author: HERRON, J.,

text:
    In re Onorato

      C.P. of Philadelphia County, O.C.
    No. 514 PR of 2012

      Denis A. Gray, for accountant.

      Edward Gilson, for objectant/principal.
    July 1, 2014
   HERRON, J.,

Introduction

The account filed by an agent under a power of attorney granted by Mary Green raises the issue of whether the agent should be surcharged for breaching his fiduciary duty. Both the account and the agent’s shocking testimony reveal that he failed to exercise the powers for the benefit of the principal; he failed to keep a full and accurate record of all actions, and; and he did not exercise reasonable caution and prudence when he expended the principal’s assets to benefit himself and his family. Based on this record, he is surcharged $283,055, which shall be returned to Mary Green.

Background

Mary Green executed a general power of attorney dated April 5,2006 to appoint Antonio Onorato as her agent. Six years later, Ms. Green filed a petition to obtain an accounting from Onorato after she learned that her residence at 487 Robbins Avenue, Philadelphia, had been subject to a lien due to nonpayment of real estate taxes. After consulting an attorney, she revoked the power of attorney.

Mr. Onorato filed his account on May 28, 2013. On its face, the account raised serious concerns. Although Onorato, as agent, had initially received $551,556.14 in principal, by the end of his agency there was nothing left. The details in the accounting were also troubling. The account revealed, for instance, that Antonio Onorato had signed $117,050 in checks that were made out to himself. Mr. Onorato also signed checks totaling $8,000 that were made out to his son, Salvatore, as well as a $700 check for his wife, Josephine. There were bank service charges for overdrafts and fees totaling $1,105. The account listed undocumented “cash withdrawals” of $13,121. “Online/ electronic banking deductions” with an unknown name of issuer totaled $27,185.64. Finally, nearly six pages in the account listed a staggering $109,988.91 in expenditures for unknown payees and issuers because “cancelled checks were not available.”

Not surprisingly, Mary Green filed numerous objections to this account. After a period of discovery, Mr. Onorato submitted a supplemental account (Ex. R-l) to provide the names of the payees and issuers for the $109,988.91 expenditures listed in the original account. According to this supplemental account, Antonio Onorato had signed $66,850 in checks made out to himself. He signed $7,000 in checks made out to his son Marco Onorato. Mr. Onorato signed checks totaling $2,245.81 to PECO to provide electricity to his own residence at 815 Llanfair Road in Philadelphia. He also signed checks totaling $376 to pay for gas service to his own residence as well as $8,227.00 to pay school taxes on his residence in Abington Township.

In light of these glaring irregularities, a hearing was held on the objections. Mr. Onorato testified that prior to retiring, he had been a handyman and tailor. In 2000, he was introduced to Mary Green (“Mary”) by her cousin for whom he had done home repairs. From 2000 to 2006, he saw Ms. Green three or four times a week. During these visits, he took her shopping or did whatever she needed at her house. On Sundays, she came over to Mr. Onorato’s house for dinner. He testified that around 2006 he noticed that Mary did not look well and advised her to see a doctor who diagnosed her as suffering from colon cancer. After her operation, she returned home and Mr. Onorato brought food to her every day. He was also aware that Mary had vision problems and suffered from macular degeneration.

According to Mr. Onorato, Mary told him that she did not want to go into a nursing home as some of her relatives advised. She asked him to fix up a house she had at 815 Llanfair Road, but after spending $10,000 on the roof, he discovered termites and concluded it “was impossible to repair that house.” He testified that Mary then told him to “[bjuild a house over there.” She also told him that she wanted to do something for him by naming him power of attorney. And, in fact, she contacted an attorney on her own, Craig Falcone, who prepared several documents for her signature. On April 5, 2006, she executed the general power of attorney appointing Antonio Onorato as her agent (Ex. R-3); she signed a will appointing Onorato as executor and primary beneficiary of her residuary estate (Ex. R-4); and she appointed Onorato to act on her behalf under a medical power of attorney (Ex. R-5).

Mr. Onorato constructed a new house on the 815 Llanfair property which, he asserts, Mary gifted to him by the deed she signed on August 3, 2006. He explained that Mary had wanted him to fix it up so she could live there with him rather than having to go to a nursing home. Throughout this period, Onorato maintained that Mary was aware the he was building the house and consented to all the expenditures for it because she knew “I only make $1,000 a month in my pension.” When asked how often Miss Green used to watch him build it, Onorato candidly replied: “She came a few time.” When the house was finished, Onorato moved into it. Mary came over for Sunday dinners, but never moved in herself. Nonetheless, Mary signed checks to pay for the architect, insurance, lumber, cabinets and Johnny-on-the Spot at the construction site. (Ex. R-9).

Mr. Onorato admitted that he wrote checks from Mary’s accounts to cover expenses at his own properties because he asked and she told him he could do so. For example, he wrote checks from her account to pay PGW bills and water bills for 2316 Faunce Street which he owned. He also testified that most of the checks that he wrote to himself were to pay for the construction of the house at 815 Llanfair Road. He paid the real estate taxes on his residence at 815 Llanfair Road from Mary’s account which he explained:

Because she told me to pay the tax. Because let’s say this way. I only made $1,000 a month, my pension. If she wouldn’t told me to build the house, I wouldn’t have no reason to do the house, because I can’t afford to pay the tax. So she said pay the tax for the house on Faunce Street, for the house Godfrey Avenue, one she have on Godfrey where she living now and the 815 Llanfair Road.

On cross-examination, Onorato was asked about this co-mingling of funds and how it could be reconciled with the acknowledgment provision in the power of attorney document he signed that stated: “I shall keep the assets of the principal separate from my assets.” Ex. R-3 at 6. His response: “Well, to tell you the truth, I don’t read that.” He also stated he had not read the other provisions of the acknowledgment which stated in full:

I shall exercise the powers, for the benefit of the principal.
I shall keep the assets of the principal separate from my assets.
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal.
Signed: Antonio Onorato Date: 4-5-06

In fact, he admitted that he had never kept a record of the checks he wrote for Mary. And when asked: “Now, when you talk about all the bills, you’re talking about her bills; you’re talking about your bills,” Onorato replied, “Right.” Although Mary pays most of the bills for the 815 Llanfair Road property where Onorato resides, she never lived there. In his defense, Mr. Onorato stated that all the checks he made out to himself totaling $117,000 in the initial account had been gifts or house building expenses, though he also conceded no gift taxes had ever been paid. The supplemental account also lists $66,850 in checks that Onorato signed and made out to himself. These checks, Mr. Onorato explained, were for his residence at Llanfair Road.

Mr. Onorato further testified that after Mary cashed a check she had signed for $88,000, she gave that money to his wife, Josephine, to buy a house at 7968 Castor Avenue. The supplemental account lists a check 1803 for $3,000 to pay for zoning at this property. Mary’s name is not on the deed of the Castor Avenue property. When asked to explain how it was in Mary’s interest to pay for his wife’s house, he responded that “Well, she live with us. She’s family.” Mr. Onorato acknowledged that Mary had yet to move into the Llanfair house: “She don’t want to come and live with me. She can come today. It’s no problem.” When asked if all these transfers out of Mary’s account were for estate or Medicaid planning, Mr. Onorato stated “I don’t know what you mean by that.”

Mary Green testified that she had asked Onorato to be her power of attorney “to take care of the financial concerns about me” and she had trusted him. She stated that all the money went to Onorato and that she would ask him for it when it was needed but she hesitated to do so. It had not been her intent, she testified, that Onorato could do whatever he wanted with her money. She stated she had never moved into the Llanfair Road residence that Onorato built and had never spent even a night there. She denied that she had intended the Llanfair Road house be a gift to Onorato with a response reflecting both befuddlement and innocence:

Q: Do you recall signing checks for the benefit — to build the house, for the architect, to the electrician?
A: I don’t remember signing, signing, signing, signing, signing. I knew that I was doing my check and then getting enough money out that he could pay his people. That was my — and it wasn’t a gift, no gift this. It’s maybe I can help you out with making the money available for people to do the job. You’re going to build a house, good.
9/17/13 N.T. at 88 (Green)(emphasis added).

According to Mary, Mr. Onorato never told her she could live with him at anytime:

Q: Did Mr. Onorato say you can live there with him anytime?
A: No.
9/17/13 N.T. at 90.

