author: FORADORA, J.,

text:
    Guardian Elder Care at Brockway LLC v. WRC Highland View Health Care

      John F. Stoviak and Braden A. Borger, for plaintiff.

      Brett Farrar and Jeffrey Hantz, for defendant.

      May 1, 2012
   FORADORA, J.,

Introduction

In its motion for partial summary judgment, the plaintiff (“guardian”) asks the court to strike paragraphs 326 and 327 of the defendant’s (“WRC”) answer and new matter. Those paragraphs, it contends, assert impermissible defenses against its contract-based claims.

In support of its motion, guardian submitted a record that included copies of the complaint and answer; a copy of the contract at issue; transcript excerpts, and various other documents. Both parties submitted briefs, and the court entertained oral arguments on April 23, 2012.

Factual History

On May 21, 2007, the parties, acting through their designated representatives, entered into an asset purchase agreement (“agreement”) whereby WRC transferred to guardian its interest in the real property and assets located at 90 Main Street, Brockway. Mtn. for Part. Summ. J., Exh. B The assets included the buildings on the property, as well as the furnishings, equipment, and supplies housed in the buildings. Id., ¶ 1(b).

Among the agreement’s provisions is paragraph 7, representations and warranties of the selling parties, which begins:

The selling parties hereby j ointly and severally represent and warrant to the Buyer as follows, and all such representations and warranties shall be true and correct as of the date hereof and shall be true and correct as of the closing date and shall survive for the period of two (2) years from the closing date.

Subsection (e) of that paragraph, condition of assets, states in relevant part that “ [a] 11 of the assets are in good condition and working order, normal wear and tear excepted, and function properly for their intended uses. The assets constitute all of the assets necessary to the conduct of the business.” Id., ¶ 7(e).

WRC also makes the following guarantee with respect to the condition of the real property:

The buildings, structures and equipment included in the premises have no material defects, are in good operating condition and repair and have been reasonably maintained consistent with standards generally followed in the industry (giving due account to the age and length of use of same, and ordinary wear and tear), are suitable for their present uses and, in the case of buildings and other structures, such buildings and other structures (including without limitation, the roofs thereof) are structurally sound.

Id-, ¶ 7(s)(ii).

The final portion of the paragraph represents WRC’s truthfulness with respect to the representations made in the agreement, stating that:

[n]o representation or warranty by the selling parties contained in this agreement and no writing, certificate, list or other instrument furnished or to be furnished to the buyer pursuant hereto or in connection with the transaction contemplated hereby through the closing date contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary in order to make the statements and information contained therein not misleading or necessary in order to provide the buyer, as a prospective purchaser of the assets, with full and proper information with respect to the assets.

Id., 17(bb).

In addition to defining WRC’s affirmative contractual obligations, the agreement specified conditions precedent to the buyer’s obligations, one of which addressed guardian’s inspection of the premises:

The buyer shall have completed its due diligence review of the seller, the assets, the facility, the premises and the business on or before the due diligence period (as defined herein), the results of which shall be to its complete satisfaction as determined in its sole discretion, including but not limited to, the buyer’s obtaining, at the buyer’s sole expense, (i) an inspection of all mechanical equipment and all structures; (ii) an inspection of the facility to determine compliance with the Pennsylvania Department of Health’s regulations; (iii) an inspection of the premises to determine compliance with existing or proposed environmental protection laws and regulations; and (iv) title work with respect to the premises.

Id, t9(d).

In accordance with that provision, WRC authorized a 30-day period during which guardian could conduct its review and inspection and for which WRC would make available its financial and operating data “and other information and copies of documents with respect to [WRC’s] services, operations, the assets, the business, the facility, [and] the premises.” Id., ¶14. The express purpose of that paragraph was to allow guardian to investigate WRC’s affairs, the premises, and the accuracy of the representations and warranties contained in the agreement. Id.

Paragraphs 9(b) and 14 notwithstanding, WRC agreed to indemnify guardian under certain circumstances. As set forth in guardian’s complaint, the relevant portion of that provision reads as follows:

The selling parties, jointly and severally, shall indemnify the buyer against and hold the buyer and its affiliates harmless of and from, and shall be liable for any and all demands, claims, losses, expenses, damages, deficiencies and liabilities of any kind or description made against and incurred by the buyer or its affiliates (including reasonable attorneys’ fees and other costs and expenses incident to any suit, action or proceeding or any investigation with respect thereto) resulting at any time after the date of this agreement by reason of (i) any misrepresentation, breach of warranty or nonfulfillment of any covenant or agreement on the part of the selling parties, or either of them, contained in this agreement.

Id., ¶ 16(a). That indemnification provision did not expressly limit WRC’s obligations only to issues about which guardian was unaware or which were beyond the scope of what it discovered or should have discovered during its due diligence review and inspection. Nor did WRC negotiate a separate provision to thus limit guardian’s future claims. Through its representatives’ signatures, it nonetheless confirmed that the agreement constituted the parties’ entire agreement, superseding all prior negotiations, agreements, and understandings. Id., ¶ 23(f). “This agreement,” it further acknowledged, “may not be amended or revised except by a writing signed by all parties hereto.” Id.

WRC and guardian also agreed to the waiver of terms and conditions provision, thereby conceding that:

[t]he failure of any party to enforce at any time any of the provisions of this agreement shall in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this agreement or any part hereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach of this agreement shall be held to be a waiver of any other or subsequent breach.

Id. A23(i).

WRC was represented by counsel as the parties negotiated the terms of the agreement, and before it was executed on May 21,2007, each member of WRC’s board received a copy of the document by e-mail. See id, Exhs. C (WRC Depo., 11/25/2011) & D (WRC Bd. Mins, from May 21, 2007). Moreover, at a meeting called for the specific purpose of reviewing the agreement, attorney Kimber Latsha, appearing by phone, discussed its terms, including the representations and warranties provisions and a few minor changes to be made. Id. The board then voted unanimously to approve the agreement. Id.

Approximately two years later, Saul Ewing, LLP’s Deborah Spranger, esquire sent a letter purporting to be a “formal notice pursuant to section 16(c) of the purchase agreement of buyer’s claim for indemnity in the estimated amount of $966,960.70.” Id., Exh. E. Sent to the attention of WRC’s President and CEO, that letter reiterated what guardian deemed to be the operative terms of the agreement, itemized the alleged defects it had uncovered, and requested payment in the above-quoted amount.

On March 4, 2011, when payment was still not forthcoming, guardian filed a 299 paragraph complaint in which it pled 19 separate counts of breach of an express warranty on account of alleged material defects to the building and parking lot, furniture, and various systems and equipment; 1 count of breach of contract founded on WRC’s failure to indemnify it for the alleged defects; and 1 count each of fraudulent concealment/misrepresentation and negligent misrepresentation. Id, Exh. A.

WRC responded with an answer and new matter averring multiple affirmative and other defenses. See Id, Exh. F. Among them, WRC alleged that “[pjlaintiffs, prior to and up to closing, had the duty to perform, and conducted, a due diligence review and inspection of the Assets, facility and premises and identified no defects or deficiencies with respect to the same.” Id., ¶ 326. In the next paragraph it raised “the affirmative defense that because plaintiffs had the opportunity to inspect the assets, facility and premises, any alleged defects, which are denied, were disclosed by defendants and accepted by plaintiffs at the time of closing.” Id, ¶327. It is those two paragraphs with which guardian takes issue.

According to guardian, a breach of warranty claim does not contain a reliance element, thereby making WRC’s attempts to raise areliance defense impermissible as amatter of law. Referencing the language of the complaint, WRC disagrees, calling the court’s attention to paragraphs 1,21, 34, and similar averments wherein guardian alleges that it was entitled to and did reasonably rely on the agreement’s representations and warranties. Characterizing them as “judicial admissions,” WRC contends that guardian itself raised the question of reliance and must be held to it.

Guardian classifies its reliance averments as legal conclusions, however, observing that WRC does the same in its answer and noting that legal conclusions are not subject to the doctrine of judicial admissions. WRC does not concede the point, though. Acknowledging its repeated averment that “[t]he allegations contained in this paragraph state conclusions of law to which no response is required,” see id., Exh. F, ¶¶ 21, 34, it also notes that it treated guardian’s reliance averments as factual in nature, as evidenced by its additional repetition of the following language: “To the extent that a response is required, after reasonable investigation, defendants are without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in this paragraph and, therefore, denies the same and strict proof thereof is demanded at the time of trial.” Id.

Discussion

A plaintiff may petition for and a court may grant summary judgment if, after the close of pleadings, the record reveals that there exists no genuine issue of material fact as to a necessary element of an asserted defense. Pa.R.Civ.P. 1035.2(1). In deciding that question, the reviewing court must construe the facts of record and their reasonable inferences in the light most favorable to the non-moving party. Shipley Fuels Mktg., LLC v. Medrow, 37 A.3d 1215, 1217 (Pa. Super. 2012). Only where the record is clear and free from doubt may summary judgment be granted. Toy v. Metro Life Ins. Co., 593 Pa. 20, 21, 928 A.2d 186, 195 (2007).

