author: CHARLES, J.,

text:
    Boehler v. Boehler

      C.P. of Lebanon County,
    No. 2006-20469

      Donna Long Brightbill, for plaintiff.

      Melissa Montgomery, for defendant.

      Wiley Parker, guardian ad litem.
    Nov. 25, 2014
   CHARLES, J.,

— When the whims of children are frequently indulged, they will quickly get the message that “what I want” is most important. When a child’s pique is permitted to prevail over adult rules, the child will be emboldened to employ drama as a tactic to get “what I want.” When children are permitted to stubbornly disobey court-ordered custody schedules, the message conveyed is that “what I want” trumps even the rule of law. Given the above — which we classify as axiomatic to the point of being self-evident — it is imperative that parents do everything possible to prevent children from gaining control over custody disputes. Anything less is a recipe for disaster.

In this case, Jeffrey Boehler (hereafter “father”) enjoys court-ordered custody rights with all three of his sons. Z.B., the oldest boy, refuses to obey the custody schedule.

There are certainly many reasons that underlie Z.B.’s oppositional behavior. However, we conclude that the conduct and attitude of Beth Ann Boehler (hereafter “mother”) has enabled and even engendered Z.B.’s defiance. Therefore, we will be finding mother in contempt of court today. The reasons for this decision will be articulated within the body of this opinion.

I. PROCEDURAL BACKGROUND

This case has a painful and lengthy history. In the past eight years, this court has expended well over a thousand hours of time hearing and analyzing disputes between mother and father. The most contentious of these disputes involve custody of the parties’ three children.

The most recent iteration of the parties’ ongoing battle over custody rights involved a custody modification petition filed by father via which he alleged that mother had embarked on an intentional campaign to cause estrangement between himself and his children. While we gave credence to father’s claim that a campaign of estrangement was employed against him, we retained mother as primary physical custodian due to the good daily care she provided for her children.

The decision we rendered regarding father’s modification petition was appealed to the Pennsylvania Superior Court. While the Superior Court affirmed almost all of our decision, it did ask us to reevaluate the issue of legal custody. We conducted a hearing in May of 2014 to do just that. Following the hearing, we issued an opinion on August 5,2014 that employed unusual relief; we provided mother with primary physical custody and father with primary legal custody. Mother appealed this decision. Her appeal is now pending before the Pennsylvania Superior Court.

On September 18, 2014, father filed a petition for contempt. In his petition, father alleged that he was not able to enjoy the court-ordered time he was awarded with his oldest son, Z.B. A hearing regarding father’s motion for contempt was conducted on November 17, 2014. We issue this opinion in support of our decision to find mother in contempt of court.

II. DISCUSSION RE: CONTEMPT

A. Legal Principles

“Contempt is a generic concept distinguished by two types, criminal and civil contempt. The difference is not of the essence, but of the purpose sought by their use.” Warmkessel v. Heffner, 17 A.3d 408 (Pa. Super. 2011). When the “dominant purpose” of the contempt is to “vindicate the dignity and authority of the court and to protect the interest of the general public,” the contempt is deemed criminal. However, when the act of contempt primarily impacts a private party, proceedings to enforce compliance with the court order are civil in nature. See Stahl v. Redcay, 897 A.2d 478, 486 (Pa. Super. 2006). The remedy imposed in a civil contempt focuses upon compelling compliance with court orders while the focus of a criminal contempt is upon punishment of the contemnor. As noted by our Superior Court:

A civil adjudication of contempt coerces with conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.

Schnabel Assoc. v. Building and Construction Trade Counsel, 487 A.2d 1327, 1332 (Pa. Super. 1995).

Custody orders are enforced via a petition for civil contempt. Brocker v. Brocker, 241 A.2d 336 (Pa. 1968). As such, the purpose of a custody contempt order is remedial; judicial sanctions must either (1) coerce the defendant into compliance with the court’s order, and/or (2) compensate the complainant for losses sustained.” Brocker, supra at 340. In appropriate situations, attorney’s fees and “other disbursements necessitated by the contemnor’s noncompliance” may be awarded as a sanction for contempt. Wood v. Geisenhemer-Shaulis, 827 A.2d 1204, 1207 (Pa. Super. 2003).

