text:
    22 Front Street LLC v. Gorodetzer

      Daniel R. Utain and Mohammad A. Ghiasuddin, for plaintiffs

      David P. Heim, George Bochetto, John A. O ’Connell and Jeffrey W. Ogren, for defendants Brett A. Berman, Esquire, Robert S. Tintner, Esquire and Fox Rothschild, LLP

      Gaetan J. Alfano, Douglas K. Rosenblum and Peter Shindel for defendants N. Lily Khalif, Laurie Rosard, Steve Rosard, Maryellen Gorodetzer, Kristen Casper, Marilyn Casper, Ade Bolden, Marshall Gorodetzer, Genny Dunne, Christopher Dunne, Deann Zufall, Elpi Paradiso, Tom Paradiso, Aditya Maini, Meghan Maini, Steven L. Lepore and Nadica Kracun
    June 4, 2013
   GLAZER,J.,

In this action, plaintiff 22 Front Street. LLC t/a 22 Front, L.P. (hereinafter “22 Front Street”) alleges claims for tortious interference with contractual relations, abuse of process and slander of title against defendants Fox Rothschild, LLP, Robert S. Tintner, Esquire and Brett A. Berman, Esquire (hereinafter “Fox defendants”). Plaintiff 22 Front Street is the owner and developer of the condominium building located at 22 Front Street in Philadelphia, Pa. The Fox defendants were retained to represent the resident unit owners of the condominium building in an action instituted against 22 Front Street and Friends Center City Retirement Community to stop 22 Front Street from changing the use of the condominium.

22 Front Street Condominiums were marketed as a “luxury residential facility” and “premier” high-end building offering “five star” city living. 22 Front Street negotiated with Friends Center City Retirement Community in or around August 2009 for the sale of certain units in the 22 Front Street Condominium Building to members of the Friends. Shortly thereafter, 22 Front Street entered into an agreement to sell to the Friends or its members a minimum of ten condominium units and one commercial unit at the condominium.

In or about My or August 2010, the existing residents of the condominium learned the condominium was no longer being marketed as a “premier” “luxury residential facility” and was being advertised to the general public through flyers as a retirement community. Many of the existing residents became concerned about the marketing and the use intended by the Friends.

On August 30, 2010, the Fox defendants, on behalf of the residents, sent a letter to 22 Front Street objecting to the marketing of the building as a “retirement community,” “Philadelphia’s newest retirement concept” and an “urban retirement living community.” The demand letter was copied to Sovereign Bank, 22 Front Street’s lender. The demand letter stated that the actions of 22 Front Street were in direct violation of the terms of the declaration, the public offering statement and the Pennsylvania Condominium Act, since unanimous consent of the unit owners approving use change was required.

The demand letter advised that if 22 Front Street and the Friends did not agree to immediately cease its unlawful marketing of the condominium as a retirement community, the residents would seek emergency relief from the court. 22 Front Street contacted a representative of the Fox defendants and warned them that the residents’ objections to the sale of units to the Friends were frivolous and improper. 22 Front Street further advised the Fox defendants they would hold the residents and the Fox defendants liable if they continued to interfere with the agreement.

On October 1,2010, the Fox defendants filed a complaint on behalf of twenty-two residents against 22 Front Street and the Friends seeking to enjoin 22 Front Street and the Friends from marketing and converting the condominium into a retirement community (“the underlying action”). The complaint further sought monetary damages in connection with various construction defects and omissions. On October 4, 2010, the residents filed a petition for preliminary injunction to enjoin the change of use from a “luxuiy residential facility” to a “retirement community” and to enjoin the sale.

On October 8, 2010, 22 Front Street counsel wrote to the Fox defendants alleging the underlying action impaired 22 Front Street’s ability to sell its units to buyers. In the letter, 22 Front Street stated the following:

If you do not withdraw your claims against 22 Front Street, 22 Front Street will file an action against each of your clients, you and your law firm for tortious interference with our prospective relations with the Friends and tortious interference with it prospective agreements with other qualified buyers.

On November 15, 2010, the petition for preliminary injunctive relief was denied. On December 2, 2010, the Fox defendants appealed the denial on behalf of the residents to the Superior Court.

On April 29, 2011, 22 Front Street once again wrote to the Fox defendants and complained that the lawsuit was interfering with 22 Front Street’s sale of the condominium units. 22 Front Street again demanded the Fox defendants to dismiss the lawsuit and threatened litigation in the event the suit was not dismissed. The Fox defendants informed the residents of the threat of suit by 22 Front Street if the suit was not withdrawn. 22 Front Street also had direct communications with several residents concerning the threat of suit in the event the lawsuit was not withdrawn.

On May 19, 2011, the Fox defendants informed the Friends that the matter was resolved as it pertained to their respective clients. On August 31, 2011, the residents agreed to settle, discontinue and end each of the counts for equitable relief in the second amended complaint against the Friends. The agreement provided in part:

. . . this Agreement is not intended to, nor does it, in any manner release, remise or discharge 22 Front street, L.P., Marc Kaplin or the Executive Board of 22 Front Street except that the claims for declaratory and injunctive relief contained in Counts I, IV, VI and VII of the Second Amended Complaint, or any subsequent Amended Complaint, will be marked settled, discontinued and ended as part of this settlement.

22 Front Street was not a signatory to the settlement agreement.

On August 2, 2011, the residents filed a third amended complaint including a claim against 22 Front Street for tortious interference with the settlement agreement between the Friends and the residents. On August 18, 2011, the Fox defendants withdrew the appeal of the denial of the petition.

In October 2011, 22 Front Street commenced the instant matter against the Fox defendants alleging claims for slander of title, wrongful use of civil process, abuse of process and tortious interference with contractual relations. Presently before the court is the Fox defendants motion for summary judgment.

DISCUSSION

In count I (tortious interference with contract) and count IV (slander of title), 22 Front Street alleges the Fox defendants acted improperly by commencing the underlying action seeking to enjoin the sale of the condominium units to the Friends for the purpose of converting the building into a retirement community. The filing of the underlying action to enjoin the sale of the condominium units to the Friends is protected by the absolute judicial privilege.

Pursuant to the judicial privilege, a person is entitled to absolute immunity for “communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.” This privilege is based on the “public policy which permits all suitors, however bold and wicked, however virtuous and timid, to secure access to the courts of justice to present whatever claims, true or false, real or fictitious, they seek to adjudicate.” To assure such claims are justly resolved, it is essential that pertinent issues be aired in a manner that is unfettered by the threat of libel or slander suits. Importantly, the existence of the privilege does not depend upon the motive of the defendant in making the allegedly defamatory statement. The privilege is absolute and cannot be destroyed by abuse.

The reasons for the absolute privilege are well recognized. The privilege is extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests. Likewise, the privilege exists because the courts have other internal sanctions against defamatory statements, such as perjury or contempt proceedings.

In applying the above principles to the case sub judice, the filing of the underlying action by the Fox defendants, as well as the petition for injunctive relief, appeal and the subsequent amended pleadings in that action is protected by the privilege. The filing was made in the regular course of the legal proceedings and was pertinent and material to the legal proceeding. As such, the statements contained within the legal pleadings are protected by the absolute judicial privilege and therefore the Fox defendants’ motion for summary judgment is granted as to the claims for tortious interference with contract and slander of title.

