for the meeting referenced a statute that allows proxy voting. While the association had not formally adopted a proxy voting by-law, proxy voting is routinely used in corporate affairs and is permissible under both the NCL and the act. Many members of the association gave proxies which they believed valid. Plaintiff and others who are aligned with him participated in the proxy process. His wife and Mr. D’Arco submitted proxies specifically referencing the provision of the act that allows proxy voting. Plaintiff did not lodge a timely, good faith objection to the use of proxies; rather, he waited until commencement of the meeting when asserting an objection would apparently lead to the result that he sought to achieve. Had plaintiff truly wanted to raise a principled or legal obj ection to proxy voting, and preserve a legitimate equity-based challenge to the result of the meeting, he should have refrained from prompting and participating in the proxy process and lodged a timely objection. He did not. Instead, he continued the gamesmanship, the corporate and legal maneuvering, and the attempts at manipulation that both factions have unfortunately exhibited throughout their feud. Equity does not and should not countenance this type of gamesmanship. Equity jurisdiction exists to promote fairness, not to allow a litigant, or a faction, to gain advantage.

Additionally, disallowing the proxy votes and granting the relief requested by plaintiff would have adversely impacted not only the individual director defendants, but also, many other members of the association. Disallowing the proxy votes would have effectively disenfranchised the almost 250 association members (including minority faction members) who gave their proxies under the reasonable good faith belief that votes cast using the proxies would be counted. Such a ruling would also have nullified almost sixty-three percent (63%) of the votes cast and, if plaintiff’s assessment of the overall vote count was accepted, would have resulted in the removal of at least five directors duly elected by the membership at large based on the vote of 147 members who constituted only thirty-seven percent (37%) of the qualified votes cast at the meeting.

Under these circumstances, we found that, even though the association had not adopted a specific proxy voting by-law, it would have been inequitable and unjust to have disallowed the proxy votes and ruled that any member of the board had been voted out of office. We stand firmly by our decision.

Alternatively, but for the same reasons, even if all proxy votes were disallowed based on the absence of a by-law authorizing proxy voting, the proper equitable remedy would not have been to order removal of the individual directors, but rather, to nullify the vote in its entirety and order a re-vote at another meeting scheduled with notice to all members of the association that they must appear to vote. That remedy would have promoted fairness. It would not, however, have resulted in a finding that any member of the board had been removed from office which, as noted, was the only issue this court was asked to decide.

As he did in the proceedings before this court, plaintiff raises an alternative argument on appeal. Specifically, plaintiff contends that the 219 proxy votes cast by Mr. Foster should not have been counted because Section 5.3 of the association’s by-laws contains a provision that prohibits any single member from casting more than ten votes. (Joint Exhibit 5, p.4) This contention may be disposed of quickly.

Under Section 5 of the association’s by-laws, an owner-member is entitled to one vote for each lot owned. The specific by-law referenced by plaintiff provides that “[i] n any event, no owner...may cast more than ten (10) votes regardless of the number of lots owned.” Id. By its terms, this provision limits the number of votes an individual member may cast based on lot ownership. However, the provision does not limit the actions that an agent may take on behalf of a principal.

Black’s Law Dictionary defines the term “proxy” as follows:

A person who is substituted or deputed by another to represent him and act for him, particularly in some meeting or public body. An agent representing and acting for principal. Also the instrument containing the appointment of such person....
Written authorization given by one person to another so that the second person can act for the first, such as that given by a share holder to someone else to represent him and his shares at a share holder’s meeting. Black’s Law Dictionary, p 1103-04 (5th ed.) (West 1979).

In this case, as counsel for plaintiff candidly acknowledged, Mr. Foster did not cast 219 votes for himself; rather, he cast 219 proxy votes “as an agent for” other members. (N.T., 6/8/10, 20-21). Since Mr. Foster was simply acting as an agent for other association members (in the same way that Mr. D’Arco acted and as Mrs. Barcia attempted to act), and there was no allegation that Mr. Foster voted more than ten times for himself or any member whose proxy he held, there was no violation of the by-laws.

For these reasons, we believe that plaintiff’s appeal should be dismissed or quashed. In the alternative, for the reasons expressed during the announcement hearing and the hearing on plaintiff’s motion for post trial relief, as well as those stated in this opinion, we believe that our decision should be affirmed.

      . The operative order in this case was entered on August 5, 2010.