In this case, that standard favors guardian, because while our appellate courts have not directly answered whether reliance factors into a breach of warranty claim where the warranty appears as an express contractual provision, the general and well-established principles of contract law compel the result for which guardian advocates.

It is a fundamental and oft-repeated precept that a court interpreting a contract must give effect to the parties’ intent as evidenced by the clear and unambiguous terms of the written instrument and may not modify that plain meaning under the guise of interpretation. E.g., TruServ Corp. v. Morgan’s Tool & Supply Co., 39 A.3d 253, 260 (2012); Crawford Cent. Sch. Dist. v. Commonwealth, 585 Pa. 131, 143, 888 A.2d 616, 623 (2005). This is the case, according to Crawford Central School, because “[t]he intent of the parties to a written agreement is embodied in the writing itself [and] [c]ourts do not assume a contract’s language was chosen carelessly, nor do they assume the parties were ignorant of the meaning of the language employed.” Id.

A plain reading of the contract at issue here leaves no room for the insertion of reliance.

Without caveat, WRC warranted that its assets were in good condition and working order; were functional for their intended uses; and constituted all of the assets necessary for guardian to conduct business. It further warranted that the buildings, structures, and equipment being sold contained no material defects and were in good operating condition and repair. In addition, it verified that its warranties and representations did not and would not contain any omissions or untrue statements of material fact that would mislead guardian. Those were WRC’s unequivocal, unqualified, and bargained-for guarantees, and the due diligence provisions did not alter its obligation to fulfill them.

In accordance with paragraphs 9(d) and 14 of the agreement, guardian was afforded ample opportunity to conduct a due diligence review and inspection. Yet neither purported to relieve WRC to any degree of its duties under the representations and warranties. Nor did the parties insert a separate provision whereby guardian agreed to waive those duties on account of its due diligence review and inspection. On the contrary, paragraph 23 (i) specifically stated that neither party’s failure to enforce any part of the agreement would be construed as a waiver or as affecting the validity and enforceability of the agreement.

Read so as to effectuate its clear and unambiguous terms, therefore, the text of the agreement itself leaves no room for the conclusion that the legal force and effect of WRC’s representations and warranties was in any manner affected by the degree to which guardian did or should have relied on them.

Equally telling are the constituent elements of the cause of action for breach of contract — of which breach of an express warranty is but a derivative.

To establish a breach of contract, a litigant need prove only three things: first, that a contract exists; second, that the opposing party breached a duty imposed by the contract; and third, that the claimant sustained damages as a result of the breach. See Kane v. State Farm Fire & Cas. Co., 841 A.2d 1038, 1042 (Pa. Super. 2003). Nowhere does one find the additional element of reliance in the cause of action, because the central focus of contract law is not to redress a personal or property injury as one may do in tort, but to protect the parties’ bargained-for expectations. Meyer v. Cmty. Coll. Of Beaver County, 2 A.3d 499, 502 (Pa. 2010).

One cannot reasonably surmise that the law intends that courts imply reliance, either. Rather, the law specifically recognizes certain hybrid claims, such as promissory estoppel, where an initiating promise undergirds the plaintiff’s claim of injury but where that promise is not enforceable as a bargained-for, contractual guarantee. See e.g. Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 717-18 (Pa. Super. 2005) (reiterating the elements of promissory estoppel and noting that the doctrine permits a claimant to enforce a promise in the absence of consideration). There it is imperative that the plaintiff proves actual, detrimental reliance on the promise. Conversely, the articulated elements of a breach of contract claim ask only whether the alleged promise exists, whether the defendant broke that promise, and whether the plaintiff was injured as a result. Whether the plaintiff actually relied on that promise as his specific incentive for agreeing to the contract is immaterial.

Also compelling is the policy undergirding contract law and the undesirable but foreseeable ramifications of requiring breach of contract/warranty plaintiffs to prove a tort-like reliance.

“[T]he central focus of contract law,” says Meyer, is the protection of bargained-for expectations.” 2 A.3d at 502. That policy can only be advanced by requiring parties to perform their contractual obligations according to their explicit, negotiated terms, not according to what an allegedly breaching party contends were the aggrieved party’s reliance expectations. Otherwise, contracting parties would be forever uncertain about the effectiveness of any contractual provision where it could later be argued that the defending party did not reasonably rely on it for one reason or another.

Likewise, as judge O’Neill persuasively articulated in Giuffrida v. American Family Brands, Inc., Nos. CIV.A. 96-7062 & CIV.A. 96-7256, 1998 WL 196402 (E.D. Pa., April 23, 1998), representations and warranties such as those found in the agreement signify the apportionment of risk to which the contracting parties explicitly agree, and a party dissatisfied with the imposed risks may renegotiate or not agree to the transaction at all. See id. at *4. Once an agreement is executed, however, all parties involved should know precisely the nature and extent of their duties in relation to one another. Injecting the question of reliance eviscerates that certainty and predictability, however, because “it permits sellers to escape liability for negotiated representations and warranties by arguing to a fact-finder that buyers did not rely on the representations and warranties [and] allows contracting parties to avoid the plain meaning and effect of the contract to which they agreed.” Id.

As judge O’Neill further notes, introducing reliance into a cause of action for breach of an express warranty will also tend to encourage gamesmanship on the part of buyers, who will be incentivized to avoid due diligence in order to avoid a potential claim that their performance of due diligence waived the sellers’ obligations under the representations and warranties. See id. at *5.

The approach adopted in Giuffrida and which this court adopts today leaves the apportionment of risk exactly where the parties laid it in the first place. It thus does exactly what contract law purports to do, which is to protect parties’ bargained-for expectations by enforcing their bargains according to the plain meaning of the terms they originally negotiated. It is their duty to consider those terms, consider the validity of their representations and warranties, and determine whether they are willing to accept the unqualified risk of fulfilling them. If the answer is no, they may negotiate different terms, include an explicit waiver provision based on reliance, or abandon negotiations altogether. Under the clear dictates of contract law, however, it is not for courts to later rewrite contracts when a party wishes to operate under a different bargain.

It is the decision of this court, therefore, that WRC may not insert an additional element into guardian’s breach of warranty and contract claims by asserting that it did not rely on the agreement’s representations and warranties when it signed the agreement.

ORDER

And now, May 1, 2012, for the reasons articulated in the foregoing opinion, it is hereby ordered and decreed that the plaintiff’s motion for partial summary judgment is granted. Accordingly, paragraphs 326 and 327 shall be stricken from the defendant’s answer and new matter.

      . WRC also noted that reliance was without question a legally cognizable defense to guardian’s tort claims and that striking paragraphs 326 and 327 would deprive it of a viable defense. Guardian agreed and clarified at oral arguments that it was only asking the court to strike the paragraphs as they related to its contract claims. Because the parties correctly perceive the law in that regard, the court accepts guardian’s clarification as an oral amendment to its motion and will address only whether reliance is a factor to be considered in contract-based claims.


source: Caselaw Access Project

author: TUCKER, J.,

license: Public Domain

text:
    Fannie Mae v. Scarborough

      Lauren Rachel Tabas, for appellee.

      Frances Scarborough, pro se.
    May 23, 2012
   TUCKER, J.,

I. Procedural History

This matter comes before the court on appeal from the granting of plaintiff’s motion for summary judgment pursuant to the Pennsylvania Rules of Civil Procedure. Pa.R.C.P. 1035.2. The relevant facts are as follows:

II. Facts

The underlying facts in this case stem from an action in mortgage foreclosure which began on December 21,2005. Mot. for summary J. (12/27/2011). Summary judgment was entered in favor of the mortgagor and against Frances Scarborough (hereinafter referred to as “appellant”) on February 6,2007 for a property located at 5116 N. Wamock Street, Philadelphia, PA. Id. Execution and sheriff’s sale were scheduled for the Wamock Street property for May 2007; however appellant revived or initiated a bankruptcy action, thereby postponing the sheriff’s sale. Id. The sheriff’s sale was eventually scheduled for July 1, 2008. Id.

Fannie Mae (hereinafter referred to as “appellee”) was the successful bidder at a July 1, 2008 sheriff’s sale for Wamock Street properly. Id. Appellant filed for her seventh (7th) bankruptcy on the same day; no automatic stay went into effect. Id. Appellant filed a motion to strike judgment and set aside the sheriff’s sale; this motion was denied and dismissed with prejudice on October 9, 2008. Id. Appellant failed to timely appeal the court’s denial of the motion to strike judgment and set aside sheriff’s sale. Id. The sheriff’s deed was recorded on February 10, 2009. Id.

On March 14, 2011, appellee sent a letter to appellant advising her that appellee was the owner of the Warnock Street property; that appellant was in possession of the property without authority; and that appellant was to immediately vacate the premises or be subject to a court action. Mot. for summary J. (12/27/2011). Appellee filed a complaint in ejectment against appellant in Philadelphia County court of common pleas on April 25,2011. Compl. filed notice given (04/25/2011).