In determining whether a party can be found in civil contempt, the focus of the court must be upon whether a court order has been violated. “In civil contempt cases, the complaining party has the burden of proving noncompliance with the court order by a preponderance of evidence.” C.R. by Dunn v. Travelers, 626 A.2d 588, 592 (Pa. Super. 1993). Generally speaking, “each Court is the exclusive judge of contempts against its process.” G.A. v. D.L., 72 A.3d 264, 269 (Pa. Super. 2013), quoting Royal Bank of Pennsylvania v. Selig, 644 A.2d 741, 747 (Pa. Super. 1994).

B. Noncompliance With Court Order

The custody order we entered on August 5, 2014 afforded mother with primaiy physical custody. Father was awarded only partial custody as follows:

(1) Alternating or divided holidays;

(2) Vacation time during the summer;

(3) Alternating weekends; and

(4) Non-overnight time on Wednesdays during the week.

In terms of physical custody, there was no question that most of the children’s time would be spent with their mother in Wrightsville.

Although some problems existed with the parties’ youngest two sons, the primary focus of the contempt petition has been upon Z.B. Everyone, including mother, acknowledges that father did not receive partial custody of Z.B. as called for in the order of court. In fact, father has enjoyed very few overnight periods of custody with Z.B. for months.

While there is consensus among everyone that the court order regarding Z.B. was not followed, there is profound disagreement about who should be responsible for noncompliance with the court order. Mother seeks to deflect responsibility from herself by blaming Z.B. Mother points out that Z.B. is physically larger than she is and that she cannot force him to obey the court order. In return, father points his finger of responsibility at mother. Father views Z.B.’s current intransigence as the logical culmination of mother’s years-long campaign designed to estrange him from Z.B.

C. Etiology of Current Dilemma

It is simply impossible to understand how mother, father and Z.B. have arrived where they are today without at least some knowledge of historical context. Unfortunately, the history of the Boehler custody dispute is as extensive as it is troubling. Recognizing that it would not be practical to recite everything about the history of the parties’ custody battles that may have relevance to what is now before us, we will nevertheless endeavor to summarize some critical themes of the parties’ ongoing custody war:

(1) Father is a passionate man who has at times been challenged with anger governance. When father loses his temper — and unfortunately he has done so with his children — he reacts poorly. While we have always stopped short of declaring father to be an abuser of his children, we cannot ignore problems that father’s anger has caused in his relationship with his own children.
(2) We have appointed independent professionals to work with the children as therapists and/or guardians ad litem. Each of these professionals has communicated that the children are at times afraid of their father. This is not to say that all interaction between father and his children is bad. Far from it. Still, the children are well aware of father’s temper, and are in fear of it.
(3) Mother has a desire to be in complete control of all aspects of custody. When given custody authority, mother has exercised it to the exclusion of father. Even during times when father has been named a joint legal custodian, mother made important decisions without even communicating with father. She has also been found in contempt of court on multiple occasions for failing to afford father with physical custody time he was court-ordered to receive. In our most recent custody decision, we afforded mother with primary physical custody, and we granted father only partial custody rights, mother appealed our physical custody schedule to the Superior Court, calling it “aggressive.” We have absolutely no doubt that if issues pertaining to custody were left totally in the hands of mother, the result would be complete estrangement between father and his children.
(4) In her interpersonal battles, mother’s weapon of choice is manipulation. Rarely does mother seek direct confrontation; she prefers to subtly influence events by appearing sincere while employing hyperbole. In prior opinions, we have extensively chronicled mother’s use of manipulative tactics to create estrangement between her children and father. We have learned that when it comes to issues involving custody, we cannot take mother’s statements at face value.

For years, mother promoted a culture of mistrust between father and the children.

Unfortunately, father in some ways ratified the mistrust instilled in the children by mother through his outbursts of anger. Now, both parties are reaping what they have sown in the form of oppositional and defiant behavior by Z.B. No one should be surprised by Z.B.’s intransigence.