Ms. Green also denied that she had asked to live with anybody:

No, never mentioned that. I’m an only child, so I make my own fun. No, I didn’t. Some people are. That’s a shame. They can’t stand not to have somebody with them.
9/17/13 N.T. at 91.

Legal Analysis

Under Pennsylvania statutory and common law, an agent under a power of attorney has a fiduciary relationship to his or her principal. See, e.g., 20 Pa.C.S. § 5601(e); Nicely Estate, 18 Fid. Rep. 2d 397, 403 (Phila. O.C. 1998) (Pawelec, J.). In the present case, Mary Green as principal has filed objections to the account filed by her agent Antonio Onorato. In objecting to that account, Ms. Green has the initial burden of showing that Onorato breached his fiduciary duty to her:

There can be no doubt that the person attempting to prove an account inaccurate must sustain the burden of establishing his position. As a logical extension thereof, those who seek to surcharge a fiduciary for breach of trust must bear the burden of proving the particulars of the fiduciary’s wrongful conduct.
Dunn Estate, 54 Pa.D. & D. 2d 760, 761 (Mercer Cty. 1972)

In seeking to recover assets Onorato allegedly misused as her agent, Mary Green is essentially seeking to surcharge him. This is because it “is well settled in this Commonwealth that a fiduciary who has. negligently caused a loss to an estate may properly be surcharged for the amount of such loss.” Estate of Lohm, 440 Pa. 268, 273, 269 A.2d 451, 454 (Pa. 1970). Under Pennsylvania law, a “surcharge is the penalty for failure to exercise common prudence, common skill and common caution in the performance of the fiduciary’s duty and is imposed to compensate beneficiaries for loss caused by the fiduciary’s want of due care.” In re Miller’s Estate, 345 Pa. 91, 26 A.2d 320, 321 (Pa. 1942).

As an agent or fiduciary, Onorato was “required to use such common skill, prudence and caution as a prudent man, under similar circumstances, would exercise in connection with the management of his own estate.” Estate of Lohm, 440 Pa. at 273, 269 A.2d at 454. Once the objector comes forward with evidence of wrongful conduct, the burden shifts to the accountant to prove due care. Estate of Maurice, 433 Pa. 103, 108,249 A.2d 334, 336 (1969). As the Pennsylvania Supreme Court in Strickler Estate explained:

Where a fiduciary claims credit for disbursements made by him, the burden rests upon the fiduciary to justify them. Proper vouchers or equivalent proof must be produced in support of such credits. Accountant’s unsupported testimony is generally insufficient. Strickler Estate, 354 Pa. 276, 277, 47 A.2d 134 (Pa. 1946).

In the present case, the account initially filed by Antonio Onorato on its face revealed patent irregularities. Although initial principal receipts of $551,556.14 were acknowledged, at the conclusion of the account the combined balance on hand was $0. There were checks made out to Antonio Onorato signed by Antonio Onorato in a total amount of $117,050. There were also checks signed by Antonio Onorato to his family members Salvatore and Josephine Onorato. There were utility bills and taxes for properties owned by Antonio Onorato that were paid from checks drawn from Mary Green’s account. There was a charge totaling $1,105.00 for numerous overdrafts and other bank fees. There were unexplained “cash withdrawals” totaling $13,121.00. There were online/electronic banking deductions with “name of issuer unknown” totaling $27,185.64. There were checks issued listed on pages 24-29 where the payees and issuers were “unknown” for a total amount $109,988.91.

In her objections, Mary Green focused on these irregularities. Once Ms. Green came forward to identify these issues and in light of the patent irregularities, the burden fell on Antonio Onorato to explain and support these disbursements with documentation or other evidence. In the Estate of Lohm, 440 Pa. 268, 274, 269 A.2d 451, 454 (Pa. 1970), for instance, the Pennsylvania Supreme Court stated that “where a large overpayment in taxes has been shown, such as in the case at bar, the burden then shifts to the fiduciary to present, if possible, exculpatory evidence and thereby avoid the surcharge.” Accord Estate of Maurice, 433 Pa. 103, 108,249 A.2d 334, 336 (Pa. 1969) (“This glaring error in overpayment of tax having been shown, it is the burden of the executor to come forward with evidence to prove that, in handling the federal estate tax matters, it used common skill, prudence and due care under the circumstances”). With his shocking testimony, Antonio Onorato definitively established his breach of fiduciary duty to his principal Mary Green.

As a threshold issue, the acknowledgement that Onorato signed in April 2006 as part of the power of attorney executed by Mary Green clearly set forth his fiduciary responsibilities to her:

I shall exercise the powers for the benefit of the principal.
I shall keep the assets of the principal separate from my assets.
I shall exercise reasonable caution and prudence.
I shall keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal.
Ex. R-3 at 6.

These basic responsibilities are not merely set forth in the document Onorato signed but they mirror the statutory language applicable to agents under a power of attorney. See 20 Pa.C.S. §5601(d) & (e). In 1999, the Pennsylvania legislature enacted the provisions set forth in 20 Pa.C.S. §5601 (d) & (e) to clarify the fiduciary duties when an agent acts pursuant to a power of attorney. The power of attorney signed by Mary Green in 2006 is clearly subject to these statutory provisions. In a very recent case focusing on whether an agent should be surcharged for breaching his fiduciary duty to keep accurate records prior to 1999, the Pennsylvania Superior Court required a lower court to analyze the agent’s testimony and evidence under the Strickler standard. Estate of Bechtel, _ A.3d_, 2014 WL 2048380 (Pa. Super. 5/19/14) at *4.

In the present case, the agent was specifically asked whether he had adhered to the responsibilities or standard of care outlined in the Acknowledgment he had signed. In response, Onorato bluntly admitted: “Well, to tell you the truth, I don’t read that.” In terms of the specific four requirements of the Acknowledgment, Onorato’s testimony revealed a total disregard for all of them. Instead of exercising his powers to benefit Mary, Onorato agreed that “[bjasically when you became power of attorney, what your testimony is that she basically said, Tony, whatever you want to do, you sign.” After emphasizing the attention he had paid to Mary for the six years prior to his appointment as agent, Onorato characterized the power of attorney as an expression of appreciation rather than a serious fiduciary responsibility:

She says to me she wants to find — she said, Tony, I want to do something for you. I said, what do you want to do? She said, I want you to be power of attorney. I said you don’t have to do that. No, she said, I want to do that.

Mary Green, in contrast, testified that she had appointed Onorato as her agent “to take care of the financial concern about me and general concerns.” This complies with the standard role of an agent but is at odds with Onorato’s behavior in which he used his power of attorney to benefit himself and his family at Ms. Green’s expense as he admits in the following colloquy:

Q: Let me ask you this here. I’m listening to you testify and basically you were paying all the bills?
A: Yes.
Q: Now, when you talk about all the bills, you’re talking about her bills; you’re talking about your bills.
A: Right

In so doing, by using her assets to pay for utilities and taxes on his own properties, Mr. Onorato failed to conform to the obligation to “keep the assets of the principal separate from my assets!” This is demonstrated more specifically when he responded as follows to questions about his payment of real estate taxes reflected in the account:

Q: And real estate taxes of over $3,000 for your benefit.
A: I don’t know if it was mine or hers. I don’t know. I have to see the check. It could be her house.
Q: The ones for $1600, in that area, they were yours; right?
A: $1,600?
Q: That’s the amount of your real estate tax, 16 hundred something?
A: Where? On what house?
Q: Faunce.
A: Probably, yeah.

In his initial account, moreover, Mr. Onorato reveals that he spent $4,706.82 on real estate taxes on the property located in Abington County where he resided. According to the supplemental account, he spent $8,277 for the school taxes on his Abington property.