On June 29, 2011 appellant filed a suggestion of bankruptcy in the Philadelphia County Court of Common Pleas. Suggestion of bankruptcy (06/29/2011). Appellee filed a notice of bankruptcy dismissal on July 05, 2011, wherein appellee confirmed that appellant’s bankruptcy was dismissed by the Bankruptcy Court in the United States Eastern District of Pennsylvania. Bankruptcy dismissal (07/05/2011). After appellant’s preliminary objections were overruled by the court, appellee filed a motion for summary judgment, which was granted by the court on February 9, 2012. Prelim. Objections (07/15/2011); Order entered by J. Panepinto (09/28/2011); Mot. for summary J. (12/27/2011); Judgment entered by J. Tucker (02/09/2012). This timely appeal follows.

On March 11, 2012, appellant filed a motion for reconsideration, which was denied by the court on March 21, 2012. Mot. for reconsideration (03/11/2012); order entered by J. Tucker (03/21/2012). The court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) on April 4, 2012, wherein stating that “[t]he day for filing said statement is the 23rd of April, 2012. Failure to comply with this order will be deemed a waiver of issues....” (“1925(b) statement”). On May 2, 2012, almost ten (10) days after the court ordered, response date, appellant filed her 1925(b) statement wherein alleging thirteen (13) errors by the court. 1925(b) statement (verbatim, emphasis retained):

1. The common pleas court of Philadelphia (“CCP”) lacks jurisdiction over this instant action pursuant to In re Scarborough. 2009 WL 159240 (E.D. Pa. Jan. 22, 2009),
“the bankruptcy stay is now in effect, and precludes any further action to enforce the creditor’s claim, unless approved in this proceeding”.
2. Fannie Mae lacks standing to sue Ms. Scarborough because Fannie Mae is no real party in interest.
3. The common pleas court erred in granting the summary judgment dated Feburary 9, 2012.
4. The February 9, 2012 grant of summary judgment was not lawful.
5. Ms. Scarborough was prejudiced by the entry of summary judgment in favor of Fannie Mae.
6. Without a trial, Ms. Scarborough did not receive a fair opportunity to put her best foot forward.
7. The trail court has not resolved all doubts as to the existence of all genuine issues of material fact against the moving party, Fannie Mae.
8. The discovery is incomplete; the case record is undeveloped; the disclosure materials, and affidavits demonstrate a genuine issue as to the material facts.
9. Fannie Mae is not entitled to judgment as a matter of law.
10. The trial court failed to consider all facts of record and reasonable inference therform, in a light most favorable to Ms. Scarborough. See Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 21, 928 A.2d 186,195 (2007).
11. Fannie Mae’s right to a grant of summary judgment is not clear and free from all doubt.
12. Disputes over property ownership remain in litigation, contrary to Fannie Mae’s assertions that all litigation has ended.
13. If Fannie Mae has standing to sue, then consumer disclosure laws have been violated.

1925(b) statement.

Appellant’s failure to timely file her 1925(b) statement is a waiver of all issues. Appellant attempted to obtain permission to file her late 1925(b) statement via a “motion to amend” filed on the same day. Mot. to amend (05/02/2012). This motion was not considered by the court. In addition to being untimely filed, appellant’s 1925(b) statement is not in accordance with Pa.R.A.P. 1925(b) and is thereby also deemed waived pursuant to Pa.R.A.P. 1925(b)(4)(vii). A discussion ensues.

III. Legal Analysis of Appellant’s Claims

a. Since Appellant has failed to timely file a 1925(b) statement, her claims are deemed waived.

Pa.R.A.P. 1925(b) provides in pertinent part:

[T]he judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal (“statement”). Pa.R.A.P. 1925(b).

Pa.R.A.P. 1925(b) states:

The judge shall allow the appellant at least 21 days from the date of the order’s entry on the docket for the filing and service of the statement.
* * *
The judge’s order...shall specify...the number of days after the date of entry of the judge’s order within which the appellant must file and serve the statement.
* * *

Pa.R.A.P. 1925(b)(2)-(3)(i).

Pa.RA.P. 1925(b) further provides that an appellant’s failure to raise any issues in accordance with its provisions will result in the waiver of those issues:

Issues not included in the statement and/or not raised in accordance with the provisions of this paragraph (b) (4) are waived.

Pa. R.A.P. 1925(b)(4)(vii).

Here, the court ordered appellant to file her 1925(b) statement, as docketed, on April 4, 2012. Order entered by J. Tucker (04/04/2012)(“faiure to comply with this order will be deemed a waiver of issues”). Accordingly, appellant had until April 25, 2012 to file her 1925(b) statement; appellant filed her 1925(b) statement on May 2, 2012. Statement of matters (1925(b)(05/02/2012). Although appellant filed a motion to request an extension to file the 1925(b) statement, this request was not directed to the court’s attention prior to the expiration of the timely filing date. Motion to amend (05/02/2012). Appellant’s motion to amend does not toll the twenty-one (21) day filing period. Since appellant has failed to file a 1925(b) statement within the twenty-one (21) day period mandated by Pa. R.A.P. 1925(b), appellant’s claims are deemed waived. See Commonwealth v. Castillo, 585 Pa. 395, 402, 888 A.2d 775, 780 (2005); Commonwealth v. J. Schofield, 585 Pa. 389, 393, 888 A.2d 771, 774 (2005).

b. Appellant has also waived all issues on appeal not properly raised in accordance with Pa.R.A.P. 1925(b).

It is well settled that when the trial court orders an appellant to submit a 1925(b) statement, it is a crucial component of the appellate process. Commonwealth v. Lord, 553 Pa. 415, 417, 719 A.2d 306, 307 (1998). Pursuant to the Pennsylvania rules of civil procedure, a 1925(b) statement must be concise and set forth only those rulings or errors that appellant intends to challenge. Pa.R.A.P. 1925(b)(4)(i). This rule guards against lengthy and incoherent statements that impede appellate review. Dorazio v. Equip. Corp. of Am., 2009 Phila Ct. Com. Pl. LEXIS 80 (Phila. Com. P. LEXIS June 4, 2009)(appeal dismissed without opinion by Dorazio v. Equip. Corp., 996 A.2d 19 (Pa. Super. 2010). Issues not raised in accordance with the provisions of Pa.R.A.P. 1925(b) are waived. Pa.R.A.P. 1925(b)(4)(vii). Although the number of issues, standing alone, is not grounds for finding such waiver, the issues raised in the 1925(b) statement must be “non-redundant” and “non-frivolous.” Pa.R.A.P. 1925(b) (4)(iv). Furthermore, even if by chance the trial court correctly guesses the issues appellant raises on appeal and writes an opinion pursuant to that supposition, the issues are still waived. Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002).

Here, appellant has submitted thirteen (13) errors allegedly committed by the court. The alleged errors are redundant, frivolous and nonspecific. The court will not attempt to decipher appellant’s 1925(b) statement to glean which issues are non-redundant, and/or non-frivolous. Heggins, 809 A.2d at 911-12 (Pa. Super. 2002).

It appears that appellant seeks to collaterally attack the foreclosure and subsequent sheriff’s sale of the Wamock Street property, and the outcome of her numerous bankruptcy filings in the Bankruptcy Court of the United States Eastern District of Pennsylvania. Appellant has exhausted her legal remedies as they relate to the state mortgage foreclosure, sheriff’s sale and federal bankruptcy actions. Chase Home Finance, LLC v. Frances Scarborough, No. 3402 EDA 2009, slip op. at 2-3, 10 (Pa. Super. Dec. 14, 2010); In re Frances Scarborough, No. 11-2293, 2012 U.S. App. LEXIS 526, at *12-17, 21-22 (3d Cir. Jan. 10, 2012)(not precedential). Simply stated, Chase Home Finance foreclosed on the Wamock Street property; appellant filed a series of bankruptcy actions; appellee purchased the Wamock Street property at a sheriff’s sale in 2008 while the automatic bankruptcy stay was lifted; and appellee subsequently filed an action in ejectment against appellant.

Appellant’s inability to comply with Pa. R.A.P. 1925(b) has precluded this court from providing a meaningful review of her claims and therefore her claims are waived. The court notes that appellant appeared pro se on the motion for summary judgment. Answer (motion/petition) filed (01/31/2012). Appellant is held to the same standard as practicing attorneys. First Union Mortgage Corp., v. Frempong, 744 A.2d 327, 333 (Pa. Super. 1999). Appellant’s failure to comply with the court’s order and the Pennsylvania mies of appellate procedure renders appellant’s claims on appeal waived.

c. Appellee demonstrated that there are no genuine issues of any material fact as to any necessary element of the underlying ejectment action and that there are no defenses which could be established at trial.

Although deemed waived, the trial court will attempt to address issues thought to be raised by appellant. To the extent that appellant claims that the court erred in granting summary judgment in favor of appellee, appellee demonstrated that there are no genuine issues of material fact as to any necessary element of appellee’s action in ejectment. Appellee also demonstrated that there aren’t any viable defenses to appellee’s ejectment action. Under the Pennsylvania rules of civil procedure, a plaintiff may file an action in ejectment to obtain possession of real property. Pa.R.C.P. 1051. To obtain relief in an action in ejectment, a party other than the plaintiff must be in possession of the subject property at the time of filing the ejectment action. Brennan v. Shore Bros, Inc., 380 Pa. 283, 285-286, 110 A.2d 401, 402-403 (1955). In addition, the plaintiff must have a present right to possess the subject property at the time of filing the ejectment action. Id. A party may obtain the right to possess a property via sheriff’s sale. When a party asserts a possessory interest in real property based a successful bid and purchase at a sheriff’s sale, the right to immediate possession accrues when the sheriff’s deed is acknowledged and recorded. Wells Fargo Bank, N.A. v. Long, 934 A.2d 76, 77-80 (Pa. Super. 2007).