      . Later, during the hearing on plaintiff’s post-trial motions, the attorneys representing plaintiff for some reason tried to downplay and minimize the concerns expressed when all counsel made the unusual request to present an on-record stipulation in chambers in lieu of a hearing. (N.T., 9/29/10,24-26) Counsel for defendants, on the other hand, had a different recollection {Id. at 27-28) - a recollection that comports with the history recited in the text of this opinion and the exhibits presented in this case. (See Joint Exhibit 7, p.4, and Appendix B)

      . The undersigned has routinely used the procedure of announcing decisions in appropriate cases, especially where, as here, a prompt decision is prudent. Typically, an oral decision is given that is more comprehensive than the announcement in this case. However, as the parties were informed and observed for themselves, a criminal trial unexpectedly ran over into the day of the announcement hearing and, during the time scheduled for the announcement itself, the jury came back with a question. As a result, the reasoning given on the record was abbreviated. (See N.T., 9/29/10, 14-15) Nonetheless, the basic reasons for the decision were recited. In addition, a more complete rationale was articulated during the subsequent hearing on plaintiff’s motion for post-trial relief. (Id. at 2-29) The statements of rationale given during both hearings provide the reasons for our decision and are supplemented and amplified in this opinion.


text:
    Southeastern Pennsylvania Trans. Authority v. Philadelphia Transit Consultants

      Thomas S. Biemer, for plaintiff.

      Bruce D. Lombardo, Richard T. Abell and Michael J. Hook, for defendant.
    January 19, 2011
   BERNSTEIN, J.,

—Before the court defendant has appealed from the discovery order of December 6, 2010. This order reads:

And now, the 6th day of December, 2010, upon consideration of plaintiffs southeastern transportation authorities motion to compel depositions answers, and any response thereto, it is hereby ordered that the motion is granted as follows:
1. Defendant Philadelphia Transit Consultants abused the work product doctrine during the deposition of Leonard Rattigan by invoking the work product doctrine improperly and instructing the witness not to answer certain questions;
2. Defendant Philadelphia Transit Consultants is hereby ordered to reproduce Leonard Rattigan within (10) days of the date of this order to answer all questions for which Mr. Rattigan was previously directed improperly not to answer on the basis of the work product doctrine;
3. Defendant Philadelphia Transit Consultants abused the work product doctrine during the deposition of Thomas Farrell by invoking the work product doctrine improperly and instructing the witness not to answer certain questions;
4. Defendant Philadelphia Transit Consultants is hereby ordered to reproduce Thomas Farrell within (10) days of the date of this order to answer all questions for which Mr. Farrell was previously directed improperly not to answer on the basis of the work product doctrine.

This is a dispute between SEPTA and defendants over the design and construction services provided by defendants for an elevated rail structure. According to the complaint, PTC provided design and engineering support and other professional services in connection with the project.

Pursuant to a consultant contract for construction management services dated January 7, 1997, defendant provided construction management and other services for SEPTA. When SEPTA discovered severe cracking and spalling of concrete on portions of the installed precast concrete deck panels, (the haunch claims) SEPTA initiated litigation. SEPTA and the defendants entered into a settlement agreement whereby defendants agreed to make the needed repairs. Nonetheless, after repairs, portions of the elevated railroad continued to fall and defendants left the project, allegedly breaching their obligations under their settlement agreement. Oversight of the construction performed by several companies had been the responsibility of a “joint board of control.” A Mr. Rattigan and a Mr. Farrell were both active participants in that board of control.

In 2004 SEPTA filed a second lawsuit. That litigation was withdrawn after the parties entered into a tolling and standstill agreement to permit further investigation. The present litigation is the resumption of the 2004 litigation.

Plaintiff SEPTA noticed for deposition Mr. Leonard Rattigan individually and asked for designation of a corporate designee. Pursuant to the notice of deposition, PTC designated Mr. Rattigan as their corporate representative concerning “PTC’s responsibilities pursuant to the settlement release and indemnity agreement dated June 26, 2000, including but not limited to those as described by PTC in their answer to the complaint.”

Mr. Rattigan is an engineer who currently works for defendant BP Americas, Inc. He had been a member of the supervisory “joint board of control.” At deposition Mr. Rattigan was asked to describe factual observations and his personal professional conclusions as to the causes of the falling concrete at the project. Counsel for PTC directed the witness' not to answer questions.