Another obligation of an agent to “keep a full and accurate record of all actions, receipts and disbursements on behalf of the principal” was also blatantly disregarded by Onorato. He admitted, for instance, that he did not keep a check register or record of the checks he wrote. This is reflected in his initial account with its numerous pages (i.e. 24-29) listing checks that were issued with no identification of the payees or issuers even though the total expended was $109,988.91. In an admission of the inadequacy of such an “account,” Mr. Onorato filed a supplemental account which is no less disturbing in what it revealed. That supplemental account conceded that of these previously unexplained checks, Antonio Onorato had signed checks made out to himself in the amount of $66,850. He wrote out checks totaling $7,000 to his son Marco. Ex. R-l

As an explanation for his expenditures that benefited himself and, in particular the house he constructed on the property at 815 Llanfair Road in Abington, Onorato repeatedly maintained that these had been gifts from Mary. In his brief, Onorato argues broadly that such “gifts” to himself, his wife and his children were supported under the terms of the power of attorney Mary executed which provided for “unlimited gifts.” According to this argument, the general power of attorney “provides for unlimited gifting” and the payments to Onorato and his family “were consistent with Ms. Green’s estate planning that had been in place as well as the continuation of gifts that she made herself to Mr. Onorato and his family.” This argument is belied by the terms of the power of attorney as well as the testimony of Mr. Onorato and Ms. Green.

The gift provisions in the power of attorney Mr. Onorato invokes in his brief provides in relevant part:

23. Gifts. My agent may make gifts in any amount to anyone, including my agent, outright or in trust so long as my agent believes that such gifts are consistent with appropriate lifetime, estate planning or Medicaid planning goals.... I direct my agent to keep in mind my objective of utilizing all public resources that are available for the payment of long-term care expenses, and hereby authorize my agent to do the following in order to accomplish this objective: (i) to divest me of sufficient assets so as to qualify for Medicaid; (ii) to convert non-exempt resources into exempt resources allowable under federal and state Medicaid rules and regulations; or (iii) to change my domicile to another state where Medicaid eligibility rules are more favorable. In the event that my agent shall act upon my objectives, any gifts or transfers from my estate shall not constitute a breach of agent’s fiduciary relationship to me.

Ex. R-3 at ¶23 (emphasis added).

This provision as to gifts is notunlimited or unconditioned. It clearly requires that any gift the agent makes is “consistent with appropriate lifetime, estate planning or Medicaid planning goals.” In other words, the gifts should benefit Ms. Green during her lifetime or as necessary to maneuver the complicated Medicaid rules for “utilizing all public resources that are available for payment of long-term care expenses.” Onorato, however, testified that he was oblivious to the estate planning or Medicaid provision for gifts when he was asked about his wife’s purchase of property with $88,000 from Mary’s funds:

Q: Did your wife purchase property at 79 — I think it’s blocked actually, 7968 Castor Avenue?
A: Yes.
Q: For $80,000?
A: $88,000.
Q: 88
A: Betty told me to buy that property...
A: I told her that I have a property that I think that’s interest. She said buy it. And she give me the check, yes.
Q: Is Betty’s name on that deed anywhere?
A: No, it isn’t.
Q: Whose name is on it?
A: My wife name.
Q: Just your wife?
A: Yes.
Q: Now, so you indicated with this acknowledgment, you know, you’re supposed to act in Betty’s best interest.
A: Yeah, she told me to buy it for myself.
Q: Can you explain to me how that’s in her best interest: Her name is not on it.
A: Well, she live with us. She’s family.
Q: Oh, she’s family. So this was — let me ask you this here, was this estate planning? Because I understand you have the power to do estate planning under the power of attorney.
A: Yeah.
Q: Was it estate planning or was it Medicaid planning? Because I understand you have that power, too.
A: I don’t know what you mean by that.

Not only did Mr. Onorato confess he did not know the meaning of “Medicaid planning,” but he produced no documentation or evidence of how this gifting was part of a general scheme to provide for Mary’s lifetime planning, estate planning or Medicaid planning beyond the bald assertion that she gave $88,000 to Onorato’s wife for the purchase of property never placed in Mary’s name. The gift provision in the power of attorney 'did not provide Onorato with a license to loot Mary’s assets. As her agent, his duty was “to exercise the powers for the benefit of the principal.” Ex. R-3 at 6.

The record therefore establishes that Mr. Onorato breached his fiduciary duty to Mary in manifold ways: by failing to use his powers for her benefit; by failing to keep her assets separate from his assets; by failing to keep full and complete records of all actions, and; by failing to act with caution and prudence. It is still necessary, however, to go through each of the objections to determine their individual merit and the total surcharge properly assessed against Mr. Onorato.

As her first objection, Mary notes that while the account shows receipts of over $500,000, there is no balance remaining. The account, however, indicates that many of the checks were written by Mary herself. Her testimony likewise confirmed that she wrote certain checks, and those cannot serve as a basis for a surcharge against Mr. Onorato. Objections 2-3 complain about reductions in Mary’s social security benefits in 2007 and 2010 but no evidence was presented that would link the agent to those reductions. In fact, he specifically — and convincingly — testified that he had nothing to do with the size of these payments. Likewise, objection 4 that Mary’s Metropolitan Life Annuity abruptly stopped in December 2008 was undeveloped and did not cause the burden of proof to shift to the agent. The fifth, sixth and seventh objections concerning transfers and deposits to a PNC money market account were not developed or explained and are thus deemed abandoned.

With her eighth objection, Mary asserts that the $ 117,050 in checks that Onorato made out to himself were improper. Because the agent was unable to provide documentation or support for these expenditures other than the bald assertion of gifts, he shall be surcharged $117,050.

As her ninth objection, Mary asserts that the accountant signed checks payable to his own family members in the amount of $89,000. The account and supplemental account, however, show the following improper checks to relatives signed by Antonio Onorato: $8,000 to Salvatore Onorato; $900.00 to Josephine Onorato; $11,544.48 to Marco Onorato. These improper payments shall be surcharged against Antonio Onorato.

In objections 10 through 12, Ms. Green objects to payments made to PGW, PECO, the Water Revenue Bureau and taxing authorities on three of four different unidentified accounts. Based on the testimony and records produced at the hearing — especially exhibits R-12 through R-14 which identified the various accounts by property — the following expenditures by checks signed by Mr. Onorato for properties belonging to Onorato or his family were improper and are subject to surcharge:

Initial Account
$337.25: Payable to “PGW” (Gas service account no. 411213571)
$1,360.74: Payable to “PECO Energy” (Electric service account 44340-83006)
$45.40: Payable to Water Revenue Bureau (Account 059-33660-02316-001)
$4,706.82: Payable to “Abington Township Treasurer (Real estate taxes)
Supplemental Account
$2,245.81: Payable to “Peco Energy” (Account 44340-83006)
$ 376.72: Payable to “PGW” (Account 4112135711)
$8,227.00: Payable to “Abington Township Treasurer” (School taxes)

Objection 13 focuses on payments to three different homeowner insurance policies, but this objection was not developed with a specific amount due and is deemed abandoned.

As objection 14, Ms. Green objects to the $1,105 in bank and overdraft charges to her PNC checking account as set forth in pages 17-18 in the initial account, which is surcharged against her agent for his negligent breach of fiduciary duty.

Ms. Green next objects to the $27,185.64 in online/ electronic banking deductions that are set forth on pages 19 through 22 of the account with the notation “name of issuer unknown.” More specifically, Ms. Green notes that she did not know how to make electronic charges, and by implication they should be surcharged against the accountant who failed to provide any explanation for these deductions..

The initial account listed $109,988.91 in checks for which the issuer and payee were unknown, which Ms. Green properly objected to as unacceptable record-keeping. In a tacit concession, Onorato submitted a supplemental account to “explain” these disbursements. See Ex. R-l. This supplemental account unfortunately documents the improper nature of many of these disbursements. According to the supplemental account, Onorato signed checks made out himself in a total amount of $66,850.00. He also made out checks totaling $7,000 to his son Marco Onorato and $200 to his wife Josephine. The supplemental account also states that he signed checks for PECO energy and PGW for his home at 815 Llanfair Road and 2613 Faunce Street in the amounts of $2,245.81 and $376.72 respectively as well as checks totaling $8,277 for Abington Township school taxes. Finally, the supplemental account documents that Onorato made out a check for $3,000 payable to Thomas Citro for a zoning hearing on the Castor Avenue house his wife purchased with $88,000 in funds provided from Mary. While the $88,000 check that Mary signed to provide for this purchase is not subject to surcharge since she herself signed that check, the $3,000 that Onorato spent on zoning expenses by a check he signed is subject to surcharge.

Objection 17 focuses on a $15,000 check that Onorato signed payable to Carmine Morelli, builder that is listed on page 22 of the account. Although Onorato claimed that Mary gifted this property to her as evidenced by a deed she signed (N.T. at 19 and ex. R-7), he was unable to explain how Mary benefited from the house that he built on that property. In fact, he conceded that she did not want to live there. N.T. at 45; 67. In light of this failure to demonstrate how the building expenses benefited the principal, this $15,000 expenditure is surcharged against the agent.