Appellee demonstrated that there are no genuine issues of material fact in the underlying ejectment action. Under the Pennsylvania rules of civil procedure, a party may move for summary judgment where 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.” Pa.R.C.P. 1035.2. The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Wells Fargo, 934 A.2d at 77 (Pa. Super. 2007). The court shall grant summary judgment when the facts are so clear that reasonable minds cannot differ as to whether the moving party is entitled to judgment as a matter of law. Mt. Village v. Bd. of Supervisors of Longswamp Twp., 582 Pa. 605, 613-614, 874 A.2d 1, 5-6 (2005). In addition, the court must view the record in the light most favorable to the non-moving party. Id.

Here, appellee became the owner of the Wamock Street property as a result of a sheriff’s sale on July 1, 2008. The sheriff’s deed was recorded, and therefore acknowledged, on February 10,2009. Motion for summary J. (12/27/2011). Appellee obtained the immediate right to possession once the sheriff’s deed was acknowledged and recorded. Wells Fargo, 934 A.2d at 77-80 (Pa. Super. 2007). Appellee filed a complaint in ejectment against appellant on April 25, 2011. On March 14, 2011, appellee sent a letter to appellant stating that “[appellant] is now in possession of the [Wamock Street] premises without authority or permission...you must vacate immediately.” Id. Appellee was out of possession of the Wamock Street property when the ejectment action was filed. Brennan, 380 Pa. at 285, 110 A.2d at 403. Appellant attempts to defend against the ejectment action by arguing, presumably, that the July 1, 2008 sheriff’s sale was improper due to the imposition of an automatic bankruptcy stay. There was no automatic stay in effect during the July 1,2008 sheriff’s sale. Chase Home Finance, slip op. at 2-3, 10; In re Frances Scarborough, 2012 U.S. App. LEXIS 526, at *5-10, 12-16. There are no genuine issues of material fact or any viable defenses to appellee’s action in ejectment against appellant.

IV. Conclusion

Issues raised in appellant’s 1925(b) statement are waived. Appellant failed to timely file her 1925(b) statement and failed to submit a 1925(b) statement that meets the requirements of the Pennsylvania Rules of Civil Procedure. Furthermore, appellee met the burden of demonstrating that there are no genuine issues of material fact related to the underlying ejection action filed against appellant. The court’s ruling must stand.


author: FRITSCH, J.,

text:
    Ahmad v. Aetna, Inc.

      Stephen R. Bolden, for appellant.

      John M. Elliott, James C. Crumlish, Brian R. Elias, and Roger J. Harrington, for appellees.
    May 18, 2012
   FRITSCH, J.,

The matter presently before the court is the appeal of Imtiaz Ahmad, M.D., from this court’s order of February 14, 2012, denying appellant’s renewed motion for summary judgment and granting appellees’ motion for summary judgment. We file this opinion pursuant to Pennsylvania rule of appellate procedure 1925(a).

BACKGROUND

The present action was commenced by the filing of a complaint (“First Bucks County Action”) by Imtiaz Ahmad, M.D. (hereinafter sometimes referred to as “Dr. Ahmad” or “appellant”), against Aetna, Inc., and Dr. Andrew Baskin, M.D. (hereinafter singularly referred to as “Aetna” or “Dr. Baskin” or collectively referred to as “appellees”), on October 24,2002, asserting state law claims for defamation and intentional interference with present and prospective contractual relationships. On January 13, 2003, appellant filed a second complaint (“Second Bucks County Action”) against appellees asserting state law claims for defamation and intentional interference with present and prospective contractual relationships at Bucks County Docket No. 2003-00245. On September 30, 2003, appellees filed a complaint in the Montgomery County court of common pleas (“Montgomery County Action”) asserting claims of against Dr. Ahmad.

By order dated February 2, 2006, the Bucks County actions were consolidated under the above-captioned docket. On March 9, 2006, appellant filed a motion to consolidate the Montgomery County Action with the now consolidated Bucks County actions. On June 22, 2006, the undersigned granted Dr. Ahmad’s motion and all three actions were consolidated under the above-captioned docket.

Appellant filed his initial motion for summary judgment in the Montgomery County court of common pleas prior to the transfer of that action to this court. On May 25, 2005, the Montgomery County court of common pleas denied appellant’s motion for summary judgment to all counts of appellees’ amended complaint except for count III, which asserted a claim for breach of the duty of good faith and fair dealing, as to which it granted summary judgment in favor of appellant.

On April 24, 2008, appellant filed a second motion for summary judgment requesting dismissal of appellees’ claims. Following oral argument, the undersigned denied Dr. Ahmad’s motion by order on September 5, 2008. Following the litigation of discovery disputes and the issuance of multiple case management orders, Dr. Ahmad filed a renewed motion for summary judgment after all discovery had been completed and/or for clarification of this court’s prior order denying plaintiff’s motion for summary judgment on May 20, 2011. On May 23, 2011, appellees filed a motion for summary judgment with respect to Dr. Ahmad’s claims. Appellant filed his response to appellees’ motion for summary judgment on June 29,2011. Thereafter, appellees filed their response to Dr. Ahmad’s renewed motion for summary judgment on June 30, 2011. Oral argument was held on both motions before the undersigned on October 6, 2011.

The record pertinent to both motions revealed the following:

Dr. Ahmad is a licensed cardiovascular and thoracic surgeon. In 1997, he opened the Comprehensive Vein Treatment Center in Trenton, New Jersey. At the Comprehensive Vein Treatment Center, Dr. Ahmad treated patients afflicted with varicose veins and other similar conditions. Through investigation, Aetna alleges that Dr. Ahmad engaged in a billing scheme in which he would perform cosmetic surgery to remove medically harmless spider veins and then “up-code” the procedure into medically necessary categories for billing purposes. Dr. Baskin, an Aetna Medical Director responsible for the South Jersey geographical area that includes Dr. Ahmad’s Treatment Center, learned that appellant’s use of a particular billing code was highly irregular in its frequency. As a result of the allegations, Aetna sent Dr. Baskin to Dr. Ahmad’s office to inspect his files. Following his visit, Dr. Baskin recommended that Aetna conduct further investigation for possible fraudulent conduct by Dr. Ahmad. At that time, Aetna sent letters to five of Dr. Ahmad’s patients indicating that they would be denying payment for the procedures because they considered them to be cosmetic. Ultimately, Dr. Ahmad was advised that Aetna would not pay for the treatment of spider veins without pre-approval of any proposed procedures.

Kati Berman, an investigator in Aetna’s Special Investigations Unit, received a referral from Dr. Baskin to investigate Dr. Ahmad. Ms. Berman continued with the investigation by reviewing the information provided by Dr. Baskin and conducting telephone interviews with some of Dr. Ahmad’s patients for whom he had used the billing code in question multiple times. Ms. Berman ultimately concluded that there was clear misrepresentation by Dr. Ahmad that warranted a referral to the New Jersey Medical Board and the Fraud Bureau. On October 13, 2000, Ms. Berman wrote a letter to William Roeder, executive director of the Board of Medical Examiners, indicating that Dr. Ahmad was falsifying medical records to obtain insurance benefits for cosmetic procedures in the amount of $871,400.00. In this letter, Ms. Berman included Aetna’s investigative file for the board’s use in evaluating Dr. Ahmad’s situation. Additionally, Ms. Berman began to initiate procedures to recoup the overpayment from Dr. Ahmad. On February 13, 2001, Michael Stergio, director of Aetna’s special investigations unit, wrote a letter to Dr. Ahmad demanding that he reimburse Aetna the sum of $941,400.00 for overbilling relating to the cosmetic spider vein procedures.

The New Jersey board of medical examiners conducted an investigation of Dr. Ahmad, with no input from Aetna. In April 2006, the board decided to administratively close their case involving Dr. Ahmad due to a conflict of interest that had developed involving their expert witness.

On February 14, 2012, in light of the aforementioned factual background, we denied appellant’s renewed motion for summary judgment and granted appellees’ motion for summary judgment. This timely appeal followed.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

On March 9, 2012, this court ordered appellant file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant served upon the undersigned a 10-page statement of errors (hereinafter “statement”) comprised of 28 paragraphs. We believe that appellant’s voluminous statement could constitute grounds to dismiss his appeal.

In addressing rule 1925(b), the Superior Court has stated that “[t]he purpose of the rule is to aid trial judges in addressing the issues raised by an appellant on appeal.” Commonwealth v. Otero, 860 A.2d 1052, 1055 (Pa. Super. 2004). When an appellant is ordered to file a concise statement of matters complained of on appeal under Pa.R.A.P.1925, any issue not contained in that statement is waived on appeal. Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super. 2008). Furthermore, when an appellant fails to adequately and concisely identify the issues sought to be pursued on appeal, he or she hinders a trial court in its attempt to prepare pertinent legal analysis on those issues. Commonwealth v. McCree, 857 A.2d 188, 192 (Pa. Super. 2004) (citing, Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001)). Essentially, “a concise statement which is too vague to allow the court to identify the issue raised on appeal is the functional equivalent of no concise statement at all.” Id.