CONCLUSION

Defendants’ motion for summary judgment is granted in part and the claims for tortious interference with contract (count I) and slander of title (count IV) are dismissed. All other aspects of the motion are denied.

ORDER

And now, day of June 4, 2013, upon consideration of defendants Fox Rothschild, LLP, Robert S. Tintner, Esquire and Brett A. Berman, Esquire’s motion for summary judgment, plaintiff’s response in opposition and all supplemental submissions by the parties, it hereby is ordered that the motion for summary judgment is granted in part as to count I (tortious interference with contractual relations) and count IV (slander of title) and said claims are dismissed. Defendants’ motion for summary judgment is denied as to count II (abuse of process).

      . The resident unit owners have been dismissed from this action.

      . 22 Front Street financed the development of the condominium through two Sovereign Bank loans issued on October 17, 2005. By May 15, 2008, with a majority of the units unsold, 22 Front Street defaulted on the loans. On February 9, 2009 and February 12, 2009, respectively, Sovereign Bank confessed judgment against the personal guarantors, the Kaplins and 22 Front Street. In March, 2009, the Kaplins filed petitions to strike or open the judgments and to stay execution.

      . The claim for malicious prosecution was dismissed by the court upon the filing of preliminary objections.

      . Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (Pa. 2004), quoting Post v. Mendel, 510 Pa. 213, 507 A.2d 351, 355 (1986).

        . Id.

      . Greenberg v. Aetna Ins. Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied sub nom., Scarselletti v. Aetna Casualty & Surety Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); Triester v. 191 Tenants Ass’n, 272 Pa. Super. 271, 277-79, 415 A.2d 698, 702 (1979).

      . Pawlowski v. Smorto, 403 Pa. Super. 71, 80, 588 A.2d 36, 41 (1991).

      . In count one, 22 Front Street alleges the Fox defendants interfered with 22 Front Street’s contract with its lender, Sovereign Bank, by sending the August 30, 2010 demand letter to Sovereign. The Fox defendants argue that said claim is barred by the absolute judicial privilege. However, it is clear from the record that the claim fails because 22 Front Street suffered no damage as a result of said letter. Marc Kaplin, the managing member of 22 Front Street, admitted the letter did not interfere with its relationship with Sovereign. (Exhibit “II” Marc Kaplin deposition in supplemental memorandum of law in support of Fox defendants motion for summary judgment). Since actual damage is an element of tortious interference of contract and 22 Front Street failed to prove damage as a result of said letter, the claim for tortious interference with contract as it pertains to the August 30, 2010 demand letter is dismissed.

      . The motion for summary judgment as it pertains to abuse of process is denied since genuine issues of material fact exist.


source: Caselaw Access Project

author: CEISLER, J.,

license: Public Domain

text:
    Kelleh v. Leuthy

      George D. Walker, Jr., for plaintiffs

      Charity C. Hyde and Asher B. Chancey, for defendant
    April 8, 2013
   CEISLER, J.,

I. Facts and Procedural History

The instant matter stems from an automobile accident, one occurring on December 29, 2010, in which defendant Raymond Leuthy (hereinafter “defendant”) allegedly rear-ended a vehicle driven by plaintiff Thomas Kelleh and occupied by plaintiff Ellen Woods (hereinafter “plaintiff Kelleh,” “plaintiff Woods,” or jointly “plaintiffs.”). Complaint at ¶ 7.

Plaintiffs subsequently engaged the legal services of Lany Pitt & Associates, P.C. (hereinafter “Pitt”). Plaintiffs’ response to defendant’s preliminary objections, ex. A. Pitt sent a letter to defendant’s residence on March 7, 2011, informing defendant that Pitt represented plaintiff Kelleh and that Pitt intended to recoup damages from defendant in connection with the aforementioned accident. Id. It does not appear that defendant (or someone on his behalf) replied to this letter. 1

On March 10,2011, Pitt contacted State Farm Insurance Company (hereinafter “State Farm”), defendant’s automobile insurance provider, regarding the December 29, 2010 accident and, over the course of roughly 21 months, exchanged a number of letters with representatives of State Farm regarding the plaintiffs. Id. at exs. A-B. This correspondence continued through December 4, 2012, when Pitt informed State Farm that plaintiffs would be filing suit against defendant within five days. Id. at ex. A. Plaintiffs then filed their complaint against defendant on December 18, 2012, eleven days before the statute of limitations ran. See 42 Pa.C.S. § 5524 (negligence-based personal injury lawsuits must be filed within two years of the incident that generated the alleged injuries).

On or about January 21, 2013, Pitt was sent a letter by Charity C. Hyde, Esq. of Bennett, Bricklin & Saltzburg LLC, informing Pitt that defendant was, in fact, deceased, and that Ms. Hyde’s firm had been retained to represent the deceased’s interests in this action. Defendant’s preliminary objections, ex. C.

On January 23, 2013, defendant filed preliminary objections regarding plaintiff’s complaint. Providing evidence that defendant had died on January 17, 2011, defendant argued that “[ujnder Pennsylvania law, since the plaintiffs’ complaint was not filed during [defendant’s] lifetime, the complaint against him is a nullity,” and that the complaint should thus be dismissed with prejudice. Id; see id, ex. C (certificate of death).

On February 20, 2013, plaintiffs filed a response to defendant’s preliminary objections arguing that until receiving the January 21, 2013 letter, plaintiffs did not know that defendant had died and that, in light of this, plaintiffs should be given time to file an amended complaint against defendant’s estate.

This court sustained defendant’s preliminary objections in an order dated2/20/13 (docketed on2/22/13), dismissing plaintiffs’ complaint with prejudice. Plaintiffs then filed a motion for reconsideration on February 25, 2013, which defendant contested. This court denied plaintiffs’ reconsideration motion on March 5, 2013, whereupon plaintiffs filed the instant appeal.

On March 18, 2013, This court directed plaintiffs to provide a detailed and itemized statement of errors complained, pursuant to Pa. R.A.P. 1925(b), the response to which was filed on March 22,2013. Plaintiffs ’ statement of errors is reproduced, verbatim, herein:

1. The court failed to reconsider the response of the plaintiffs when entering the order dismissing their claim with prejudice on the day plaintiffs filed their response.
2. The court failed to reconsider the arguments of the plaintiffs as to the dismissal with prejudice of their claims where plaintiffs’ untimely response to the preliminary objections of defendant was late by eight days and there was no prejudice to the defendant.
3. The court failed to consider that State Farm Insurance Company was not forthright in its dealing with plaintiffs’ counsel by concealing or not informing them by suggestion of death of defendant 19 days after the accident from an unrelated cause and where plaintiffs [sic] counsel had corresponded with State Farm Insurance Company on at least fifteen occasions.
4. The court failed to consider an alternate, less final, resolution of the issues where plaintiffs only learned of the death of the defendant on January 23, 2013. The court could have given plaintiffs thirty days in which to bring suit against the estate of Raymond Leuthy.
5. The court failed to consider oral argument before dismissing plaintiffs’ case with prejudice.