Mary also objects to the unexplained cash withdrawals in the total amount of$13,121asset forth on page 19 of the account. No explanation was made for these expenditures. Hence, this $13,121 is surcharged against the agent.

Mary’s objection 19 as to $5000 used to cover Citicard credit card payments is denied because the account at page 17 indicates that two checks totaling $3,517.64 to cover citicard charges were signed by Mary.

In her final objections, Mary requests a surcharge in excess of $500,000 to recoup the improper payments or expenditures by her agent. The record, however, does not support this total claim since the account indicates that Mary herself signed numerous checks that fall within the total expenditures of $551,556.14. Her final objection 22 that the principal transferred her real estate at 815 Llanfair Road, Rydal, to her agent is undeveloped. Although this objection states that the principal’s name does not appear of the deed for this property, it also concedes that “the principal transferred her real estate at 815 Llanfair road, Rydal, PA to her Agent who demolished it.” This is an admission of voluntary transfer rather than a claim. Based on the record, the agent shall be surcharged for the following improper expenditures:

$ 117,050.00 checks made out to and signed by Antonio Onorato
$ 8,000.00 check payable to Salvatore Onorato signed by Antonio Onorato
$ 2,000.00 checks payable to “cash” signed by Antonio Onorato
$ 700.00 checks made out to Josephine Onorato signed by Antonio Onorato v
$ 337.25 PGW check for 2613 Faunce Street singed by Antonio Onorato
$ 1,360.74 PECO checks for 815 Llanfair Road signed by Antonio Onorato
$ 45.40 water revenue expenditure for 815 Llanfair Road signed by Antonio Onorato
$ 4,706.82 taxes payable to “Abington Township Treasurer signed by Antonio Onorato
$ 1,105.00 bank overdrafts and fees
$ 13,121.00 unexplained cash withdrawals
$ 27,185.64 unexplained online/electronic banking deductions
$ 4,544.48 check to Marco Onorato signed by Antonio Onorato
$ 15,000.00 check signed by Antonio Onorato to Carmine Morelli, Builder

Supplemental Account

$ 66,850.00 checks made out to and signed by Antonio Onorato
$ 7,000.00 check for Marco Onorato signed by Antonio
Onorato
$ 200.00 check to Josephine Onorato signed by Antonio Onorato
$ 2,245.81 PECO payments for 815 Llanfair Road signed by Antonio Onorato
$ 376.72 PGW payments for 2613 Faunce Street signed by Antonio Onorato
$ 8,227.00 school taxes paid to Abington Township Treasurer signed by Antonio Onorato
$ 3,000.00 check signed by Antonio Onorato to Thomas Citro for zoning at Castor Avenue residence of Josephine Onorato

TOTAL: $ 283,055.86

Conclusion

Because of the improper expenditures documented throughout the account and supplemental account, neither can be confirmed but shall be returned unaudited. The accountant, Antonio Onorato, is surcharged in the amount of $283,055.00 which he shall'return to his principal, Mary Green as set forth in a contemporaneously issued decree.

Mr. Onorato mistakenly believed that Ms. Green had appointed him as her agent as an act of gratitude for past kindnesses and with permission to use her assets as he wished, In fact, a person appoints a power of attorney to protect his or her interests. This certainly was Mary Green’s intent as set forth in the power of attorney and her testimony.

      .Ex.R-3.

      . 5/28/13 Account at 24.

      . Ex. R-l.

      . 79/17/13 N.T. at 11-13 & 60 (Onorato).

      . 9/17/13 N.T. at 14 (Onorato).

      . 9/17/13 N.T. at 14-15 (Onorato). See also Ex. R-15 (9/12/13 Deposition of Craig Falcone, Esquire).

      . 79/17/13 N.T. at 18-19 (Onorato); Ex. R-7

      . 9/7/13 N.T. at 19-21 (Onorato).

      . 9/7/13 N.T. at 20-21 (Onorato).

      . 9/7/13 N.T. at 21 (Onorato).

      . 9/7/13 N.T at 30-32 (Onorato); Ex. R-13 at 0116; Ex. R-14 at 0139.

      . 9/7/13 N.T. at 33 (Onorato).

      . 9/7/13 N.T. at 38-39 (Onorato).

      . 9/7/13 at 42 (Onorato).

      . Ex. R-3 at 6.

      . 79/17/13 at 43.

      . 9/17/13 N.T. at 46-50 (Onorato).

      . 9/17/13 N.T. at 50-51 (Onorato)

      . 9/17/13 N.T. at 53-55, 57 (Onorato); Ex. R-l at 11.

      . 9/17/13 N.T. at 55 (Onorato). See also 9/17/13 N.T. at 53-54.

      . 9/17/13 N.T. at 67 (Onorato).

      .79/17/14 N.T. at 56,

      . 9/17/13 N.T. at 78, 79 (Green)

      . 9/17/13 N.T. at 80 (Green)

      . 9/17/13 N.T. at 81 (Green).

      . 9/17/13 N.T at 83.

      . 79/17/13 N.T. at 42 (Onorato).

      . 9/17/13 at 44.

      . 9/17/13 N.T. at 14-15 (Onorato).

      . 9/17/13 N.T. at 78 (Green).

      . 9/17/13 N.T. at 43 (Onorato).

      . 9/17/13 N.T. at 63 (Onorato).

      . See 5/28/13 Account at 17; 9/17/13 N.T. at 18 (Onorato confirming that he resides in Abington).

      . Ex. R-l at 7.

      . 9/17/13 N.T. at 43 (Onorato).
      Q: A record of your checks. A record of the checks you drew for Miss Green. You didn’t have one, did you?
      A: No, I don’t.
      Q: No. I know you didn’t.
      A: I don’t.

      . 11/14/13 Onorato Brief at unnumbered (at 4-7).

      . 11/14/13 Onorato Brief at unnumbered (7).

      . 9/17/13 N.T. at 54-56 (Onorato)(emphasis added).

      . 79/17/13 N.T. at 29 (Onorato).

      . See 5/28/13 account at 8,9 & 23; Supplemental Account (Ex. R-l) at 3.

      . 6/25/13 Green Objections at ¶15 & 21; 5/28/13 Account at 19-20.

      . 6/25/13 Green Objections at ¶16 & 20-21; 5/2813 Account at 24-29.

      CEx. R-l at 2-3.

      . Ex. R-l at 3.

      . Ex. R-l at 4 & 7.

      . Ex. R-l at 11; 9/17/13 N.T. at 57 (this charge was for zoning of the Castor Avenue property that is in Josephine Onorato’s name).

      . 6/25/13 Green Objections ¶¶18 & 21.


source: Caselaw Access Project

author: BOCCABELLA, J,

license: Public Domain

text:
    Commonwealth v. Brodhead

      C.P. of Berks County,
    No. 0636-2014

      Justin Bodor, for Commonwealth.

      Jay M. Nigrini, for defendant.
    July 11, 2014
   BOCCABELLA, J,

FINDINGS OF FACT

1. On November 10th, 2013, at approximately 2:46 a.m., Officer Kevin Dale Mickle of the Hamburg Borough Police Department in Berks County, was on patrol traveling south bound on Route 61.

2. In Officer Mickle’s report, he said he observed a black SUV cross over the center dotted yellow lines twice (there was no opposing traffic), and crossed over the white berm line once. Officer Mickle initiated a traffic stop.

CONCLUSIONS OF LAW

1. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

2. Section 6308(b) of the Motor Vehicle Code provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa. C.S.A. § 6308(b).

3. “Thus, when an officer has reasonable suspicion a violation of the Vehicle Code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008) citing 75 Pa. C.S.A. § 6308(b).

4. “To establish grounds for ‘reasonable suspicion’ ... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999)).

5. “In order to determine whether the police had a reasonable suspicion, the totality of the circumstances-the whole picture-must be considered.” In the Interest of D.M., 781 A.2d 1161, 1163 (Pa. 2001) citing United States v. Cortez, 449 U.S. 411, 417 (1981).

6. In making this determination, we must give “due weight... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).

7. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[ejven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 22 (1968).