In other words, rule 1925(b) is not satisfied merely by submitting a statement of contentions. Tucker vs. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007). Instead, the statement must be sufficiently concise and coherent so as to permit a trial court to understand the specific issues being raised on appeal. Id. When “appellants raise an ‘outrageous’ number of issues in their 1925(b) statement, the appellants have ‘deliberately circumvented the meaning and purpose of rule 1925(b) and ha[ve] thereby effectively precluded appellate review of the issues [they] now seek to raise.” Id. (quoting, Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 2004)).

We perceive that appellant’s 10-page, 28-paragraph statement is sufficiently prolix so as to constitute grounds for dismissing his present appeal. Portions of appellant’s non-concise statement bear a closer resemblance to a pleading or memorandum of law than to a concise statement under 1925(b). Instead of framing the issues he wishes to raise on appeal in a concise and organized fashion, Appellant has inundated us with 28 paragraphs of argument concerning every perceived error in this court’s decision.

Assuming arguendo that appellant’s statement sets forth a sufficient basis for appellate review, we will attempt to address his appeal on the merits. For purposes of discussion, this court perceives that appellant’s primary argument concerns our alleged failure to consider evidence of bad faith and malice with respect to appellees. We also observe from appellant’s lengthy statement that he claims that this court improperly assumed the role of fact finder, violated the “Nanty-Glo Rule” in making our findings of fact and relied upon inadmissible double hearsay evidence. With regard to these claims, we did not decide contested issues of material fact when we denied appellant’s motion, but merely found an absence of facts supporting appellant’s contentions.

DISCUSSION

In our view, the main thrust of appellant’s statement was his contention that this court erred when we failed to consider appellant’s evidence of bad faith and malice. Appellant argues that he presented evidence which would have permitted a factual finding that appellee’s primary purpose in reporting him to the board was to assist in its collection efforts. We disagree.

Under Pennsylvania Rule of Civil Procedure 1035.2, the standard for summary judgment is:

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 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 order to prevail in his claims, appellant must demonstrate that Aetna acted maliciously and in bad faith when it reported him to the New Jersey board of medical examiners. N.J.S.A. 45:1-35. Specifically, New Jersey law provides that:

A health care entity, health care professional or any other person who provides to the division, a board or the review panel, in good faith and without malice, any information concerning an act by a health care professional which the person has reasonable cause to believe involves misconduct that may be subject to disciplinary action by the division, board or review panel, as applicable, or any information relating to such conduct requested by the division, board or review panel in the exercise of its statutory responsibilities or which may be required by statute, shall not be liable for civil damages in any cause of action arising out of the provision of such information or services.

Id. A finding that disciplinary action is warranted by the board is not required for a party to claim the privilege. Feit v. Horizon Blue Cross & Blue Shield of N.J, 897 A.2d 1075, 1081 (N.J. Super. Ct. App. Div. 2006). There, the court held that the immunity is afforded when the person or entity providing the information “has reasonable cause to believe...[the physician or surgeon] may be subject to disciplinary action.” Id.

We found no evidence that Aetna, a health care entity under the statute, acted in bad faith or with malice during its investigation of Dr. Ahmad. Upon learning that Dr. Ahmad may have been engaging in a fraudulent billing scheme in order to have insurance companies pay for cosmetic spider vein surgery, Dr. Baskin sought to review Dr. Ahmad’s files. As a result of that examination, Dr. Baskin concluded that Dr. Ahmad may have, in fact, been engaging in the alleged fraudulent billing scheme and suggested that additional investigation was needed. He turned the matter over to Aetna’s special investigations unit, specifically Kati Berman. Ms. Berman followed up on Dr. Baskin’s investigation by conducting telephone interviews with some of Dr. Ahmad’s patients who were believed to have received the cosmetic procedure. Ms. Berman reviewed her findings with her superiors and ultimately decided that his conduct necessitated a referral of appellant to the New Jersey medical board and the fraud bureau.

Appellant argues that the privilege does not apply in the present case because Aetna acted in bad faith by failing to conduct a sufficiently thorough investigation. He maintains that Ms. Berman’s investigation was not thorough because she was not a licensed medical professional nor did she consult with an independent licensed medical professional before referring Dr. Ahmad to the board. We disagree with appellant’s position. It was clear from the uncontested record that Ms. Berman was experienced in conducting investigations of medical professionals. Even if her investigation was less than thorough, we do not believe that this fact, standing alone, would indicate “bad faith.”

Appellant also claims that Aetna, along with other health care insurers, when seeking reimbursement from medical providers, uses referrals to the board as a tactic to pressure physicians to repay monies by accusing them of insurance fraud. In support of this argument, appellant presented the deposition testimony of Michael Schoppman, esquire — appellant’s counsel during board proceedings — and Michael Stergio —Aetna’s investigator. Dr. Ahmad claims that their testimony indicates that Aetna’s real motive for reporting him to the board was to increase its chances of recovering from him. Initially we note that this testimony was of a general nature and that it did not go to any specific acts or statements demonstrating bad faith.

This court does not doubt that a health care insurer often has a financial interest in an underlying matter when it reports a health care provider to the board; however, we do not believe that a financial interest automatically prevents a health care entity, like Aetna, from claiming the statutory privilege. We acknowledge that a health insurer may have a financial interest in addition to a public interest in eliminating fraud when it commences an investigation into a physician or health care provider or reports said individual or entity to the board for further examination. Appellant seemingly would have us rule that a presumption of bad faith arises any time an entity which acts in the public interest by revealing fraud also has a financial involvement in the matter. If we adopted appellant’s position, only the most altruistic and independent entities — not a health care insurer or any individual or entity that could derive some ancillary financial benefit — could claim the privilege and the New Jersey statute would be rendered almost meaningless. Consequently, we decline to find that Aetna’s concomitant financial concern amounts to bad faith or malice which would deny it New Jersey’s statutory protections.

Finally, it is important to note that the case against appellant was “administratively closed.” There is no evidence that the board based its decision to close its investigation of appellant on the basis of his lack of culpability in the alleged fraudulent billing scheme. It is clear from the record in this matter surrounding the investigation of Dr. Ahmad, that Aetna had reasonable cause to believe that appellant may have been subject to disciplinary action as a result of his alleged fraudulent billing scheme. As such, we found that the privilege set forth in N.J.S.A. 45:1-35 was applicable in this situation. Therefore, we determined that all statements made by appellees during the course of their investigation were subject to the protections afforded by the statutory privilege and that appellees were immune from liability as to Dr. Ahmad’s claims of defamation and intentional interference with present and prospective contractual relationships.

CONCLUSION

For the foregoing reasons, we suggest that the present appeal is without merit and should be dismissed.


author: WILLIAMSON, J.,

text:
    Bridgeman v. Cruz

      Jason R. Ohlinger, for plaintiff.

      Daniel D. Stofko, for defendant.
    May 18, 2012
   WILLIAMSON, J.,

This matter comes before us on a motion for partial summary judgment in a tort liability action filed by Danny Cruz and Maty Rodriguez (hereafter, “defendants”), requesting Alexandra Bridgeman (hereafter, “plaintiff”), be precluded from recovering non-economic damages pursuant to the Motor Vehicle Financial Responsibility Law.

Plaintiff commenced this action by filing a complaint on July 27, 2010, alleging that defendant Cruz was negligent in his operation of defendant Rodriguez’s motor vehicle in that defendant Cruz collided into the rear of a motor vehicle operated by a Ms. Sylvette Hartorth, causing her vehicle to swerve into oncoming traffic into the path of plaintiff’s vehicle. Plaintiff also alleges that defendant Rodriguez negligently entrusted defendant Cruz with the motor vehicle and that defendant Rodriguez knew or should have known that she was creating an appreciable risk of harm to other drivers lawfully using the roadways. On November 4, 2010, defendants filed an answer to plaintiff’s complaint and new matter. Defendants filed a motion for partial summary judgment and a brief in support on March 9, 2012, requesting this court grant summary judgment on the limited tort threshold since plaintiff failed to show the injury she suffered constituted a “serious” injury, as defined by the Motor Vehicle Financial Responsibility Law. On April 9, 2012, plaintiff filed an answer in opposition to defendants’ motion for partial summary judgment. The matter was placed on the May argument list and both parties appeared before this court on May 7, 2012, to present their respective arguments. After a review of the pleadings, we are now ready to dispose of this matter.

DISCUSSION

Defendants filed a motion for partial summary judgment alleging that plaintiff failed to establish that she is entitled to non-economic damages since her injury does not constitute a “serious” injury as defined by the Motor Vehicle Financial Responsibility Law. Defendants assert that plaintiff only sustained minor injuries and visited with a chiropractor who informed plaintiff “not to overdo it.” Defendants allege that plaintiff’s injuries do not constitute a “serious” injury since she never claimed disability from work, never underwent physical therapy, and never sought treatment other than visiting a chiropractor.