For example, counsel for movant asked:

“During any of your discussions, this is still in 1999, you were getting up to speed on the haunch claim, did you have discussions regarding the proposed cause of the haunch distress?”

Opposing counsel objected, claiming that it was asking about “value or merits of the claims and therefore is protected work product.” In argument at the bar of the court during the discovery hearing, counsel for defendant acknowledged that this witness had no discussions whatsoever with counsel, and acknowledged that all his information came from discussions with the board. It is these discussions with the board that counsel claims are protected by some barely articulated “work product privilege.”

When asked how discussions with non-lawyer individuals or other board members could possibly be protected by the attorney work product privilege, counsel for defendant said: “Your honor we are not applying the attorney work product.” When the court asked what other work product privilege was involved counsel said: “It’s the company representative work product protection.”

Apparently, counsel seeks to claim that Pa.R.Civ. P. 4003.3 precludes any questions about any internal discussions as to the substantive cause of the haunch problems. Internal substantive discussions relevant to issues presented in this case are not protected. It is absurd to claim a corporate designee may refuse to answer questions as to corporate knowledge because it was the topic of internal technical and substantive discussions which did not involve counsel.

The specific proposition being advanced by this appeal is that internal discussions about the factual cause of the haunch problem can remain hidden. Appellant claims that factual conclusions, factual statements, factual opinions, and theories expressed in internal discussions by professionals not involving attorneys are not discoverable. This proposition is wrong.

Discussing what caused the haunch distress is not a value of a claim. It’s a factual conclusion. It’s a scientific conclusion. It’s an expert conclusion and discoverable. Likewise, discoverable is the answer to the next proper question, namely “is that your own professional conclusion or what somebody told you?” Likewise, discoverable is the answer to the next proper question, namely “who told you?” That answer may reveal an entire army of experts who have been telling PTC for decades that they had a problem. This investigation by competent professionals would be the only responsible corporate response to a complaint or problem and is totally discoverable.

The witness Rittigan was also specifically asked:

“During any of your discussions, this still in 1999, when you were getting up to speed on the haunch claim, did you have discussions regarding the proposed cause of the haunch distress?”

The witness was asked:

“Mr. Rattigan during the time you worked on the haunch distress issue, 1999,2000, 2001,2002, was there a time where you had discussions regarding what PTC or the entities that comprise PTC believed was the cause of the haunch distress?”

The witness was improperly directed not to answer these questions.

Even though these questions asks only whether or not any discussions occurred and do not yet ask for any substance, counsel for defendant refused to permit Mr. Rattigan to testify. By this incredibly broad interpretation of an unarticulated “internal discussion” privilege which has never been accepted in Pennsylvania jurisprudence, counsel seeks to hide everything the company or any of the individuals involved in decisionmaking knew about the problem in 1999, 2000, 2001, or 2002.

The deposition of Mr. Thomas Farrell was equally obstructed. Mr. Farrell was a vice-president at Parsons, Brinckerhoff Construction Services, Inc. Questions concerning his factual knowledge, observations, and conclusions as a construction professional were objected to and he was directed not to answer. For example, Mr. Farrell was asked:

Q.: Did you look at any design documents to determine what was causing the haunch problems?
A.: No.
Q.: Did you talk to anybody about was causing this problem?
Counsel for defendant objected:
“To the extent it calls for mental impressions, conversations, opinions during the litigation, I am instructing you not to answer. That is. work product and it is protected.”

Mr. Farrell’s was asked:

“Did you ever come to a conclusion as to this is you personally — did you ever come to a conclusion based on your work on a resolution as to what caused the haunch or distress?”

The question was specifically directed to his own personal conclusions about the factual cause of the haunch problem. The question asks nothing about the value or merit of any claim. Nonetheless, counsel for defendant again objected and directed him to not answer the question. This is improper.

Counsel has taken the position that anything factual, or opinion, whether its source is personal knowledge, internal corporate expertise or external expertise which in any way touches on any factual determination or factual observations about the cause of the problem is not discoverable. They seek to preclude discovery of any knowledge gained by expert opinion either provided by the experts who did the construction or the repair or outside evaluative experts.

Defense counsel even objected to questions of board level discussions about “bolt tightening.” Counsel also objected to the question: “Was there any consideration given to any other causes besides the bolt over tightening as contributing to the haunch problem?”