8. “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Ornelas v. United States, 517 U.S. 690, 696 (1996).

9. “While it is argued the lesser standard [reasonable suspicion] will allow a vehicle stop to be made based on pretextual motives, the United States Supreme Court made clear that case law ‘foreclose^] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.’” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Whren v. United States, 517 U.S. 806, 813 (1996); see also Commonwealth v. Foglia, 979 A.2d 357, 361-62 (Pa. Super. 2009) (stating that observations made after the officer intends to stop the defendant can be used to support their actions).

10. “In other words, if police can articulate a reasonable suspicion of a Vehicle Code violation, a constitutional inquiry into the officer’s motive for stopping the vehicle is unnecessary.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008).

11. “Probable cause to arrest exists when the facts and circumstances within the police officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) quoting Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007) (quoting In re C.C.J., 799 A.2d 116, 121 (Pa. Super. 2002))

12. “Probable cause exists if there are facts available at the time of apprehension which would justify a reasonable man in the belief that a crime has been or is about to be committed and the person arrested probably is the perpetrator.” Commonwealth v. Gambit, 418 A.2d 554, 557 (Pa. Super. 1980).

13. “[Pjrobable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Commonwealth v. Cook, 865 A.2d 869, 875 (Pa. Super. 2004) quoting Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004).

14. “We evaluate probable cause by considering all relevant facts under a totality of circumstances analysis.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007) citing Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (citing Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985)).

15. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

75 Pa.C.S.A. § 3309(1). Driving on roadways laned for traffic.

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply:

(1) Driving within single lane. — A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.
(2) Three lane roadways. — Upon a roadway which is divided into three lanes and'provides for two-way movement of traffic, a vehicle shall not be driven in the center lane except when overtaking and passing another vehicle traveling in the same direction when the center lane is clear of traffic within a safe distance, or in preparation for making a left turn, or where the center lane is allocated exclusively to traffic moving in the same direction that the vehicle is proceeding and the allocation is designated by official traffic-control devices.
(3) Lanes limited to specific use. — Official traffic-control devices may be erected to restrict the use of specified lanes to specified classes or types of traffic or vehicles, including multioccupant vehicles or car pools, and drivers of vehicles shall obey the directions of every such device.
(4) Prohibitions against changing lanes. — Official traffic-control devices may be installed prohibiting the changing of lanes on a section of roadway and drivers of vehicles shall obey the directions of every such device.

75 Pa.C.S.A. § 3301(a). Driving on right side of roadway.

(a) General rule. — Upon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway except as follows:

(1) When overtaking and passing another vehicle proceeding in the same direction where permitted by the rules governing such movement.
(2) When an obstruction exists making it necessary to drive to the left of the center of the roadway, provided the driver yields the right-of-way to all vehicles traveling in the proper direction upon the unobstructed portion of the roadway within such distance as to constitute a hazard.
(3) When and where official traffic-control devices are in place designating a lane or lanes to the left side of the center of the roadway for the movement indicated by the devices.
(4) Upon a roadway restricted to one-way traffic.
(5) When making a left turn as provided in sections 3322 (relating to vehicle turning left) and 3331 (relating to required position and method of turning).
(6) In accordance with section 3303(a)(3) (relating to overtaking vehicle on the left).

21. In this case, Officer Mickle was on patrol traveling south bound on Route 61. While on duty, his attention was captured by a vehicle in front of him. Officer Mickle reported that the vehicle crossed the yellow dotted line in the roadway two (2) times and the berm line once within a one (1) mile distance. Officer Mickle conducted a traffic stop. When Officer Mickle initiated contact with the defendant, he smelled a strong odor of an alcoholic beverage emanating from his breath. He asked the defendant how much he had to drink. The defendant responded and said “one and a half beers (1%).”

After the conversation, Officer Mickle asked the defendant to step out of the vehicle to perform the Field Sobriety Tests. The defendant failed all tests that were given to him. The defendant was arrested for the suspicion of DUI. He was transported to a DUI center and the defendants legal blood alcohol content at the time of the incident was .16%

Officer Mickle did not have reasonable suspicion/ probable cause to stop the vehicle based on his own observation of the vehicle crossing the “yellow” line two (2) times. It should be noted that the center dotted lines are in fact white and not yellow. In addition Route 61 is a four (4) lane highway. Two (2) lanes going south and two (2) lanes going north. The defendant was on the far right (slow) lane traveling south. During his testimony, Officer Mickle did not say the vehicle did anything erratic while crossing the center dotted “white” line (no jerking motion). In Gleason, supra, the Supreme Court addressed the issue of assessing when an officer has sufficient indicia of erratic driving to give the officer probable cause to stop a vehicle. Specifically, the defendant in Gleason was followed by a police officer for one quarter of a mile and, over that distance, the officer observed the defendant’s vehicle cross the solid fog line two or three times. The Supreme Court concluded that “given the early morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of the defendant’s vehicle crossing the fog line..., the officer erred in believing he had justification to stop the defendant’s vehicle.” Gleason, 785 A.2d at 985-986. Just like in this situation, the defendant was traveling in the early morning hours and there was no testimony of any other traffic on the roadway. In addition, Officer Mickle cannot recall the timing or how much of a distance the tires crossed the white line. This would support that the crossing was rather “momentary and minor in nature.” Therefore the defendant did not violate 75 Pa.C.S.A. § 3309(1) “Driving on roadways laned for traffic.”

Moreover, in Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002), a panel of the court concluded that an officer’s perception that a defendant was driving erratically because he weaved within his lane, drove five to ten miles per hour under the speed limit, and crossed over the white fog line was not sufficient probable cause to stop the defendant’s vehicle. Furthermore, if the Commonwealth of Pennsylvania argues thatthe defendant’s crossing ofthe white line constitutes erratic driving, it is not per se violation of the Vehicle Code so as to justify a traffic stop, and defendant’s driving did not pose a hazard to other motorists, Commonwealth. v. Klopp 863 A.2d 1211 (Pa. Super. 2004).

This court notes that 75 Pa.C.S.A. § 3309(1) of the Vehicle Code requires motorists to maintain a single lane “as nearly as practicable.” Thus, the statutory language does not foreclose minor deviations from the traveling lane. In comparison, 75 Pa.C.S.A § 3301 provides that “a vehicle shall be driven on the right half of the roadway” subject to exceptions. The language of §3301 does not allow for unspecified deviations from the rule, and we need not analyze whether the defendant complied with this section.

In this case, the defendant was not speeding, weaving, or braking erratically. The defendant posed no safety hazard when his vehicle simply touched or crossed the white center line. The defendant did not even violate 75 Pa.C.S.A. § 3301(a). “Driving on right side of roadway.” There is no evidence that he left his traveling lane into the opposing lane of travel. The defendant traveled southbound on the “right half of the roadway” and never crossed over to the northbound travel lane (opposing traffic). Therefore, at the time of the stop, Officer Mickle lacked specific facts, which would have provided reasonable suspicion to believe that the defendant was in violation of §3309(1) and §3301(a). Based on the totality of the circumstances, the court finds that the Commonwealth has not met its burden in establishing sufficient probable cause for the vehicle stop. Accordingly, the defendant’s statements are inadmissible as evidence and the seizure did occur in violation of the defendant’s constitutional rights (Article I, Section 8 of the Pennsylvania Constitution.)

22. The defendant’s motion for suppression of the evidence is granted.

ORDER

And now, this 11th day of July, 2014, it is hereby ordered that the defendant’s motion for suppression of the evidence and statements is granted.


author: SPRECHER, J.,

text:
    Saul v. Spring Valley Fitness, Inc.

      C.P. of Berks County,
    No. 11-4762

      Alan B. Zeiger, for plaintiffs.

      Barrie B. Gehrlein, for defendant.
    July 21, 2014
   SPRECHER, J.,

This is an interlocutory appeal. Plaintiffs appeal the order dated May 6, 2014, which denied their motion to file fourth amended complaint in order to include a request for punitive damages. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

Plaintiffs, Melanie Beth Saul (hereinafter, Mother) and Peter Allyn Weachter, are the parents of Madison Jade Weachter (hereinafter, Child) who was bom on February 9, 2003. Mother was a member of defendant’s gym and work-out center. Defendant has a 7,200 square foot child’s play area entitled “Kidsmazium” which contains a “Kids Court” for the children to utilize while their parents are enjoying the use of the facilities. Defendant advertises that the Kidsmazium is safe and supervised by personnel.