Plaintiff asserts that she suffered a serious impairment in her ability to walk, which lasted for several weeks after the alleged accident and completely limited her ability to perform basic tasks without assistance. During argument, counsel for plaintiff stated that plaintiff could not walk without crutches and required assistance in everyday tasks (such as bathing), for a month after the accident. Moreover, plaintiff states that she still suffers from residual pain and limitations due to her neck pain.

Since defendants are seeking partial summary judgment, we must review the record in the light most favorable to the non-moving party, plaintiff, and all doubts as to the existence of a genuine issue of material fact must be resolved against defendants. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998), citing, Pennsylvania State University v. County of Centre, 532 Pa. 142, 144, 615 A.2d 303, 304 (1992). Summary judgment will only be granted in cases that are free and clear from doubt. Id., citing, Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Accordingly, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact” and the moving party is thus entitled to judgment as a matter of law. Id., quoting, Ertrel v. Patriot-News Co., 544 Pa. 93, 98, 674 A.2d 1038, 1042 (1996).

Pursuant to Section 1705(d) of the Motor Vehicle Financial Responsibility Law,

(d) “Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss...” 75 Pa.C.S.A. § 1075(d).

A serious injury is defined as a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S.A. §1702. Generally, our courts have held that the threshold determination of whether a party qualifies for non-economic damages pursuant to 75 Pa.C.S.A. § 1705(d) is not one that should be made routinely by a trial court judge, but rather should be left to a jury. Washington, at 740. Where “reasonable minds could not differ on the issue of whether a serious injury has been sustained,” however, the trial court may determine that non-economic damages are not appropriate and sustain a summary judgment. Id. Therefore, the ultimate determination of the seriousness of the injury should be left for the jury “in all but the clearest of cases.” Id.

To determine whether reasonable minds would differ as to the severity of the injury, the court in Washington created a two prong inquiry. The trial court must first consider “what body function, if any, was impaired because of the injuries sustained in a motor vehicle accident,” and then second, whether the impairment of the body function is serious. Id., quoting, DiFranco v. Pickard, 398 N.W.2d 896, 901 (Mich. 1986). It is essential, however, that the focus is not on the injuries themselves, “but on how the injuries affected a particular body function.” Id. Finally, the court outlined the following factors to be considered: “the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Id.

Two prominent Superior Court cases can be used to establish the difference between a serious injury and a minor injury. In Furman v. Shapiro, the plaintiff was injured in a motor vehicle accident and was subsequently diagnosed with bulging discs, which was determined to be a permanent condition by her physician. 721 A.2d 1125, 1127 (Pa. Super. 1997). At the time of the plaintiff’s deposition, which was taken three years after the accident, the plaintiff stated that she still had problems walking, that her pain continued to persist and that she had to limit her work as a manicurist from full-time to part-time because she is unable to sit in one position for an extended period of time. Id. Furthermore, the plaintiff stated that she underwent physical therapy and performed home exercises to help alleviate the pain. Id. Based on these statements, the Furman Court determined that the plaintiff could have suffered a serious injury and the issue of whether the plaintiff was entitled to non-economic damages was a question for the jury to decide.

In McGee v. Muldowney, the court upheld the defendant’s motion for summary judgment since it was not satisfied that reasonable minds could differ as to the severity of the injury, 750 A.2d 912, 914 (Pa. Super. 2000). In McGee, the evidence established that the plaintiff went to the emergency room after the accident, was diagnosed with a cervical strain and cervical sprain, and was discharged with a prescription for Tylenol. Id. The plaintiff followed up with a physician a couple of days later when the pain had not subsided and an x-ray and MRI were conducted, both of which supported the earlier diagnosis of cervical strain and cervical sprain. Id. The plaintiff underwent physical therapy, soughttwo orthopedic evaluations and was examined by an orthopedic surgeon on three separate occasions. Id. During discovery the plaintiff stated that he was able to continue working full-time despite the fact that he had trouble lifting heavier items, but also admitted that his employer was not aware of that inability. Id. Since the plaintiff only sought treatment during the six months following the accident and did not seek any additional medical attention for the next five and one-half years, the McGee court was not satisfied that reasonable minds would differ on the severity of the plaintiff’s injuries. Highlighting the fact that the plaintiff was able to return to full time employment in his trade without restriction and reviewing the plaintiff’s medical history, the court concluded that the plaintiff failed to establish that his injuries resulted in “such substantial interference with any bodily function as to permit a conclusion that the injuries have resulted in a serious impact on his life for an extended period of time.” Id. at 915, consequently, the court held that the plaintiff was unable to establish that he suffered a serious injury such that he would be entitled to non-economic damages.

We find that the case before this court is more similar to that of McGee than Furman. A review of the pleadings and deposition establishes the following facts: At the time of the accident plaintiff worked for a real estate company in the sales department and conducted closings on behalf of the company. After plaintiff’s accident, plaintiff was unable to perform her duties at work for a period of three weeks, after which time, she was able to return to work full time without any restrictions. On the day of the accident plaintiff experienced pain in her left knee, neck and back, and had moderate bum marks on her arm from the deployment of the air bag. Plaintiff was transported to Pocono Medical Center by an ambulance where x-rays were conducted to determine the extent of her injuries. She was discharged from the hospital that same day with painkillers and crutches and was told to continue icing her left knee.

The following three weeks plaintiff was restricted in her movements in that she had to rely on her cmtches to be mobile and she was unable to use stairs or drive a car without experiencing pain in her left knee. Plaintiff received chiropractic treatment from Dr. Epstein, who ordered an MRI test of her neck and knees to be performed on September 22, 2008. Plaintiff had an MRI of her shoulder in November 2008. Plaintiff treated with Dr. Epstein approximately three times a week for a number of weeks and then began treating with Dr. John Miller, since his office was closer to her home. Plaintiff continued to see Dr. Miller three times a week for approximately three to four months. Her chiropractic appointments with both doctors consisted of manipulation and massage-type treatments. Plaintiff never received physical therapy for her injuries and only sought chiropractic relief. All treatment was terminated within four months after the accident.

Plaintiff was never restricted by her physicians as to what type of activities she could participate in and was only told not to “overdo it.” She admits that as of her deposition on December 28,2011 her injuries do not impair her ability to work nor do they limit her ability to participate in daily activities and/or hobbies. Plaintiff attached an undated and unverified copy of plaintiff’s responses to interrogatories to her answer to summary judgment, alleging difficulty doing certain things. However, since she notes none of this in her deposition of December 28, 2011, nor are the responses dated or verified by the plaintiff, the court cannot conclude there are lingering limitations. Nor is there documentation in the record by the plaintiff of any lengthy interruption of daily activities. The unverified and undated response to interrogatories is insufficient for the court to consider in a summary judgment motion.

Plaintiff does not have any outstanding medical bills resulting from this accident, nor any ongoing care. The only residual pain resulting from the accident is neck pain, which plaintiff states impairs her ability to sleep. Plaintiff has not, however, soughtthe advice of aphysicianregarding that problem and is no longer obtaining chiropractic treatments.

Applying the two prong test created in Washington and relying on the discussions in Furman and McGee, we find that reasonable minds will not differ on the severity of plaintiff’s injury and as such, plaintiff is not entitled to seek non-economic damages for her injuries. The first prong of the Washington test requires us to look at the injuries sustained as a result of the accident. Plaintiff asserts she sustained injuries to her left knee, neck and back. Despite x-rays and MRIs, there was no evidence submitted to the record of the medical diagnosis, if any, of these injuries. The second prong asks whether the impairment of her knee, back and neck was serious. Based on the allegations in the pleadings and admissions in her deposition, we conclude that the impairments are not serious and that plaintiff’s injury does not constitute a “serious injury” as defined by the Motor Vehicle Responsibility Law.

Plaintiff’s injuries are similar to those suffered by the plaintiff in McGee. Like the plaintiff in McGee, plaintiff was taken to the emergency room where x-rays were taken and plaintiff was discharged that same day with a prescription for painkillers and crutches to assist her in walking. As was the case in McGee, plaintiff sought additional treatment from a physician, more specifically a chiropractor, when her pain failed to subside. While the plaintiff in McGee visited with orthopedic surgeons, plaintiff only received treatment from a chiropractor and did not seek additional treatment from any other type of physician. There were no records or supporting documentation for the court to consider as to the diagnosis or type of injuries suffered by the plaintiff. Plaintiff was immediately discharged from the hospital after evaluation, and despite x-rays and multiple MRI tests, the plaintiff had limited treatment. Furthermore, plaintiff’s counsel represented to this court during argument that plaintiff held herself out of work because of her reliance on crutches for a period of three weeks. There was no evidence plaintiff was physically unable to work. Plaintiff stated during her deposition that neither Dr. Epstein, nor Dr. Miller, placed restrictions on her ability to work or participate in daily activities, Therefore, the decision to stay out of work was plaintiff’s sole decision and plaintiff was not required to seek approval from her physician before she could return to work. Plaintiff testified in her deposition that as of that date, December 28,2011, there were no limitations on her daily activities. There was no other verified documentation that plaintiff suffered a loss of daily activities for any lengthy time period.

Consequently, we find that reasonable minds would not differ on the severity of plaintiff’s injuries and sustain defendants’ motion for summary judgment. Accordingly, plaintiff is precluded from seeking non-economic damages.