Protection from discovery does not, to any extent, protect any firsthand knowledge or observations, does not protect any firsthand conclusions of an individual having personal knowledge and it certainly cannot protect a designated corporate representative presented to testify on behalf of a corporation as to corporate knowledge. Neither can it possibly protect factual or business discussions with experts not specially retained in this litigation or other professionals who have opined on the causes of the failure.

This rule does not protect evidentiary facts or communications. It protects only internal conclusions as to strategy, tactics, and value of this claim. The statements of non-attorney professionals employed by defendants, not their attorneys, analyzing a technical problem over decades for the purpose of solving a problem are admissible in evidence and perforce discoverable. Indeed, when testified to by a corporate designee they are perhaps not only discoverable but may even be binding on the defendant. Plaintiff herein seeks purely factual information regarding the cause of the haunch distress.

Clearly without question the factual questions asked of these witnesses, especially of the corporate designee who was being questioned as the company representative can be answered without any reference to any opinions concerning the value or merits of this claim. Factual conclusions and factual information, and expert opinion not produced for litigation. All of which is entirely discoverable. This style of deposition objection should have disappeared with adoption of the first discovery rules.

Further, it is the burden on the party seeking privilege protection to prevail and demonstrate privilege. No such demonstration whatsoever has been made.

      . Apparently, there was no determination whether there was a germ of protected material within the factual question being asked since the direction not to answer was made to questions asking only about whether any conversation had even occurred.

      . See TM v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008). “However the work product privilege is not absolute and items may be deemed discoverable if the product sought becomes a relevant issue in the case.”

      . One is reminded of Jim Carey’s Rule of Evidence 403 objection in “Liar Liar.” When asked for a basis of objection he responded: “Because it is devastating to my case.”


author: PICCIONE, J,

text:
    Commonwealth v. Nunez

      C.P. of Lawrence County,
    no. 469 of 2010, C.R.

      Luanne Parkonen, assistant district attorney, for Commonwealth.

      Dennis A. Elisco, assistant public defender, for defendant.
    January 19, 2011
   PICCIONE, J,

—Before the court for disposition is the petition for writ of habeas corpus filed on behalf of the defendant Tiffany Nunez (hereinafter, “defendant”). Defendant is charged with aggravated assault (18 Pa.C.S.A. §2702(a)(l)), simple assault (18 Pa.C.S.A. §2701(a)(2)), and harassment (18 Pa.C.S.A. §2709(a)(l)). In her petition, defendant argues that the commonwealth is unable to establish a prima facie case as to any of the charges because the testimony adduced at the preliminary hearing demonstrates that she did not act intentionally, knowingly, or recklessly.

A brief summary of the facts alleged indicates that, on the afternoon of April 30, 2010, a fight broke out between Terrance Shelby and defendant’s husband, Raphael Nunez. The fight took place in front of the apartments of defendant and Jeremy McChesney. Several individuals, including Donald Ostrom, were present in the yard while the fight occurred. At some point during the altercation, defendant approached the group of individuals and stabbed Mr. Ostrom in the upper right arm with a pair of scissors. Shortly thereafter, Officers Chris Hardie and Michael McBride of the Ellwood City Police Department arrived at the scene and arrested defendant. After being advised of her Miranda rights, defendant voluntarily admitted to the officers that she stabbed Mr. Ostrom because Mr. Ostrom and two women stepped onto her porch and threatened her. Based on defendant’s statement and the statements of various witnesses, defendant was charged with the offenses listed above.

On October 5, 2010, defendant filed the instant petition for writ of habeas corpus, arguing that the commonwealth failed to present sufficient evidence to establish a prima facie case as to the charges against her. The court held a hearing regarding defendant’s petition on November 4, 2010. During the hearing, counsel for both parties asked that the court base its ruling on the transcript of defendant’s May 6, 2010 preliminary hearing.

The petition for writ of habeas corpus is the proper means for testing a pre-trial finding that the commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Hendricks, 927 A.2d 289, 290-91 (Pa. Super. 2007). A prima facie case consists of evidence that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of the crime. Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002). The commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 580 A.2d 412, 415 (Pa. Super. 1990). The commonwealth need not prove the elements of the crime beyond a reasonable doubt. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. Additionally the evidence is to be viewed in a light most favorable to the commonwealth, and the commonwealth is entitled to reasonable inferences drawn from the evidence. Id.