On June 14, 2010, Mother placed Child in the Kidsmazium while she was working out. While Child was playing there, Child fell from the red roller and trapped her left fingers between the yellow bar and blue pad which resulted in a fracture to her left arm. Mother contends that defendant did not give any written or verbal warnings or guidance to either Mother or Child regarding any dangerous conditions or avoidance of accidents.

Plaintiffs seek damages for defendant’s negligence and carelessness. Approximately one week before this incident, another child fell from the climbing wall and broke a wrist. That child was a daughter of defendant’s employee who was present at the time of the accident. There was a staff meeting following the first child’s injury. There is contradictory testimony in the depositions concerning the training and supervision of the staff by Christopher Emkey, the owner and operator of defendant.

Plaintiffs’ expert, Leonard K. Lucenko, B.A., M.A., Ph.D, BCFE, ASSE, LCC, who is a certified playground safety inspector, presented a report in which he opined that there was a gross deviation from the reasonable and prudent standards of care and practice by the operator, management, and staff of defendant in the operation, management, and supervision of the Kids Court and Kidsmazium on the date of this incident. It was his professional opinion as a certified playground safety inspector and a recreation and fitness safety and risk management expert that Child’s injuries were the direct result of the reckless indifference and negligent omissions and commissions of defendant’s operator, management, and staff.

Based on the expert’s report and the prior injury of another child one week before the instant accident, plaintiffs contend that punitive damages are warranted in the case sub judice. By order dated May 6, 2014, this court denied plaintiffs’ request for punitive damages at this time. If more evidence was produced during the trial of the case, this court would then have addressed the issue again. Plaintiffs filed a timely appeal.

ISSUES

Plaintiffs raise the following issues in their concise statement of errors complained of on appeal.

1. Is this court’s order of May 6, 2014 on its face inconsistent, contradictory, unclear, and subject to numerous interpretations so that it is contrary to law and violates due process under the United States and Pennsylvania Constitutions?

2. Have plaintiffs pled and established facts of reckless indifference by defendant which would permit a fact-finder to return an award of punitive and/or exemplary damages in this case?

3. Would the inclusion of plaintiffs’ requested amendment in this case to include a claim for exemplary and/or punitive damages avoid the necessity of two trials in this case?

4. Plaintiffs reserve the right to add additional issues on appeal should that be deemed necessary.

DISCUSSION

This court submits that plaintiffs’ appeal is interlocutory and should be quashed. Assuming arguendo that it is not quashed, it shall address the issues seriatim. Plaintiffs first contend that the order dated May 6, 2014 is inconsistent, contradictory, unclear, and subject to numerous interpretations so that it is contrary to law and violates due process under the United States and Pennsylvania Constitutions. This contention is without merit.

This court granted plaintiffs the right to file a fourth amended complaint; however, it denied the claim for damages “at this time.” Throughout plaintiffs’ filing of the original complaint and the three amended complaints, this court informed plaintiffs that it did not believe that the evidence supported a claim for punitive damages. It also notified plaintiffs that after all of the evidence was produced at trial, this court would then re-evaluate a request for punitive damages at that time. Thus, the order is not subject to numerous interpretations to the extent that it is contrary to law and violates due process; moreover, the plaintiffs understood the order as is evidenced by their interlocutory appeal.

Plaintiffs next submit that they have pled and established facts of reckless indifference which would permit a fact-finder to return an award of punitive and/or exemplary damages in this case. This assertion is meritless.

Punitive damages may be appropriately awarded only when the plaintiff has established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or his reckless indifference to the rights of others. A defendant acts “recklessly” and may be held liable for punitive damages when his conduct creates an unreasonable risk of physical harm to another and such risk, is substantially greater than that which is necessary to make his conduct negligent. A showing of mere negligence or even gross negligence will not suffice to establish that punitive damages should be imposed. Rather, the plaintiff must adduce evidence which goes beyond a showing of negligence, evidence sufficient to establish that the defendant’s acts amounted to intentional, willful, wanton, or reckless conduct. Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439 (2005).

In the case sub judice, plaintiffs’ claim for punitive damages is based on defendant’s failure to supervise as shown by one prior incident approximately one week before Child’s accident. There is insufficient evidence to show defendant’s conduct was wanton, malicious, or based on an evil motive. At best at this time, plaintiffs have presented evidence that defendant’s owner and staff have been inept and committed gross negligence in the supervision of Child. A punitive damages claim must be supported by evidence sufficient to establish that (1) defendant had a subjective appreciation of the risk of harm to which plaintiff was exposed, and that (2) he accepted, or failed to act, as the case may be, in conscious disregard of that risk. Hutchinson v. Luddy, 582 Pa. 114, 870 A.2d 766 (2005).

Plaintiffs’ third issue is that the inclusion of a claim for exemplary and/or punitive damages would avoid the necessity of two trials. This complaint is a frippery.

There will be just one trial, whether or not the punitive damages claim is later granted. Plaintiffs need to present all their evidence, including expert reports, in order to establish ordinary or common negligence. Based on a complete record, this court would then determine if the issue of punitive damages would be allowed to go to the jury. There is no need for a second trial, and this court did not anticipate the need for a second trial.

Plaintiffs’ fourth statement is that they reserve the right to address additional issues on appeal should that be deemed necessary. Pursuant to Pa. R.A.P. 1925(b)(4), all issues not raised in the statement are deemed waived. Plaintiffs cannot reserve potential issues to a later date.

In accordance with the foregoing opinion, this court submits that plaintiffs’ appeal should be quashed or denied and its order affirmed.


text:
    Recovery Coaching Services, Inc. v. Board of Commissioners of Township of Muhlenberg

      C.P. of Berks County,
    No. 13-17580

      Allen R. Shollenberger, for appellant.

      Michael A. Setley, for appellee.
    April 1, 2014
   SPRECHER, J.,

Appellee appeals the order dated January 26, 2014, which granted appellant’s appeal and reversed the decision of appellee. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

Samuel A. Albert, Jr. (hereinafter, applicant) is the applicant and partial owner of appellant, Recovery Coaching Services, Inc., a privately funded corporation. Applicant is a certified recovery specialist who has taken over thirty independent courses for addiction through the Council on Chemical Abuse. To maintain his certification, he must take thirty hours of courses within a period of two years. Appellant owns the property located at 2126 N. 18th Street, Township of Muhlenberg, Berks County, Pennsylvania (hereinafter, property). Property was a single family dwelling which appellant acquired by deed dated March 8, 2013. Applicant wants to convert property into a group home to provide a transitional housing facility for people recovering from the disease of addiction. Although people with any type of addition will be admitted to the facility, it will house people primarily in early and middle stages of drug or alcohol addictions. The purpose of the home is to provide a safe and structured environment for people who have been in treatment or aftercare and are preparing to return to their families. Group homes are a permitted conditional use under the zoning ordinance.

Applicant testified that there are ' no licensing requirements under state or local regulations for the operation of this type of a group home. Applicant lives across the street from property and will continue to live there during the operation of the home, so that he will be able to monitor it. There will also be a live-in house manager with an upstairs apartment. The home will be limited to five male residents who will be referred to appellant after their completion of treatment.

All potential residents will be subject to a criminal background check, and no one who has been convicted of violent or sexual crimes will be allowed in the home. People who have been convicted of the crime of driving under the influence will be permitted to participate, but not those needing detoxification. The residents will be people who have enjoyed months of continued, sustained sobriety. The residents must sign a residential handbook which operates as a behavioral agreement.

All residents will be subject to breathalyzers and random urine screens. Residents will be tested at least weekly, probably twice per week. They will be discharged if any tests are positive. Applicant testified that there is a recovery rate of eighty percent for the addictions.

The average stay will be for ninety days, and if more time is needed, then the stay will be extended on a monthly basis. Residents must pay their fees in full before their admissions; the full payment of $7,500.00 for ninety days provides an incentive to perform well because there are no refunds.

All visitors must be family members and approved by the house manager, the case manager, and applicant. No overnight visits will be allowed on property.

The nearest school lies in the Reading School District and was closed by that district. There are five to six off-street parking spaces which is compliant with the zoning ordinance. Applicant is not making any exterior or interior physical changes or alterations to property. There will also be no change to the lighting and no increase in noise levels on property. If appellant would abandon the property, it would be restored to single-family dwelling unit status.