II. Discussion

. This court asserts that plaintiffs’ appeal be denied for the following reasons:

1. Plaintiffs filed their complaint against defendant after his death;
2. Plaintiffs subsequently failed to launch a new action against defendant’s estate and/or representatives before the statute of limitations had run; and
3. There is no clear, precise and convincing evidence of concealment or fraud on the part of the defendant/his representatives that would support tolling of the statute of limitations.

It is well-settled law in Pennsylvania that “[a] dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect.” Thompson v. Peck, 320 Pa. 27, 30 (Pa. 1935); see also, e.g., Lange v. Burd, 800 A.2d 336, 341 (Pa. Super. Ct. 2002); Custren v. Curtis, 572 A.2d 1290, 1291 (Pa. Super. Ct. 1990); Longo v. Estep, 432 A.2d 1029, 1030 (Pa. Super. Ct. 1981); Marzella v. King, 389 A.2d 659, 661 (Pa. Super. Ct. 1978). In light of this, “[since] a dead person cannot be a party to an action commenced after his death, substitution of a personal representative of the dead person’s estate is improper.” Valentin v. Cartegena, 544 A.2d 1028, 1029 (Pa. Super. Ct. 1988) (citing Erhardt v. Costello, 437 Pa. 556, 560-561 (Pa. 1970)). Instead, an entirely new complaint must be filed, naming the decedent’s estate and/ or personal representative as the defendant. See Montanya v. McGonegal, 757 A.2d 947, 950 (Pa. Super. Ct. 2000); Custren, 572 A.2d at 1291; Valentin, 544 A.2d at 1029. Such an action must be filed prior to the expiration of the relevant statute of limitations; failure to abide by these constraints results in the time-barring of any future suits regarding the matter. Thompson, 320 Pa. at 30.

However, the court may deem the statute of limitations tolled under certain circumstances, on account of actions taken by a defendant and/or by one of their agents/ representatives. In general “[i]t is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.” Lange, 800 A.2d at 339 (iquoting Hayward v. Med. Cntr. of Beaver Cnty., 530 Pa. 320, 324 (Pa. 1992)). Unintentional fraud or concealment by a defendant or an affiliated individual/ entity may provide a sufficient basis for tolling, Molineux v. Reed, 516 Pa. 398, 403 (Pa. 1987); however, “lack of knowledge, mistake or misunderstanding [on the part of a plaintiff] do not toll the running of the statute of limitations,” Montanya, 757 A.2d at 951. For the statute to be tolled, there must have been some affirmative, independent behavior, on the part of the defendant and/ or by one of their agents/representatives, that misled and was justifiably relied upon by the plaintiff. Kingston Coal Co. v. Felton Mining Co., 690 A.2d 284, 291 (Pa. Super. Ct. 1997) (citing Krevitz v. City of Philadelphia, 648 A.2d 353, 357 (Pa. Commw. Ct. 1994)). The burden of proving such behavior and reliance falls upon the plaintiff, who must do so through the introduction of clear, precise and convincing evidence. Molineux, 516 Pa. at 403.

It is not disputed that the defendant in the instant matter died on January 17, 2011, roughly twenty-three months before plaintiffs chose to file their complaint. In fact, the defendant was already deceased when Pitt began sending letters to the defendant’s home address in March 2011. After sending multiple letters to the defendant and receiving no responses, this should have prompted Pitt to immediately take steps to ascertain the status and/or whereabouts of the defendant.

Plaintiffs’ suit against the defendant was a nullity from inception. See Thompson, 320 Pa. at 30. The statute of limitations had run by the time that plaintiffs discovered that the defendant had passed, meaning that plaintiffs were thus barred from refilling their suit against the defendant’s estate. See id. This court carefully reviewed the entire record and could find no clear, precise, and convincing evidence that State Farm actively misled plaintiffs into believing that the defendant was still alive. Without a factual basis for tolling the statute of limitations, this court was required, by the precedential weight of nearly eighty years of case law, to sustain defendant’s preliminary objections, dismiss plaintiffs’ complaint, and deny plaintiffs’ request for leave to file a complaint against defendant’s estate.

In Montanya v. McGonegal, 757 A.2d 947 (Pa. Super. Ct. 2000), the Superior Court provides instructive analysis to determine whether, in the instant matter, State Farm engaged in misleading behavior. In Montanya, the parties were involved in an automobile accident on May 26, 1997. Plaintiffs then corresponded with the defendant’s insurance carrier, exchanging letters over a months-long period, but ultimately chose to file suit on April 27, 1999. Unbeknownst to the plaintiffs, however, the defendant had died on December 27, 1997, sixteen months prior. On July 1, 1999, representatives of the deceased defendant filed preliminary objections, arguing that the suit should be dismissed, as: 1. the initial complaint against the deceased was void; 2. The statute of limitations had run; and 3. the defendant’s estate administrator was not named as a party prior to the running of the statute. The plaintiffs submitted an answer in opposition and requested leave to file a new complaint, even though the statute of limitations had expired. Montanya, 757 A.2d at 949. Despite plaintiffs’ arguments, the trial court sustained the preliminary objections, dismissing the case.

The plaintiffs appealed this ruling to the Superior Court, raising a number of issues including (and most relevant to the instant matter) that, prior to the filing of suit, the insurance company had allegedly misled them as to the state of the defendant. Though the insurance company never actually said that the defendant was still alive, its correspondence with the plaintiffs always referred to the defendant as “Our Insured: Robert McGonegal.” Id. at 951. In addition, the insurance company never reached out to the plaintiffs to let them know that the defendant was deceased. The plaintiffs argued that, given these circumstances, the statute of limitations should be tolled, thereby allowing them to file a new complaint against defendant’s estate.

The Superior Court found that the conduct of the insurance company was insufficient grounds to warrant tolling the statute of limitations and stated that it was the plaintiffs’ duty to determine whether the defendant was deceased. Noting that it was the plaintiffs’ duty to determine whether the defendant was deceased, the Montanya court flatly stated that “[rjelying on a heading, which was used merely to identify the policy/claim at issue, was not reasonable and does not constitute the type of fraud/concealment which permits... tolling.” Id. at 951. In addition, the Montanya court held that the insurance company’s “mere silence or nondisclosure” regarding the defendant’s status was not a basis for tolling, given that the company did not owe an affirmative duty of disclosure to plaintiffs. In short, the action (or inaction) of the insurance company under the circumstances did not constitute the affirmative, independent behavior required by the tolling standard.

In the instant appeal, the plaintiffs maintain that State Farm “was not forthright in dealing with [plaintiffs’ counsel by concealing or not informing them [that defendant had died].” Plaintiffs’ statement of errors, ¶ 3. The only evidence that plaintiffs provide to bolster this argument are copies of letters from State Farm, which refer to the defendant as “Our Insured: Raymond P. Leuthy” and appear (with the exception of the September 13, 2012 letter informing plaintiff Thomas Kelleh that they were closing his file) to be form requests for updated information regarding plaintiffs’ treatment status. See plaintiffs’ response to defendant’s preliminary objections, ex. A. At no point in this chain of correspondence did State Farm actually assert that defendant was alive, nor do plaintiffs claim that there was any affirmative statement made to that effect by State Farm.