Defendant argues that the testimony adduced at her preliminary hearing demonstrates that defendant did not act intentionally, knowingly or recklessly in stabbing Mr. Ostrom in the upper right arm with a pair of scissors. Defendant does not identify the particular testimony that demonstrates she did not act intentionally, knowingly, or recklessly; however, certain testimony from the hearing suggests that defendant did not intend to stab Mr. Ostrom. Officer Hardie testified that, according to defendant’s statement, defendant stabbed Mr. Ostrom after a “black girl” that was near him “picked up a mason jar and threatened to hit [defendant] with it[.]s” N.T., 5/6/10, at 16. Furthermore, Mr. Ostrom testified that “[defendant] wasn’t intentionally trying to stab me” and that “I don’t know who she was trying to stab with them, but she was intentionally trying to hurt somebody that day.” Id. at 6-7. Although the testimony from Officer Hardie and Mr. Ostrom suggests that defendant may have not intended to stab Mr. Ostrom, this testimony does not demonstrate that defendant did not act intentionally, knowingly, or recklessly. In fact, the evidence and testimony elicited during the preliminary hearing suggests that defendant did act with the culpable state of mind required by the statutes she is charged with violating.

Defendant is charged with aggravated assault, simple assault, and harassment. To be guilty of aggravated assault, defendant must have caused serious bodily injury “intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” 18 Pa.C.S.A. §2702(a)(l).

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. 18 Pa.C.S.A. §302(b)(3).

“[F]or the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue.” Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997) (citing Commonwealth v. O’Hanlon, 653 A.2d 616, 618 (Pa. 1995)). The testimony indicates that defendant swung a pair of scissors at a group of people with the intention of stabbing someone. According to Mr. Ostrom, defendant’s husband “and my sister’s boyfriend had got into a fistfight, and that’s whenever she started to freak out, and she came off the railing with the scissors and was swinging them.” Id. at 7. Such actions create a serious risk of injury or death and demonstrate a conscious disregard for that risk. As a result, defendant’s actions are properly characterized as reckless.

Defendant is charged under subsection (2) of the simple assault statute, which requires that a person negligently cause bodily injury to another with a deadly weapon. 18 Pa.C.S.A. §2701(a)(2).

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering that nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. 18 Pa.C.S.A. §302(b)(4).

In her petition, defendant argues that the charges against her should be dismissed because the testimony at the hearing demonstrated that she did not act intentionally, knowingly, or recklessly. Although it may be inferred from the surrounding circumstances that defendant acted at least recklessly, the commonwealth need only demonstrate that defendant acted negligently under subsection (2) of the statute. The commonwealth presented sufficient evidence indicating that defendant acted negligently since she should have been aware of the substantial risk created by her actions.

Defendant is also charged with harassment, which requires an “intent to harass, annoy or alarm another[.]” 18 Pa.C.S.A. § 2709(a). “An intent to harass may be inferred from the totality of the circumstances.” Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002). Testimony from the preliminary hearing indicates that Mr. Ostrom and several other individuals were on or near defendant’s property, that defendant was in an argument with some of those individuals, and that someone may have threatened defendant. N.T., 5/6/10, at 7,16. There was also testimony indicating that there were two young children inside defendant’s apartment at the time of the fight between Mr. Shelby and Mr. Nunez. Id. at 16. Based on this evidence, the court can reasonably infer that, in stabbing Mr. Ostrom, defendant intended to alarm those that were allegedly threatening her and attacking her husband with the goal of driving them away from her apartment. As a result, the commonwealth presented sufficient evidence that defendant acted with intent to harass or alarm.

As stated above, the testimony elicited at the preliminary hearing does not support defendant’s claim that she did not act intentionally, knowingly, or recklessly. Moreover, the commonwealth presented sufficient evidence and testimony to meet its burden at this stage that defendant acted with the required culpable states of mind.

Therefore, defendant’s petition for writ of habeas corpus is denied.

ORDER OF COURT

And now, January 19, 2011, the court having held a hearing on November 4,2010, regarding defendant Tiffany Nunez’s petition for writ of habeas corpus, with Assistant District Attorney Luanne Parkonen, Esquire, appearing and representing the commonwealth, and Assistant Public Defender Dennis A. Elisco, Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

1. The defendant’s petition for writ of habeas corpus is denied pursuant to the attached opinion.

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