Applicant testified that there would not be any increased traffic that would result from the establishment of a group home. Appellant will provide transportation for the residents, and the residents will have to earn the right to have a car at the property.

Property would continue to use the existing municipal water and sewer connections. There will notbe any increase for a fire or other catastrophe on property. Applicant would agree to any conditions, including additional supervision, which the board would order as necessary or appropriate for the grant of the conditional use.

The township’s engineer, Jamal Abodalo, testified that the spacing requirement for group homes in the ordinance may be unenforceable. It violates both the Fair Housing Amendments Act of 1988 and' the Equal Protection Clause of the United States Constitution because it discriminates against people with disabilities (Transcript 110). Moreover, he testified that “a group home is a way society can actually recover some people and bring them back into the society itself’ (Transcript 109).

The president of the board of commissioners, Michael S. Malinowski, noted at the beginning of the hearing that “a lot of passion” was present in the audience (Transcript 4). Approximately twenty people spoke' against the establishment of the group home. They raised concerns about the location of a bar and a bus stop for elementary schoolchildren which were located within 1,000 feet of property. They expressed concerns about property values declining due to the establishment of a group home in the neighborhood. Some complained that there is no incentive to the township and community to allow a group home.

Many complained about the potential for an increase in crime. One resident worried that appellant may house thieves who would break into her home and rob her. She was also worried that the addicts would attack older and feeble persons. A retired reading police officer testified that addicts who are high are very strong and that as a police officer he had to “beat them so hard my arm hurt” (Transcript 87). There was also uncontroverted testimony that the neighborhood already had drug users who were not receiving any treatment.

One citizen worried about accountability and that the group home would become a warehouse for addicts. Another resident was opposed to the group home due to her “young impressionable son” (Transcript 101). Another person did not want to see Muhlenberg Township become the bunt of joke as Wemersville did when a resident walked away from a treatment facility.

Following the hearing, appellee denied the application for a conditional use due to violations of the zoning ordinance and a finding that the party protestors presented credible evidence that if an addict relapsed, his behavior could endanger the public. After argument and a review of the record, this court entered the order which is the subject of the instant appeal.

ISSUES

Appellee’s concise statement of errors complained of on appeal raises the following issues.

1. Whether this court erred in entering judgment in favor of appellant and against appellee.

2. Whether this court erred in determining that appellant met its burden of proving to appellee that it had satisfied the specific requirements of Muhlenberg Township Zoning Ordinance § 154-57(D)(2).

3. Whether this court erred in determining that appellant met its burden of proving that it had satisfied the specific requirements of Muhlenberg Township Zoning Ordinance § 154-57(D)(8).

4. Whether this court erred in determining that appellee abused its discretion or made a clear error of law in finding that appellant did not produce sufficient evidence to meet its burden of establishing that it had complied with the specific zoning standards listed in Muhlenberg Township Zoning Ordinances §§ 154(D)(2) and (D)(8).

5. Whether this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of Muhlenberg Township Zoning Ordinance § 154-167(E)(9).

6. Whether this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of Muhlenberg Township Zoning Ordinance § 154-167(E)(10).

7. Whether this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of Muhlenberg Township Zoning Ordinance § 154-167(E)(12).

8. Whether this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of Muhlenberg Township Zoning Ordinance § 154-167(E)(14).

9. Whether this court erred in determining that appellee abused its discretion or made a clear error of law in deciding that appellant did not produce sufficient evidence to meet its burden of establishing that it had complied with the zoning standards listed in Muhlenberg Township Zoning Ordinances §§ 154-167 (E)(4), (E)(9), (E)(10), (E)(12), and (E)(14).

10. Whether this court erred in determining that appellant met its burden of establishing that its proposed use for the proposed location would not be contrary to public health, safety, morals and/or public welfare.

11. Whether this court erred in determining that the appellee abused its discretion or made a clear error of law in finding that appellant’s proposed use for the proposed location would be adverse to public health, safety, morals and/or public welfare.

DISCUSSION

The existence of a conditional use provision in a zoning ordinance indicates the legislative acceptance that the use is consistent with the zoning plan, and a use application should only be denied where the adverse impact on the public interest exceeds that which might be expected in normal circumstances. Marquise Investment, Inc. v. City of Pittsburgh, 11 A.3d 607 (Pa. Cmwlth. 2010). In the case subjudice, appellant met its burden that its purposed use of a group home satisfied the objective requirements of the zoning ordinance for the grant of a conditional use and that the adverse impact on the public interest did not exceed what is expected in normal circumstances.

Appellee first complains that this court erred in determining that appellant met its burden of proving that it had satisfied the specific requirements of § 154-57(D) (2) which requires a submission of architectural plans. This contention is without merit. Applicant testified that he was not making any exterior or interior construction or alteration to property; however, he would be amenable to preparing such plans, if requested by appellee. A conditional use proceeding concerns only a proposed use of land, not the particular design details of the proposed development. Joseph v. Whitehall Township Board of Supervisors, 16 A.3d 1209 (Pa. Cmwlth. 2011). Thus, the lack of architectural plans is not a valid reason for the denial of the application and was irrelevant to the issue of a conditional use.

Appellee next complains that this court erred in determining that appellant met its burden of proving that it had satisfied the specific requirements of § 154-57(D) (8) of providing documentation that it had met all the building, fire, plumbing, heating, and electrical standards established by the Township Code and the Commonwealth of Pennsylvania. This complaint is without merit.

The township conducted its own inspection of property prior to applicant’s purchase in March 2013, less than four months before the hearing. Applicant also presented the insurance inspector’s report and the recommendations which were met. The Commonwealth has no standards for a group home. Property was able to accommodate six family members, for example, two adults and four children, and satisfy all the specific requirements of the ordinance prior to applicant’s purchase; therefore, there are no reasons that it cannot satisfy all the requirements when there are six male residents living there.

Appellee complains that this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of § 154-167(E)(9) which states that the applicant must provide supporting documentation that the local fire departments have the abilities to provide adequate fire protection and emergency management services for the use. This complaint is a frippery and should be dismissed. The same fire companies that serviced property before applicant purchased it will continue to service it. Applicant is not converting property into a chemical factory. Property is remaining a residence. The fire companies have met the needs of the prior owners of property and the other community residents, so there are no reasons that they cannot continue to meet the present needs of the property.

Appellee asserts that this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of § 154-167(E)(10) of having adequate water storage available for fire-fighting purposes. For the same reasons as stated in the preceding paragraph, this argument fails and must be dismissed.

Appellee contends that this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of § 154-167(E)(12) that the existing sewage disposal facilities have sufficient capacity for the property use. This contention is frivolous and should be dismissed. The existing sewage disposal facilities had sufficient capacity before property was sold; hence, they must have sufficient capacity now because property is remaining a residence.

Appellee asserts that this court erred in determining that appellant met its burden of proving that it had satisfied the requirements of § 143-167(E)(14) by providing documentation that there will be no increase in surface water runoff and erosion within property or at the boundaries as a result of site improvements. This complaint is ridiculous. Applicant testified that it is not making any alterations to property, so there are no improvements. Appellant cannot be forced to prove a nonexistent fact.

Appellee’s final complaint is that this court erred in determining that appellee abused its discretion or made a clear error of law in deciding that appellant did not produce sufficient evidence that its proposed use would not be adverse to the public health, safety, morals, and/or public welfare. This contention is without merit.

In the case sub judice, the proposed use of a group home is a type permitted by conditional use. A presumption therefore arises that the proposed use is consistent with the general welfare. The burden of proof shifts to the objectors to rebut the presumption by proving to a high degree of probability that the proposed use will adversely affect the public welfare in a way not normally expected from the type of use.

Appellee in the case at bar was presented with the task of granting a conditional use application for an unpopular subject — addiction. A member of appellee even noted on the record that passions were high. Appellee failed its duty to be unbiased and grant the conditional use application due to the negativity surrounding the use. Appellee was swayed by the objectors’ vehemence against the conditional use; however, the objectors presented no evidence or facts, just speculation which in no way proved to a high degree of probability that the proposed use will adversely affect the public welfare.