As a result, this court determined that the record did not contain clear, precise, and convincing proof that State F arm actively misled plaintiffs into believing that defendant was still alive. Plaintiffs’ reliance on the State Farm form letter headings as proof of defendant’s continued existence was not reasonable. State Farm was under no obligation to inform plaintiffs, without any prompting, of defendant’s death. As such, there was no basis for this court to toll the statute of limitations, thus necessitating this court’s dismissal of plaintiffs’ suit against defendant and denial of plaintiffs’ request to file a new complaint against defendant’s estate.

II. Conclusion

For the aformentioned reasons, this court respectfully requests that plaintiffs’ appeal be denied.

      . Pitt sent identical letters to Mr. Leuthy on April 10, 2012 and April 26, 2012. There is no evidence in the case record that suggests that these follow-up letters were responded to by either Mr. Leuthy or someone on his behalf. See plaintiff’s response to defendant’s preliminary objections, ex. A.


author: TERESHKO, J,

text:
    Perkins v. Beltway Capital, LLC

      Juanita V. Perkins, pro se appellant.

      William D. Longo, for appellee First Option Title Agency.

      Andrew Jay Soven and Alexis Gabrielle Coceo, for appellee First Franklin Financial.

      Henry Falkner Reichner and. Michael Olinik, for appellee Deutsche Bank as trustee.

      Daniel S. Bernheim and Rachel Colancecco Heinrich, for appellee Beltway Capital.
    April 16, 2013
   TERESHKO, J,

PROCEDURAL HISTORY

Plaintiff, Juanita Perkins appeals from this court’s orders dated October 4, 2012, wherein this court granted defendants Beltway Capital, LLC and Mortgage Electronic Registration System’s motion for summary judgment as well as a motion to compel settlement submitted by defendant First Franklin Financial Corporation.

FACTUAL BACKGROUND

The instant matter arises out of alleged fraud in connection with a residential loan. In describing how she came to apply for the loan at issue, plaintiff explained that she was in line at a Sunoco station when she heard two men discussing available mortgages in her neighborhood. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 26, line 11 — page 27, line 6; pg. 104, In. 24 — pg. 105, line 13). Plaintiff approached them, and one of the men gave Plaintiff a business card for Ivan Hicks, an employee of Assured Lending. (Plaintiff’s deposition attached as Exhibit “N” to defendant’s motion for summary judgment, pg. 27, lines 5 — 24). Plaintiff hoped that by refinancing she could pay a number of small bills and perform some renovations on her home. (Plaintiff’s deposition attached as Exhibit “N” to Defendant’s Motion for summary judgment, pg. 31, lines 2-5; pg. 171, line 4 — pg. 172, line 11).

Shortly after the discussion at Sunoco, plaintiff contacted Ivan Hicks, and Mr. Hicks subsequently met plaintiff once at her home and twice thereafter at her place of work. (Plaintiff’s deposition attached as Exhibit “N” to defendant’s Motion for summary judgment, pg. 28, line 1 —page 29, line 24). Plaintiff reported that upon their initial meeting, she provided Mr. Hicks with documentation of her salary and a copy of the deed to her home. Id.

On examination of plaintiff’s residential loan application, her gross monthly income is listed as $4,500 per month. (Uniform Residential Loan Application attached as exhibit “A” to defendant’s motion for summary judgment). Plaintiff’s employers are listed as St. Nicholas and Lane Bryant, and her monthly income from Lane Bryant is reported to be $2000 per month. (Uniform Residential Loan Application attached as exhibit “A” to defendant’s motion for summary judgment). The itemization of plaintiff’s gross monthly income lists her base employment income as $2500, and her “Other” income as $2000 per month. (Uniform Residential Loan Application attached as exhibit “A” to defendant’s motion for summary judgment).

Plaintiff’s complaint alleges that her sole source of income at the time she applied for the loan was the $800 per month she earned as a sales assistant for Lane Bryant. (Plaintiff’s second amended complaint, ¶¶71-72). However, as plaintiff stated in her deposition, she also collected her late husband’s pension. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 17, line 4 — page 21, line 19).

Furthermore, plaintiff earned income as a cantor at St. Nicholas of Tolentine Church, which is listed under the employment section of her loan application. Plaintiff reported singing at three services per week during the summer and two services per week during the remainder of the year, for which she earned $70 per service, resulting in additional income of $560 to $840 per month depending on the season. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 17, lines 8 —18). Plaintiff also sang at weddings and funerals as needed, for which she was paid $185 per wedding and $85 per funeral. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 18, line 20 — page 19, line 3). Plaintiff reported singing at one to three funerals per week, which would result in additional income of $340 — $ 1020 per month. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 99, line 7 — page 100, line 4).

Plaintiff was approved for a residential loan in the amount of $225,000, with $69,350.51 in cash to plaintiff after plaintiff’s prior mortgage and some smaller bills were paid. (Plaintiff’s deposition attached as Exhibit “N” to defendant’s motion for summary judgment, pg. 61, line 19 — 62. line 19). Plaintiff’s monthly payment obligation was $1750.03, which was $830.36 greater than her previous monthly mortgage payment to Aames Home Loan. Prior to the 2006 transaction, plaintiff had been involved in eight prior loans on this property. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 134, line 22 — page 135, line 18). Plaintiff’s original mortgage on the property was obtained on January 31, 1975 in the amount of $7500.00. In her deposition, plaintiff identified the seven subsequent loans on the property as refinance mortgages. They are as follows:

1) August 10, 1976 —$10,450.00
2) February 8, 1983 — $2,426.48
3) March 28, 1994 — $4,027.28
4) July 29, 1994 — $46,410.17
5) August 26, 1997 — $46,699.29
6) January 17, 2002 — $50,732.14
7) September 21, 2004- $128,000.

Plaintiff’s deposition attached as Exhibit “N” to defendant’s motion for summary judgment, pg. 123, line 4 — page 125, line 14.

At the time that plaintiff completed the loan application on May 25, 2006, she expected to be able to make the monthly loan payments because she had secured a new job as a presenter for a drug and alcohol program with a salary of $50,000 per year; however, plaintiff lost the position. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 59, line 6 — page 60, line 21).

The loan closing occurred on May 25, 2006 at plaintiff’s home. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 56, lines 7 — 23). Plaintiff explained that Kamilla Gill, an employee of First Option Title Agency, LLC (hereinafter “First Option”) who was acting as an agent of First Franklin who was the actual lender, brought the necessary paperwork to her home; however, plaintiff alleges that she was unaware of First Franklin’s involvement and believed Ms. Gill was employed by Assured Lending. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 57, lines 3 — 17). Plaintiff further alleges that she did not know that Mr. Hicks was a broker, but believed that he worked with a “short lending company” who worked along with a bank. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 67, lines 1 — 19).

At the time plaintiff obtained the loan in question, First Franklin, plaintiff’s lender, and Deutsche Bank were acting as joint venturers for the purpose of obtaining loans to be used to populate the Real Estate Mortgage Investment Conduit, consisting of a pool of assets comprised of mortgage loans under a pooling and servicing agreement dated August 1, 2006. (Plaintiff’s second amended complaint, ¶20). The assets in the Real Estate Mortgage and Investment Conduit were held under the provisions of the pooling and servicing agreement by Deutsche Bank as trustee for the benefit of the investors. Id.