ORDER

And now, this May 18, 2012, the defendants’ motion for partial summary judgment is granted.

Plaintiff is precluded from seeking non-economic damages.

      . Prior to the creation of the two prong analysis in Washington, our Superior Court noted that the issue is not whether the individual experiences pain, but whether “there has been a serious impairment in her functioning as a result of the pain.” Murray v. McCann, 658 A.2d 404, 408 (Pa. Super. 1995).

      . We recognize that the plaintiff in McGee was not provided crutches but we are not satisfied that plaintiff’s reliance on her crutches increases the severity of her injury to a significant degree since plaintiff has failed to present any evidence that she was ordered to use those crutches for a determinable period of time.


author: TUNNELL, J.,

text:
    Pennypacker v. Chester Co. Bd. of Assessment Appeals

      Steven M. Romano, for appellant.

      Jeffrey M. Sommer, for appellee Chester County Board of Assessment Appeals.

      Randall C. Shauer, for appellee Tredyffrin/Easttown School District.
    June 6, 2012
   TUNNELL, J.,

Barry L. Pennpacker has appealed the interim assessment increasing the assessed value of his property on the ground that it constitutes an illegal spot assessment under the circumstances. The issues he raises are whether the renovation and installation of a media room in an unfinished basement constitutes an improvement such as would allow a reassessment and, if so, was the reassessment in question done in a timely manner.

After a trial de novo on May 17, 2012, and in consideration of the competent and credible evidence presented therein, this court denies the appeal of Barry L. Pennypacker based on the following:

FINDING OF FACT

1. The appellant is Barry L. Pennypacker, the owner of the subject property.

2. The appellees are the Chester County Board of Assessment Appeals and the Tredyffrin/Easttown School District.

3. The property that is the subject of this appeal is located at 1075 South Leopard Road, Berwyn, Easttown Township, Chester County Pennsylvania, Tax ID Parcel 55-4-115.4B.

4. The property consists of 12 acres of land, improved by a two story residential dwelling of 10,000 sq.ft.

5. The property originally was an unimproved lot, owned by P. Theodore Babiy and Anne Marie Quinn.

6. On behalf of the owner, testimony was elicited and certain exhibits were identified by Mr. Babiy.

7. Mr. Babiy is a developer and builder who began improvements on the lot when he obtained a building permit in late October 2007.

8. This building permit, number 14429, was recorded in the computer system by the Chester County Board of Assessments on November 1, 2007.

9. There were no photographs of the basement, as a media room was to be added in the fall of 2010.

10. The property was listed for sale in April of 2010, with Prudential Fox & Roach Realtors.

11. In May of 2010, 30 months after the beginning of construction, the Chester County Assessment Office conducted an interim assessment of the property and set the assessed value of the building at $1,195, 660.

12. Renovation of the basement occurred in the fall of 2010, turning it into a 13 by 35 foot media room.

13. These renovations and additional construction continued on the property between September 2010 and the ultimate sale of the property in January 2011.

14. A certificate of occupancy was issued on January 3,2011.

15. The property was sold to appellant, Barry L. Pennypacker, on January 13, 2011 for $5,300,000.

16. The applicable common level ratio for tax year 2011 is 55.4%.

17. An assessment was undertaken by the Chester County Assessment Office which raised the assessed market value of the property to $2,624,270, equating to a fair market value of $4,736,949.

18. An Assessment Change Notice followed dated February 16,2011. From this, the owner filed an appeal to the Board of Assessment Appeals.

19. At the hearing on May 24,2011, the Chester County Board of Assessment Appeals received into evidence a copy of the owner’s deed to the property, which was probative of its fair market value.

20. Asa result of the hearing, the assessed value of the subject property was further increased from $2,624,270 to $2,936,200.

21. The owner filed an appeal to this court, which conducted a trial de novo on May 17,2012.

22. At trial, the Board of Assessment Appeals called Joseph Firmaren, the Chief Assessor of Chester County, to testify.

23. Mr. Firmaren described the procedure used in doing a 30 month interim assessment, explaining that if the field assessor determined a property was not yet completed, then a partial assessment is made based upon the estimated percentage of completion.

24. After expiration of the 30 month exemption period, a property must, by law, go “on record”, even if only a partial assessment can be made.

25. The Chester County Board of Assessments was notified that a certificate of occupancy was issued for the property on January 3,2011 and subsequently the property was sold.

26. The issuance of the certificate of occupancy and the filing of the deed alerted the Chester County Board of Assessments that the property had been improved and was potentially subject to reassessment.

27. The Chester County Board of Assessment Appeals multiplied the sale price of the property, $5,300,000 by the common level ratio of 55.4% to arrive at an assessment value of $2,936,200.

DISCUSSION

Under Pennsylvania law, all real estate, but for a few specifically enumerated exceptions, are subject to local taxation and shall be valued or assessed at annual rates, 53 Pa. C.S.A §8811. However, new single and multiple dwellings constructed for residential purposes shall not be valued or assessed for purposes of real property taxes until occupied, conveyed to a bona fide purchaser or 30 months from the first day of the month after which the building permit was issued, 53 Pa. C.S.A §8813.

The parties in this present matter do not dispute that the property constructed at 1075 South Leopard Road, Berwyn, Easttown Township, Chester County is owned by appellant for residential purposes and as such subject to valuation, assessment and taxation. Nor do the parties in this matter dispute that construction of the dwelling began in late October of 2007 and was subject to a 30 month tax assessment exemption. A building permit was issued in October of 2007. Upon expiration of the 30 month exemption period, in May of 2010, the property was subjected to an interim tax assessment and an assessed value of $1,532,750 was placed on the property.

Joseph Firmaren testified that, upon the expiration of 30 months, a field assessor makes a site visit and determines the completeness of the property. B ecause this property was not finished and was not occupied, a partial assessment was made as an interim assessment. This partial assessment is based on the field assessor’s knowledge and experience in assigning a percentage of completion to the property and then basing the assessment on that percentage.

Subsequently, a second assessment was conducted on the property in February of 2011 after the property was conveyed to the appellant for $5,300,000. This is the assessment that is contested by the appellant. The crux of appellant’s argument and the issue before this court is whether the renovation and installation of a media room in an unfinished basement as well as other construction completed in the Fall of 2010 constitute improvements to taxpayer’s property such as would allow a reassessment of that property and, if so, was the second assessment conducted in February 2011 close enough temporally to these improvements.

Permitted Reassessments

It is generally acknowledged that once an evaluation has been established for a taxable property, that valuation cannot be altered unless that change is the result of a countywide reassessment. Radeke v. York County Board of Assessment Appeals 798 A.2d 265, 267 (Pa. Cmwlth. 2002), citing Althouse v. Monroe County Board of Assessment Appeals, 159 Pa. Cmwlth. 467, 633 A.2d 1267 (1993). The county assessors “cannot reassess less than an entire county except as correction of errors or as otherwise specifically provided by statute.” Sher v. Berks County Bd. of Assessment Appeals 940 A.2d 629, 633, (Pa Cmwlth. 2008) citing Vees v. Carbon County Board of Assessment Appeals, 867 A.2d 742, 747 (Pa. Cmwlth. 2005). The statute provides:

The assessor may change the assessed valuation on real property when a parcel of land is divided and conveyed away in smaller parcels or when improvements are made to real property or existing improvements are removed from real property or are destroyed. The painting of a building or the normal regular repairs to a building aggregating two thousand five hundred dollars ($2,500) or less in value annually shall not be deemed cause for a change in valuation.” 53 Pa. C.S.A. §8817(a).

See, also, In Re Delphais, 903 A.2d 80, 83 (Pa. Cmwlth. 2006); Cunius v. Board of Assessment Appeals of Chester County, 976 A.2d 635, 638 (Pa. Cmwlth. 2009).

If a statutorily triggering event has not occurred, assessors are prohibited from engaging in what is deemed a “spot reassessment”. Sher, 940 A.2d 629, 633, (Pa. Cmwlth. 2008), citing 53 Pa C.S.A §8843, Radeke v. York County Board of Assessment Appeals 798 A.2d 265, (Pa. Cmwlth. 2002). A spot reassessment is defined as a reassessment of a property or properties that is not conducted as part of a countywide revised reassessment and which creates, sustains or increases disproportionality among properties’ assessed values.” Sher, 940 A.2d 629, 633, (Pa. Cmwlth. 2008), 53 Pa C.S.A §8802.

As there is no evidence on the record regarding the property being subdivided or conveyed away in smaller parcels nor that there was a county-wide assessment, this court will only concern itself with the last method in which a property may be reassessed, and that is after improvements are made upon a property.

Improvements

Our Supreme Court has held that not every bit of work done to change a building constitutes an improvement. “Improvement” has been defined as a “permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinaiy repairs.” Groner v. Monroe Cty. Bd. of Assessment Appeals, 569 Pa. 394, 400, 803 A.2d 1270, 1273, (2002), citing, Spahr-Alder Group v. Zoning Board of Adjustment of Pittsburgh, 135 Pa. Cmwlth. 561, 581 A.2d 1002, 1004 (1990).