What is uncontroverted is that the group home will have a maximum number of five residents with a live-in manager and oversight by applicant. The residents will pay well for the privilege of renting a room for $2,500.00 per month. The residents will lose all their money for that privilege if they violate the conditions of the group home. No person will be admitted with a criminal background of violent or sexual crimes.

The objectors are also aware of drug use in their neighborhood by persons who are not seeking any treatment. It is more likely that those users, rather than group home residents, will rob them. The group home residents will have completed their programs and are transitioning back into being productive citizens. The users out on the streets have not treated for their addictions. Assuming arguendo that a resident does relapse, it does not mean that he will become violent.

The objectors’ anecdotes • about addicts whom they knew or encountered are not evidence. They are simply reflections of fear and a dislike for the proposed group home. It is irrelevant that a former policeman used to beat up subjects who were high; there is no indication that those people had even received any treatment. Too, relatives who are addicts and have not received any treatment are also irrelevant to the issue. If the residents are willing to walk around the neighborhood with the current drug users residing there, then they should be able to take walks with people residing in the neighborhood who have received treatment and are currently sober. No professional or expert testimony was presented besides that of applicant.

The concerns about the loss of value of the real estate were not supported by evidence. Speculation is not proof.

In accordance with the foregoing opinion, this court submits that its order should be affirmed and the appeal denied.


author: REICHLEY, J.,

text:
    Pietrulewicz v. Gil

      C.P. of Lehigh County,
    No. 2014-C-0826

      Richard L. Orloski, for plaintiffs.

      Charles Fonzone, for defendant.
    June 6, 2014
   REICHLEY, J.,

MEMORANDUM OPINION

This case stems from a motor vehicle accident that occurred on August 7, 2012. Leslie Gil, defendant, was involved in an accident with Richard Pietralewicz, plaintiff. Defendant was speaking on a cell phone. In plaintiffs’ complaint, they are seeking punitive damages and allege recklessness as a result of defendant’s use of a cell phone. For the reasons set forth herein, the facts as pled in the complaint fail to amount to recklessness and the claim for punitive damages is hereby stricken without prejudice.

Findings of Fact

1. On August 7, 2010, plaintiff was operating a three-wheeled motorcycle in the northbound lane of South Cedar Crest Boulevard in Salisbury Township, Lehigh County.

2. As Plaintiff approached the intersection of South Cedar Crest Blvd. and the 1-78 East on-ramp, a vehicle driven by defendant turned left in front of him and collided with plaintiff’s motorcycle, causing damage to both vehicles and injuring plaintiff.

3. Defendant failed to yield to oncoming traffic and plaintiff had the right of way at the time of the accident.

4. Defendant was traveling at slow rate of speed, but nonetheless caused the collision.

5. Plaintiffs aver, and defendant concedes for purposes of the instant preliminary objection, that defendant was on her cell phone at the time of the accident.

Procedural History

Plaintiffs initiated this litigation by filing a complaint on March 17, 2014. On April 21,. 2014, defendant filed preliminary objections to plaintiffs’ complaint. Plaintiffs have filed a response to defendant’s preliminary objections. The court heard an oral argument on this matter on June 3, 2014.

This opinion follows.

Discussion and Conclusions of Law

The standard of review for this case is as follows:

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Schemberg v. Smicherko, 85 A.3d 1071, 1073 (Pa. Super. 2014) (quoting Joyce v. Erie Ins. Exchange, 74 A.3d 157, 162 (Pa. Super. 2013)).

The sole issue before the court is whether plaintiffs’ allegations of recklessness and the demand for punitive damages stemming therefrom are supported by the facts as pled. All well-pled facts are taken as true, and in this case, the facts are not in dispute.

Punitive damages require an actor’s conduct to be “malicious, wanton, reckless, willful or oppressive.” Jahanshahi v. Centura Development Co., 816 A.2d 1179, 1188 (Pa. Super. 2003). They are an extreme remedy available only in the most exceptional cases. Scampone v. Grane Healthcare Co., 11 A.3d 967, 991 (Pa. Super. 2010) (citations omitted). Punitive damages are appropriate where the defendant acted in an outrageous fashion as a result of either an evil motive or reckless indifference to the rights of others. Id.

To state a claim for punitive damages, the plaintiff must plead specific facts demonstrating outrageous and/or willful conduct. Smith v. Brown, 423 A.2d 743 (Pa. Super. Ct. 1980). Reckless indifference means that “an actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probably that harm will follow.” Evans v. Philadelphia Transportation Company, 212 A.2d 440 (Pa. 1965). The mere assertion of a claim for punitive damages is insufficient as a matter of law. Id.

In Pennsylvania, there is a paucity of case law regarding the question of whether cell phone usage while driving may give rise to allegations of reckless misconduct and a claim for punitive damages. However, there are two persuasive cases on point which offer guidance in this matter: Xander v. Kiss, 2012 WL 168326 (Northampton County CCP) and Piester v. Hickey, 2012 WL 935789 (E.D. Pa.).

In Xander, a Northampton County Court of Common Pleas decision, the court found that punitive damages were inappropriate under almost identical facts as the case at bar. The defendant was talking on his cellular phone, veered out of his lane of traffic, and collided with the plaintiff’s vehicle. Xander, 2012 WL 168326, at *1. The court struck down a claim for punitive damages, reasoning that the defendant simply lost control of his vehicle, an action which falls short of the requirement for evil motive or reckless indifference to the plaintiff’s rights. Id.

As persuasive support the Xander court cited to a recent Mississippi trial court decision, Gaddis v. Hegler, 2011 WL 2111801 (S.D. Miss. May 26, 2011). In Gaddis, punitive damages were deemed appropriate where the defendant was using his cell phone while driving. However, the additional factors in that case were that the defendant was speeding, failed to observe two stop light warning signals, ran a red light that was red for more than 10 seconds before he arrived at the intersection, and crossed two lanes of traffic before impact. Gaddis v. Hegler, 2011 WL 2111801, at *4 (S.D. Miss. May 26, 2011). The additional circumstances beyond the mere use of a cellular telephone gave rise to an appropriate claim for punitive damages.

The Easter District federal court in Piester relied on Xander in reaching the same holding, namely, that punitive damages are not recoverable where the only allegation in support thereof is that the defendant used or looked at his or her cell phone. Piester, 2012 WL 935789 at *4.

Plaintiffs assert the accident occurred because Defendant knew she was not paying attention to other traffic while talking on her cell phone. They characterize this as a deliberate choice to consciously disregard the risk of an accident, and reason that her alleged conscious disregard amounts to recklessness sufficient to justify an award of punitive damages. However, in their brief, Plaintiffs acknowledge that defendant did not intentionally cause this accident.

The cases defendant cites are strongly persuasive and support the conclusion that driving while talking on a cell phone, absent additional facts, does not give rise to an allegation of recklessness.

Plaintiffs rely on a federal case where a truck driver caused an accident after driving more than ten consecutive hours without a break. Burke v. Maassen, 904 F.2d 178, 183 (3d Cir. 1990). Punitive damages were appropriate in that case because the driver appreciated the risk of fatigue and the potential for fatal accidents. Id. However, the facts of that case are distinguishable from the case at bar because fatigue differs from the level of distraction caused by cellular phone usage.

Applying the law to the case at bar, defendant was talking on her cell phone and slowly moved into a lane of oncoming traffic at an intersection where she was required to yield. Plaintiffs failed to set forth additional allegations of erratic driving. See, e.g., Pennington v. King, No. 07-4016, 2009 WL 415718, at *6 (E.D.Pa. Feb. 19, 2009) (punitive damages appropriate where defendant truck driver operated tractor-trailer in wildly erratic manner which prevented decedent from passing)). While it is undisputed that the distraction of the cell phone caused defendant’s failure to yield when she was required to do so, the court finds that this does not give rise to an evil motive or a conscious indifference to plaintiff’s rights. To the contrary, the facts support only a claim that defendant was negligent.

As a result, the court finds that the facts do not constitute reckless conduct sufficient to support a claim for punitive damages.

Conclusion

Based on the persuasive case law discussed above, the court finds that in Pennsylvania, use of a cell phone, absent additional, well-pled allegations of misconduct, does not give support allegations of recklessness or corresponding claims for punitive damages. Accordingly, the averments of recklessness and requests for punitive damages in the instant complaint are stricken without prejudice. Plaintiffs are granted leave to file an amended complaint within twenty (20) days of the date of this order.