Plaintiff’s mortgage describes plaintiff as the “Borrower,” First Franklin as the “Lender,” and Mortgage Electronic Registration Systems, Inc. as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns.” (Plaintiff’s second amended complaint, ¶112). Assured Lending was acting as a broker, and the settlement statement includes a broker fee to Assured Lending in the amount of $ 11,250. (Settlement statement attached as exhibit “D” to defendant’s motion for summary judgment).

At the time the loan closing occurred, plaintiff received $69,350.51, a sum which she spent in its entirety. Plaintiff reported that she paid some small bills, replaced the windows on her home and gave some of the money to her mother and sister. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 86, line 12 — pg. 92, line 12).

Plaintiff made only four monthly payments in the amount of $1750.03 and has not made payments on the loan since November 1, 2006. On or about February 28, 2007, Deutsche Bank filed a complaint in mortgage foreclosure against plaintiff. (Plaintiff’s second amended complaint, ¶176). At the time that Deutsche Bank filed the complaint in mortgage foreclosure, the principal balance on the mortgage was $224,462.87, and the interest due was $7,989.41, with late charges in the amount of $262.50. Plaintiff testified at her deposition that she did not have any funds to pay the balance of the loan as she had spent the cash she received at closing, nor was she willing to move out of her home. (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 160, lines 5 — 12). On or about June 18, 2007, Deutsche Bank obtained a default judgment in mortgage foreclosure against plaintiff in the amount of $240,176.15. (Plaintiff’s second amended complaint, ¶187).

By an assignment dated August 28, 2007 and recorded with the Department of Records on September 7, 2007, MERS assigned plaintiff’s mortgage to “Deutsche Bank National Trust Company as Trustee for First Franklin Mortgage Loan Trust 2006-Ffll.” (Plaintiff’s second amended complaint, ¶165). On or about August 8, 2008, Home Loan Services, Inc. assigned the mortgage from Deutsche Bank in its capacity as trustee for First Franklin Mortgage Loan Trust 2006-Ffl 1 to Beltway Capital, LLC. (Plaintiff’s second amended complaint, ¶208).

Plaintiff commenced this action by filinga287 paragraph complaint onNovember 25,2008, alleging that defendants violated the Truth in Lending Act and the Pennsylvania Unfair Trade Practices Consumer Protection Law, most notably by charging her unlawful fees in connection with the loan closing, utilizing a broker without her knowledge, improperly verifying her income and promising her a fixed rate, which she was subsequently denied. (See docket).

The action was removed to U.S. District Court on April 8, 2009 at the request of First Franklin Financial Corporation (hereinafter “First Franklin.”) (See docket). On March 28, 2011, the case was remanded to the Court of Common Pleas of Philadelphia. (See docket).

After plaintiff filed a second amended complaint on May 31, 2011, First Franklin filed preliminary objections to plaintiff’s on June 20, 2011, and Deutsche Bank did likewise on June 21, 2011. (See docket). Beltway Capital and MERS also filed a motion for summary judgment on August 1, 2011. (See docket).

On October 19, 2011, after being advised of a settlement as to all defendants, less Assured Lending, Inc., the Honorable Howland Abramson continued the case for thirty days to permit the filing of a motion for a default judgment against Assured Lending, Inc. (See docket). Judge Abramson further ordered that if plaintiff did not move for a default judgment within thirty days, the case against Assured Lending, Inc. could be nonprossed and marked disposed. (See docket). Plaintiff filed the motion for default judgment against Assured Lending, Inc. on November 19, 2011. (See docket). On December 7, 2011, Judge Abramson dismissed both the motion for summary judgment filed by Beltway and MERS as well as the preliminary objections filed by Deutsche Bank as moot because of the ostensible settlement agreement. (See docket). On January 17,2012, this court entered judgment in favor of plaintiff and against defendant, Assured Lending, Inc. in the amount of $83,000 plus reasonable attorney’s fees and costs, which was remitted to plaintiff. (See docket).

On February 29, 2012, after a review of the docket and correspondence from Beltway, this court concluded preliminarily that all the terms of the settlement agreement may not have been satisfied, thus rendering the agreement potentially null and void. (See docket). Therefore, this court ordered that the summary judgment motion filed under Control # 11080257 and preliminary objections filed under Control # 11091070 be reinstated and that plaintiff’s complaint be reinstated and returned to active status. (See docket).

On April 4, 2012, this court sustained the preliminary objections filed by Deutsche Bank under Control # 11091070, thereby dismissing all claims against Deutsche Bank. (See docket).

On April 16, 2012, plaintiff’s counsel filed a motion to withdraw his appearance. (See docket). On April 20, 2012, this court issued a rule to show cause why plaintiff’s counsel should not be permitted to withdraw, staying the proceedings pending final resolution of the motion to withdraw. (See docket). The rule returnable was held on May 24, 2012, and this court permitted plaintiff’s counsel to withdraw his appearance. (See docket).

On May 24, 2012, First Franklin filed a motion to enforce the settlement. (See docket). On July 12,2012, this court scheduled oral argument on the summary judgment motion filed by Beltway and MERS as well as the motion to enforce settlement filed by First Franklin to occur on July 24, 2012. (See docket).

On October 4, 2012, this court granted First Franklin’s motion to compel settlement, dismissing all claims against First Franklin with prejudice. (See docket). Also on October 4, 2012, this court granted the motion for summary judgment submitted by Beltway and MERS, dismissing plaintiff’s second amended complaint with prejudice. (See docket). On November 5, 2012, plaintiff appealed both of this court’s October 4, 2012 orders and filed two motions for reconsideration. (See docket). On November 19, 2012, this court ordered plaintiff to file her concise statement of matters complained of on appeal. (See docket). On December 12, 2012, plaintiff filed two such statements. (See docket).

The issues to be addressed on appeal are:

1) Whether this court erred by granting Beltway Capital, LLC and Mortgage Electronic Registration System’s Motion for summary judgment; and
2) Whether this court erred by granted First Franklin Financial Corporation’s motion to enforce settlement.

LEGAL ANALYSIS

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2, which states,

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P. 1035.2

In determining whether summary judgment is proper, the record is viewed in the light most favorable to the non-moving party, and all doubts as to whether a genuine issue of material fact exists are resolved against the moving party. Pennsylvania State Univ. v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (Pa. 1992). The appellate court’s scope of review is plenary. O’Donoghue v. Laurel Savings Ass’n, 556 Pa. 349, 728 A.2d 914, 916 (Pa. 1999). A trial court’s decision to grant or deny a motion for summary judgment will only be reversed where the lower court committed an error of law or abused its discretion. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (Pa. 1995).

Plaintiff contends that this court erred by granting summary judgment in favor of Beltway Capital, LLC and Mortgage Electronic Registration System. Summary judgment was properly granted because plaintiff’s claims under the Truth in Lending Act and the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) were required to be raised within the context of the foreclosure action.

Deutsche Bank assigned plaintiff’s mortgage to Beltway on or about March 18, 2008. This occurred after judgment in foreclosure by default was properly entered against plaintiff on June 18, 2007, and damages were assessed by the Honorable Jane Greenspan. (See docket at #070203268). Plaintiff did not file a petition to either open or strike the default judgment. (See docket at #070203268).