In Groner, a preexisting women’s apparel shop was converted into a brokerage office. The conversion included the removal of dressing rooms, storage rooms, counters, carpeting, lighting, shelving and hanging fixtures. In addition, there was rewiring and installation of partition walls to create three offices. The Supreme Court reasoned that even though the renovations exceeded the statutory minimum amount at the time, the renovations did not constitute an improvement to the property. Id at 397.

Groner is distinguishable from the present matter. As stated, not every bit of work done to change a building qualifies; an improvement must constitute a betterment of the property and enhance its capital value. Groner, 569 Pa. 394, 400, 803 A.2d 1270, 1273. Additionally, in accordance with current statutory requirement, the improvement must exceed a minimum monetary requirement of $2,500, 53 Pa. C.S.A. §8817(a). The owner’s brief itself notes that between September 28, 2010 and January 13, 2011, the following construction took place within the property: (1) a custom bar built in the finished area of the lower level; (2) a media room approximately 13 feet by 35 feet was built in the unfinished area of the lower level; (3) a fireplace mantel and paneling; (4) a wall constructed between bedrooms 4 and 5,4. Shelving was installed in the kitchen pantry and coat closets. Brief for appellant, at 3. While not every item on this list can be called an improvement, it is the opinion of this court that the construction of a 13 by 35 foot media room in the basement significantly contributes to the betterment of the property and enhances the overall value of the property. In order to construct a proper media room in an estate home, as the builder called it, of this size and quality, common sense tell us that a sum of money must be expended far in excess of the $2,500 minimum set by statute. It also follows that prospective buyers would open their wallets a little wider in finding that instead of a dark, musty, unfinished cellar, there was a large media room in a finished basement.

Timing of reassessment

The owner also argues that a reassessment due to improvements to realty must take place when the improvements are made and not at some arbitrary time in the future, lest the board engage in spot reassessment. Shenandoah Mobile Co. v. Dauphin County Bd. of Assessment Appeals, 869 A.2d 562, 565 (Pa. Cmwlth. 2005), citing Radeke v. York County Board of Assessment Appeals 798 A.2d 265, 268 (Pa. Cmwlth. 2002).

In the present matter, the developer and builder, Ted Babiy, entered into an agreement for the sale of the property in September of 2010, with a closing to occur on January 13, 2011. Both these dates were before a certificate of occupancy had been issued for the property. Without the certificate of occupancy, the property could not be occupied. In the fall of 2010, various construction occurred on the property, including the addition of a media room in the basement. The issuance of the certificate of occupancy on January 3, 2011 and the requisite filing of a deed to the property after the sale to Pennypacker indicated the property had been improved and completed. Because of this, on or about February 16, 2011, the Assessment Office conducted a full assessment. As this assessment was conducted less than a month after the Assessment Office had notice that improvements had been made to appellant’s property, it cannot be regarded as conducted at an arbitrary time in the future. The court concludes that no spot assessment of Pennypacker’s property occurred.

CONCLUSIONS OF LAW

1. The completion of a large media room in the basement of this house constituted an improvement, subjecting the property to a reassessment.

2. The improvements to the property were made between the interim assessment of May 2010 and the interim assessment of February 2011.

3. The assessment performed in February 2011 was timely.

4. The value of the property as of January 2011 is $5,300,000

5. Application of the respective common level ratios to the actual value yields the following assessed value:

For January 2011 $5,300,000 x 55.4% =$2,936,200

6. The taxing authority did not engage in a spot-reassessment.

7. An appropriate order follows.

ORDER

And now, this June 6, 2012, following a trial de novo in the above captioned matter by the undersigned, sitting without a jury, the appeal of Barry L. Pennypacker of the interim assessment made on the subject property in February of 2011 in the amount of $2,936,200 is denied:


author: NEW, J.,

text:
    Samara v. Dib

      Nino Tinari, for plaintiff.

      Jeff Scatbria and Dennis George, for defendant.
    June 11, 2012
   NEW, J.,

For the reasons that follow, this appeal should be quashed as it has been filed prematurely.

PROCEDURAL AND FACTUAL HISTORY

On February 9, 2011, plaintiff Mohannad Samara (hereinafter “plaintiff’ or “Samara”) filed suit against defendant George Dib, alleging plaintiff and defendant’s conduct formed an oral partnership for ownership in real property. Plaintiff alleged counts in breach of fiduciary duty, accounting of the partnership, dissolution of the partnership, and accounting of the properties. Defendant denied a partnership for real property was created and filed a counterclaim against plaintiff in fraud, unjust enrichment and accounting of rental proceeds in excess of $100,000.

This matter proceeded to a two day, non-jury trial on April 11, 2012. After consideration of the evidence presented at trial, the findings of the court was entered on April 17, 2012.

On April 27, 2012, plaintiff filed a timely post-trial motion. Plaintiff also filed a miscellaneous motion, seeking leave to supplement the post-trial motion that same day. Pursuant to the filing of post-trial motions, the court ordered the moving party, here plaintiff, to submit a brief in support of the post-trial motion by May 29, 2012, and the responding party to submit a response brief by June 18,2012. Oral argument has been scheduled for June 29,2012. On May 29,2012, plaintiff submitted his brief in support of the post-trial motion. The time for defendant to file his response brief has not yet passed. However, before the court ruled on plaintiff’s post-trial motion, Plaintiff filed a notice of appeal to the Superior Court on May 10, 2012.

LEGAL ANALYSIS

Pursuant to the Pennsylvania rules of civil procedure, post-trial motions shall be filed within ten (10) days of the filing of the court’s decision. It is a well established principal of Pennsylvania law that any issue not raised in post-trial motions is waived. Upon the timely filing of a post-trial motion, judgment cannot be entered until the trial court enters an order disposing of the motion or the motion is denied by operation of law one hundred and twenty (120) days after the filing of the motion.

Accordingly, pursuant to Pa. R.C.P. 227.1, a party must file post-trial motions at the conclusion of any type of action to preserve their issues for appeal. In other words, atrial court’s order at the conclusion of trial cannot become final for purposes of filing an appeal until the trial court decides any timely post-trial motions. Further, it is well-established that the “entry of appropriate judgment is a prerequisite to [the Superior] Court’s exercise of jurisdiction.” Thus, an appeal filed while a post-trial motion is pending before the trial court will be considered premature and quashed on appeal.

Instantly, plaintiff filed timely post-trial motions within ten (10) days of receiving notice of the court’s finding after trial. As indicated above, plaintiff has filed his brief in support of the post-trial motion, and defendant, the responding party, has until June 18, 2012 to submit a response brief. Oral argument on this matter has been scheduled for June 29, 2012.

However, before the one hundred and twenty (120) day time period had expired and judgment was entered, plaintiff filed a notice of appeal to the Superior Court. Since plaintiff filed this appeal while the post-trial motion is pending before the court, the instant appeal is premature and should be quashed.

CONCLUSION

For the foregoing reasons, plaintiff’s appeal should be quashed as it has been filed prematurely.

      .The findings of the court stated as follows:
      1. Finding in favor of defendant and against plaintiff on all of plaintiff’s claims.
      2. Finding defendant is the owner in fee simple of the property known as 2722 Germantown Avenue, Philadelphia, PA, BRT No. 372199110.
      3. Pursuant to this finding the Lis Pendens filed is hereby lifted.
      4. Finding in favor of plaintiff and against defendant on defendant’s counterclaim.

      . See Pa. R.C.P. 227.2(c)(2) (indicating post-trial motions shall be filed within ten (10) days after filing of the decision in the case of a trial without jury.).

      . On June 5, 2012, the court granted plaintiff’s motion for leave to supplement the post-trial motion filed on April 27,2012, giving plaintiff the right to supplement his post-trial motion and file a brief in support thereof no later than June 8,2012.

      . See Pa. R.C.P. 227.2(c)(2).

      . See, e.g., Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491 (2002); Estate of Hicks v. Dana Cos., LLC, 2009 Pa. Super. 220, 984 A.2d 943 (Pa. Super. 2009); Lenhart v. Cigna Cos., 2003 Pa. Super. 195, 824 A.2d 1193 (Pa. Super. 2003).

      . See Pa. R.C.P. 227.4; see also Melani v. Nw. Eng’g. Inc., 2006 Pa. Super. 281, 909 A.2d 404 (Pa. Super. 2006).

      . See Chalkey, 569 Pa. at 469, 805 A.2d at 496; see also Melani, 909 A.2d at 404, 2006 Pa. Super. 281, (citing Cerniga v. Mon Valley Speed Boat Club, Inc., 2004 Pa. Super. 444, 862 A.2d 1272 (Pa. Super. 2004)).

      . See Pa. R.C.P. 227.1(a); see also Chalkey, 569 Pa. at 469, 805 A.2d at 496.

      . See id. at 406 (citing Croyle v. Dellape, 2003 Pa. Super. 328, 832 A.2d 466, 470 (Pa. Super. 2003)). The judicial code provides: “[t]he Superior Court shall have exclusive appellate jurisdiction of all appeals from final order of the courts of common pleas....” See 42 Pa. C.S. § 742.

      . See id.

      . There is no indication from the record that plaintiff voluntarily withdrew his post-trial motion.

      . See Melani, 909 A.2d at 406 (Pa. Super. 2006).