After a judgment in mortgage foreclosure has been entered, rescission under the Truth in Lending Act is prohibited. Stuart v. Decision One Mortgage Company, LLC, 2009 Pa. Super. 103, 975 A.2d 1151 (2009). In Stuart, plaintiffs attempted to exercise their right to rescind a home mortgage after judgment in mortgage foreclosure was entered by default, plaintiffs failed to file a petition to either open or strike the default judgment. The trial judge granted defendants’ motion for judgment on the pleadings on the basis that the plaintiffs’ claim was barred by res judicata, and the Superior Court affirmed. Stuart v. Decision One Mortgage Company, LLC, 2009 Pa. Super. 103, Pl, 975 A.2d 1151, 1151-52 (2009). The Superior Court reasoned,

Whether or not the Stuarts raised the claim of violation of the TILA [Truth in Lending Act] in the foreclosure proceedings, they could have raised the defense by asking for rescission. Res judicata applies not only to claims that were made but also to claims that could have been made. See Wilkes v. Phoenix Home Life Mut. Ins. Co., 587 Pa. 590, 902 A.2d 366 (Pa. 2006); Glynn v. Glynn, 2001 Pa. Super. 359, 789 A.2d 242, 249 (Pa. Super. 2001); Chada v. Chada, 2000 Pa. Super. 186, 756 A.2d 39, 43 (Pa. Super. 2000).

Stuart v. Decision One Mortgage Company, LLC, 2009 Pa. Super. 103, P4, 975 A.2d 1151, 1152 (2009)(emphasis in original).

The facts in the instant matter are essentially those in Stuart. Plaintiff could have raised any violations of the Truth in Lending Act by defendants Beltway and MERS within the context of the foreclosure action but did not. Plaintiff’s property was property foreclosed upon in 2007, thus cutting off any attempt by plaintiff to rescind the mortgage.

Plaintiff’s right to cancel the mortgage loan under the UTPCPL is likewise barred by res judicata because plaintiff’s claims under the UTPCPL could have been raised within the context of the mortgage foreclosure action. Rocco v. JP Morgan Chase Bank, 255 Fed. Appx. 638, 643, 2007 U.S. App. LEXIS 27445, P12-13 (2007) (holding that the res judicata doctrine applied to bar the debtors from pursuing UTPCPL claims in an attempt to undo the foreclosure judgment and void the sheriff’s sale because those claims could have been pursued in the context of the foreclosure action).

Thus, in the case at bar this court concluded that permitting the litigation of plaintiff’s claims under the TILA and UTPCPL within the context of this action would improperly nullify the foreclosure judgment because the claims could have been raised within the context of the foreclosure action and are thus barred pursuant to the doctrine of res judicata.

Furthermore, plaintiff’s claims must also fail because there can be no assignee liability under the TILA or UTPCPL based on the facts alleged here. 15 USC 1641(a) provides that:

any civil action for a [TILA] violation...which may be brought against a creditor may be maintained against an assignee of such creditor only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement....

15U.S.C. §1641(a).

In the instant matter, Beltway and MERS had no notice of alleged TILA disclosure violations at the time the mortgage was assigned; therefore, neither entity can be held liable for violations by the creditor.

In addition, defendants Beltway and MERS cannot be held liable for monetary damages under the TILA for failing to rescind plaintiff’s mortgage at her request because:

§ 1640(a) permits only a ‘creditor’ to be held liable for a monetary penalty or an award of attorney’s fees for a TILA violation. Neither §1641 nor any other section provides for a statutory penalty or an award of attorney’s fees to a plaintiff should an assignee fail to respond to a valid rescission notice.

Brodo v. Bankers Trust Co., 847 F. Supp. 353, 359 (E.D. Pa. 1994).

Additionally, there can be no assignee liability under the UTPCPL; thus, plaintiff’s claims against Beltway and MERS under the UTPCPL were properly dismissed. See WM Specialty Mortgage v. Shuttleworth, 82 Pa.D.&C.4th 129 (2007)(dismissing homeowner’s counterclaim for violations of the UTPCPL in a foreclosure action because the alleged violations were committed by the original lender not the foreclosing assignee); (Plaintiff’s deposition attached as exhibit “N” to defendant’s motion for summary judgment, pg. 60, line 13 —pg. 61, line 11).

In order to establish a violation of the catchall provision under the UTPCPL, 73 P.S. §201-2(4)(xxi), plaintiff must establish fraudulent or deceptive conduct engaged in by Beltway and MERS. Bennett v. A. T. Masterpiece Homes at Broadsprings, LLC, 2012 Pa. Super. 60, 40 A.3d 145, 156-57 (2012). Plaintiff cannot point to any misrepresentations made by Beltway or MERS or any interaction whatsoever with representatives of either entity; therefore, plaintiff cannot establish liability against Beltway and MERS under the UTPCPL.

Plaintiff’s second issue complained of on appeal is that this court erred by granting First Franklin’s motion to enforce the settlement agreement.

The enforceability of settlement agreements is governed by principles of contract law. Century Inn, Inc. v. Century Inn Realty, Inc., 358 Pa. Super. 53, 516 A.2d 765, 767 (1986). The court will enforce a settlement if all of the material terms of the bargain are agreed upon. McDonnell v. Ford Motor Co., 434 Pa. Super. 439, 445, 643 A.2d 1102 (1994). A settlement will not be set aside absent a clear showing of fraud, duress or mutual mistake. Rago v. Nace, 313 Pa. Super. 575, 578, 460 A.2d 337, 339 (1983)

In the instant matter, after two lengthy settlement conferences and various drafts of a proposed settlement agreement, the parties agreed upon the finalized version of the settlement agreement on or about December 14,2011. (First Franklin’s motion to compel settlement, ¶7). The settlement agreement required plaintiff to obtain a reverse mortgage with the net proceeds from the reverse mortgage to be distributed to Beltway, in an amount not less than $100,000. (Executed settlement agreement attached as exhibit “A” to First Franklin’s motion to compel settlement). Any net proceeds over $100,000 would be distributed 50%'to Beltway, 40% to First Franklin, 5% to First Option and 5% to Deutsche Bank. (Executed settlement agreement attached as exhibit “A” to First Franklin’s motion to compel settlement).

Thus, per the terms of the settlement agreement, the $224,462.87 plus interest and penalties owed by plaintiff on the mortgage would be reduced to $100,000. Once plaintiff obtained the reverse mortgage, her financial obligations to defendants would be extinguished, and she would be permitted to remain in her home. At the time plaintiff entered into the settlement agreement, she had not made any payments on the mortgage since 2007, she did not remit any funds to defendants, and she was unwilling to leave her home.

The settlement agreement was circulated by counsel, and First Franklin, Deutsche Bank, Beltway and First Option executed the agreement. (First Franklin’s motion to compel settlement, ¶9). After plaintiff executed the settlement agreement, First Franklin sent a check to Beltway on February 17, 2012, which Beltway cashed. Deutsche Bank and First Option also sent checks to Beltway per the terms of the settlement agreement, and Beltway cashed those checks as well. (First Franklin’s motion to compel settlement, ¶10).

Importantly, the executed settlement agreement provides,

C. In consideration of the mutual promises contained therein, the below parties agree to make the following payments to “Beltway Capital LLC” within 20 days of the execution of this Agreement and receipt of a W-9 from Beltway,;
1. First Franklin — $40,000;
2. First Option — $5,000;
3. Deutsche Bank — $5,000.
Once First Franklin, First Option, and Deutsche Bank have remitted the above amount, First Franklin, First Option and Deutsche Bank are fully released from this litigation and neither Perkins nor Beltway shall have any recourse against them should Perkins not be able to fulfill her promises under the Settlement Agreement.

First Franklin, First Option and Deutsche Bank remitted the agreed-upon amounts to Beltway; however, plaintiff failed to fulfill her obligations under the settlement agreement. Per the terms of the agreement, plaintiff has no recourse against First Franklin, First Option or Deutsche Bank. There is no ambiguity in the settlement agreement, and plaintiff, represented by counsel at the time the settlement agreement was reached, does not make any allegations of fraud or duress that would serve to invalidate the settlement agreement. Thus, this court properly granted First Franklin’s motion to compel settlement.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the October 4, 2012 orders granting defendants Beltway Capital, LLC and Mortgage Electronic Registration System’s motion for summary judgment as well as a motion to compel settlement submitted by defendant First Franklin Financial Corporation be affirmed.

      . Plaintiff contends in her complaint that this assignment was ineffective. (Plaintiff’s second amended complaint, ¶¶166-175). However, the assignment was executed by Francis Hallman in his capacity as Assistant Secretary and Vice President of MERS, and his authority to effect the assignment is detailed in his affidavit attached as exhibit “G” to defendant’s motion for summary judgment.

      . The cost to plaintiff to complete the repairs on her home required to obtain the reverse mortgage, the settlement costs, the cost of an appraisal, and any certifications required to obtain the reverse mortgage would also be subtracted from the net proceeds. (Executed settlement agreement attached as exhibit “A” to First Franklin’s motion to compel settlement).


text:
    Hinchey v. University of Pennsylvania Health System

      Thomas M. Hinchey, for appellant

      Kathleen Kramer, Michelle Irene Moses and Jennifer Prettyman Reno, for appellee University of Pennsylvania Health System
    April 24, 2013
   TERESHKO, J,

PROCEDURAL HISTORY

Plaintiff, Kathryn Hinchey appeals from this court’s order entered September 10, 2012 sustaining defendants University of Pennsylvania Health Systems, Trustees of the University of Pennsylvania and/or Staff Physician/or Circulating Nurse/or Staff Nurse/or Personnel/or Transport Personnel at Hospital of the University of Pennsylvania’s preliminary objections, thereby dismissing plaintiff’s complaint.

FACTUAL BACKGROUND

Plaintiff commenced this action for negligent infliction of emotional distress by writ of summons on April 16, 2012. (See docket). Plaintiff alleges that the University of Pennsylvania Health Systems, Trustees of the University of Pennsylvania and/or Staff Physician/or Circulating Nurse/or Staff Nurse/or Personnel/or Transport Personnel at Hospital of the University of Pennsylvania (hereinafter “defendants”) were negligent by allowing her father, Brian Hinchey, to fall from the operating table at the University of Pennsylvania while he was undergoing surgery for placement of an IVC filter on April 17, 2010. (Plaintiff’s complaint, ¶¶ 23-27). Brian Hinchey had recently suffered a massive right MCA stroke with uncal herniation and was assessed as a fall risk. (Complaint, ¶¶ 20, 23). Brian Hinchey sustained impact to his left face and extremities and a laceration to his left forehead. (Complaint, ¶¶ 27, 30).

Plaintiff, Kathryn Hinchey was not present in the operating room when her father fell from the operating table. Plaintiff asserts that she was however present when her father was brought in with fresh injuries and when defendants delayed treating the laceration to Brian Hinchey’s left forehead. (Complaint, ¶¶ 31, 33).

Plaintiff filed her complaint on July 13, 2012. (See docket). Defendants filed preliminary objections to plaintiff’s complaint on August 1, 2012. (See docket). Plaintiff filed an answer in opposition to defendants’ preliminary objections on August 21, 2012. (See docket). On September 10, 2012, this court entered an order sustaining defendants’ preliminary objections and striking plaintiff’s claims for negligent infliction of emotional distress contained in count I of her complaint with prejudice. (See docket).

On October 10, 2012, plaintiff appealed this court’s September 10,2012 order. (See docket). This court ordered plaintiff to file her concise statement of matters complained of on appeal on November 5,2012, and plaintiff complied on November 28, 2012. (See docket). The issue on appeal is whether this court erred by sustaining defendants’ preliminary objections to plaintiff’s complaint where plaintiff could not support a claim of negligent infliction of emotional distress because she did not have a “special relationship” with defendants, nor did she witness the traumatic event.

LEGAL ANALYSIS

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the plaintiff’s complaint. Smith v. Wagner, 403 Pa. Super. 316, 320, 588 A.2d. 1308, 1310 (1990). The standard of review in granting preliminary objections is that “all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true.” Youndt v. First Nat’l Bank, 2005 Pa. Super. 42, P2, 868 A.2d 539, 542 (2005). “A preliminary objection in the nature of a demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the facts alleged.” Petsinger v. Dept. of Labor & Indus., 988 A.2d 748, 753 (Pa.Commw. Ct. 2010) (citing Africa v. Horn, 701 A.2d 273 (Pa.Commw. Ct. 1997)).

The Supreme Court has described the heavy burden facing an appellant from a discretionary trial court determination: “[I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” In re Estate of Mackarus, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused. Brown v. Delaware Valley Transplant Program, 371 Pa. Super. 583, 586, 538 A.2d 889, 891 (1988). If there is any basis for the trial court’s decision, the decision must stand. Id.

Pennsylvania Rule of Civil Procedure 1028(a) (4) establishes the right of a party to file preliminary objections to any pleading on the grounds of legal insufficiency. On appeal, plaintiff contends that this court erred when it concluded that plaintiff could not support a claim of negligent infliction of emotional distress and thus sustained defendants’ preliminary objections.

In Pennsylvania, a claim of negligent infliction of emotional distress is limited to four factual scenarios, which are as follows:

(1) defendant had a contractual or fiduciary duty to plaintiff;
(2) plaintiff suffered a physical impact;
(3) plaintiff was in a “zone of danger” and at risk of an immediate physical injury; or
(4) plaintiff had a contemporaneous perception of tortious injury to a close relative.

Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 2000 Pa. Super. 6, 7, 745 A.2d 25, 27-28 (2000).

In addition to setting forth facts supporting one of these four scenarios, plaintiff must prove immediate and substantial physical harm resulting from defendant’s negligence. Id. at 7,28 (emphasis in original). “Symptoms of severe depression, nightmares, stress and anxiety, requiring psychological treatment, and...ongoing mental, physical and emotional harm” have been deemed sufficient physical manifestations of emotional suffering to sustain a cause of action. Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 45, 633 A.2d 605, 609 (1993) citing Love v. Cramer, 414 Pa. Super. 231, 606 A.2d 1175 (1992). Finally, the harm suffered by plaintiff must be reasonably foreseeable. Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 43, 633 A.2d 605, 608 (1993).

Plaintiff alleges in her statement of matters complained of on appeal that she provided sufficient factual support for a claim of NIED under either factual scenario one (fiduciary duty owed to plaintiff) or four (contemporaneous perception of injury to a close relative.)

In Toney v. Chester County Hospital, relied upon by plaintiff, an evenly divided Supreme Court clarified NIED liability on the basis of a contractual or fiduciary duty, holding that “NIED is not available in garden-variety ‘breach of contractual or fiduciary duty’ cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress. 36 A.3d 83, 84-85 (2011)(emphasis added).

The court also “[found] it prudent to limit the reach of this NEED claim to preexisting relationships involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach.... [T]he special relationships must encompass an implied duty to care for the plaintiff’s emotional well-being.” Id. While not defining each and every relationship that would qualify, the court stated, “[nonetheless, we would hold that some relationships, including some doctor-patient relationships, will involve an implied duty to care for the plaintiff’s emotional well-being that, if breached, has the potential to cause emotional distress resulting in physical harm.” Id. In addition to establishing the existence of a special relationship, plaintiffs alleging NIED on the basis of a contractual or fiduciary duty must set forth facts supporting the standard elements of a negligence claim: duty, breach, causation and damages. Id. at 95.

In the case at hand, plaintiff has not established a special relationship with defendants that would enable her claim for NIED to survive preliminary objections, plaintiff has not offered any explanation of what duty defendants owed to her, nor how defendants breached that duty. Plaintiff’s complaint is legally insufficient to establish that defendants failed to deal with her on equal terms, offered her advice to her detriment, or used their position to harm plaintiff. In the instant matter, if a special relationship existed, it was between defendants and plaintiff’s father. Therefore, plaintiff cannot sustain a claim for NIED based upon a special relationship with defendants.

Second, plaintiff contends that she can recover for NIED under the theory of “tortious injury to a close relative.” However, under Sinn v. Burd, recovery is only permitted where emotional distress occurs as a result of a contemporaneous observation of a defendant’s negligent act, and plaintiff here admits in her complaint that she did not witness the negligence resulting in injury to her father. 486 Pa. 146, 404 A.2d 672 (1979).

The Superior Court in Sinn v. Burd abandoned the “zone of danger” theory in favor of a foreseeability test. 486 Pa. 146, 173, 404 A.2d 672, 686 (1979). Sinn set forth three factors to determine whether plaintiff’s emotional distress was reasonably foreseeable:

1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

Id. at 170, 685.

Factor two, the contemporaneous observance requirement is at issue in the instant matter. The Supreme Court “has consistently denied recovery when the plaintiff has not witnessed the actual accident in which the close relative was involved.” Friend v. Saldana, 1995 Pa. Dist. & Cnty. Dec. LEXIS 211, P13, 23 Pa. D.&C. 4th 316, 325 (1995). In describing the purpose of the contemporaneous perception requirement, the court in Bloom v. DuBois Medical Center stated,

We believe that where the close relative is not present at the scene of the accident, but instead learns of the accident from a third party, the close relative’s prior knowledge of the injury to the victim serves as a buffer against the full impact of observing the accident scene. By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system.... Hence, the critical element for establishing such liability is the contemporaneous observance of the injury to the close relative.

409 Pa. Super. 83, 102 (1991)(quoting Mazzagatti v. Everingham, 512 Pa. 266, 279, 516 A.2d 672, 679 (1986).

The court in Friend v. Saldana discredited plaintiff’s argument that “actual visual observation of the negligent act is not essential where the facts of the case establish the totality of the plaintiff’s sensory awareness combine to convey the nature and import of the events sufficiently to cause emotional injury.” 1995 Pa. Dist. & Cnty. Dec. LEXIS 211, P16 23 Pa. D.&C. 4th 316, 327 (1995). In doing so, the court determined that the cases of Neff v. Lasso, 382 Pa. Super. 487 (1989), and Krysmalski v. Tarasovich, 424 Pa. Super. 121 (1993), served “only to refine the Sinn factor of contemporaneous sensoiy observation to include those situations where the Plaintiff witnesses the events immediately leading up to an accident, the Plaintiff hears the accident occur, and the Plaintiff witnesses the aftermath of the accident.” Friend v. Saldana, 1995 Pa. Dist. & Cnty. Dec. LEXIS 211, P20-21, 23 Pa. D.&C. 4th 316, 329-30(1995).

After thoroughly examining Sinn and subsequent interpretations of the contemporaneous observation requirement, the court denied recovery for NIED in Friend:

In the case sub judice, the facts as evidenced by the complaint indicate only that the plaintiff-children on two occasions witnessed their mother in an unconscious condition. Hence, they only witnessed the aftermath of the alleged negligent conduct of the defendant-doctor, that being the providing of and administration of Demerol to the mother.... Thus, there has been no contemporaneous observation by the plaintiff-children.

Friend v. Saldana, 1995 Pa. Dist. & Cnty. Dec. LEXIS 211, P21, 23 Pa. D.&C. 4th 316, 330 (1995). See also Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986)(denying recovery to daughter and husband of decedent because they did not witness the surgery, the complications of which resulted in her death).

Lastly, the court in Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671 (1991), addressed the contemporaneous perception requirement in the context of negligence by omission. In Bloom, plaintiff-husband came to visit his wife at defendant-psychiatric hospital and found her hanging from shoestrings behind a bathroom door in an apparent suicide attempt. The court denied recovery on the basis that plaintiff did not witness the traumatic event. 409 Pa. Super. 83, 597 A.2d 671, 683 (1991). In examining its prior decisions, the Superior Court noted that it had “phrased the observance requirement as requiring that the plaintiff have observed ‘the accident,’ ‘the negligent act,’ ‘the infliction of the negligent harm,’ ‘the negligent event,’ and the ‘traumatic event’” in order to recover for NIED. Id. at 103, 682. The court determined that the negligence of defendants in Bloom was an omission rather than a traumatic event, but because plaintiff did not observe defendants’ omission, he could not recover for NIED. Id. at 105-6, 683.

In the case at hand, plaintiff cannot recover for negligent infliction of emotional distress (“NIED”) because, as she admitted in her complaint, she did not contemporaneously observe the injury to her father; therefore, her cause of action was properly dismissed. As in Bloom, defendants’ negligence in failing to prevent plaintiff’s father from falling constitutes an omission. Plaintiff did not observe defendants’ omissions; therefore, plaintiff does not meet the contemporaneous perception requirement and cannot recover for NIED.

Plaintiff’s second contention is that this court erred by sustaining defendants’ preliminary objections where, in a separate action brought by plaintiff’s parents, the Honorable Gary DiVito of the Philadelphia Court of Common Pleas overruled similar preliminary objections by orders dated July 18,2012.

However, without getting into detail regarding the merits of the lawsuit brought by plaintiff’s parents, plaintiff’s father’s claim for NIED survives preliminaiy objections because the injuries were suffered by plaintiff’s father, and defendants owed a duty to plaintiff’s father as his medical providers. Therefore, because of the significant distinctions between the two lawsuits, the result in one bears no relationship to the result in the other.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the September 10, 2012 order granting defendants University of Pennsylvania Health Systems, Trustees of the University of Pennsylvania and/or Staff Physician/or Circulating Nurse/or Staff Nurse/ or Personnel/or Transport Personnel at Hospital of the University of Pennsylvania’s preliminary objections, thereby dismissing plaintiff’s complaint be affirmed.

      . Citations from Toney throughout this opinion taken from Justice Baer’s opinion in support of affirmance