D. Mother’s Role In Violation of Court Order

Understanding the etiology of Z.B.’s behavior does not excuse it. . . nor does it depreciate the role that mother played in leading Z.B. over the precipice of defiance. For multiple reasons, we can and will link mother to Z.B.’s defiant behavior. The reasons for this decision include the following:

(1) To our knowledge, father’s interactions with Z.B. have not involved physicality since the tragic incident that occurred during a custody exchange in Manheim in February of 2012. Despite father’s very clear effort to avoid physical confrontation with his son, mother has continued in court to paint father as a child abuser. We have little doubt that she has also promoted this myth to her children in the privacy of their own home.
(2) Mother’s reaction to what happened in Manheim provided Z.B. with several unfortunate object lessons. First, mother’s obstinate refusal to even consider Z.B.’s conduct as misbehavior probably served to ratify that conduct in Z.B.’s own mind. Second, mother’s unwillingness to punish Z.B. for his role in creating the Manheim disaster reinforced to Z.B. that he could violate a custody order without fear of consequence. Finally, mother’s willingness to blame father completely for the incident and her subsequent use of the incident to completely cut off all custody rights effectively ratified Z.B. intransigence and taught Z.B. that father has no authority over him.
(3) As documented extensively in our opinion dated May 15, 2013, mother employed a campaign over many years designed to estrange father from his children. In that campaign, she employed hyperbole and stoked largely irrational fears. By exaggerating events to the point of fabrication, she used the court system to prevent any contact between father and his children for six months. By her words and actions, mother conveyed to the children that father is a violent man who cannot be trusted.
(4) Mother has always been an apologist for her children. We will never forget mother’s histrionic reaction when a witness during a prior custody trial articulated an observation that was to this jurist self-evident — that Z.B. was partially at fault in causing the Manheim incident. Even during the most recent contempt hearing, mother repeatedly expressed how punishment imposed on Z.B. was “so hard on him.” We do not doubt the love and empathy that mother has for her son, but we do question whether mother has the ability to impose discipline and tough love when needed.
(5) Z.B.’s defiance did not manifest itself overnight. The parties saw it coming. At several points in time, the parties discussed consequences that could be imposed if or when Z.B. refused to visit with his father. Instead, mother did not always follow through in withholding privileges from Z.B. When privileges were withheld, mother blamed father. In fact, at one point mother proclaimed her disagreement with suggested consequences and stated: “Z.B. knows it [the consequences] is coming from you and I do not agree with it.”
(6) Even up to this day, mother refuses to inconvenience herself in order to ensure that father gets to see his son. At one point when Z.B. was being recalcitrant, father asked mother to drive Z.B. to Lebanon. At another point, father asked mother to bring Z.B. to an early Thanksgiving meal that father had prepared for the children. Mother responded that driving to Lebanon was “too far.”

It is clear that the parties have lost control of their son Z.B. It is also very clear to us that mother’s negative conditioning and indulgent parenting has played a primary role in this loss of control. Mother’s long standing animosity toward father, her years long campaign of estrangement, her consistent unwillingness to involve father in his children’s lives, her historical habit of blaming father for all issues of concern, and her more recent unwillingness to impose and follow through with meaningful sanctions for Z.B.’s behavior, have combined to create the environment that engendered Z.B.’s overt defiance. In our opinion, mother’s long term and short term behavior has been willful and it directly led to the loss by father of physical custody rights to which he was entitled under our order of court. Accordingly, a finding of contempt is both necessary and appropriate.

III. REMEDY

Having decided that mother can be found in contempt of court as a result of Z.B.’s decision not to obey our custody order, we are left to craft an appropriate remedy. Recognizing that civil custody contempt proceedings are remedial, our primary goal must be to craft a remedy that will encourage compliance with the existing custody order. On the other hand, we recognize that crafting a toothless contempt order would probably embolden Z.B. and mother even more than doing nothing at all.

As with most civil contempt orders, we will be providing mother with an opportunity to purge herself of contempt. We do so with the following preconditions:

(1) By requiring that mother cooperate with father’s choice for reunification counseling and by requiring that mother provide all transportation requested by father in order to effectuate Z.B.’s attendance at counseling.
(2) After a brief “lead-in” period, the existing custody order will have to be followed by Z.B. Mother will have to double and triple her efforts to ensure that this occurs or else be subject to sanctions that we will address in more detail below. The “lead-in” period of time will encompass the next six weeks. During this six week period of time, father shall be entitled to all holiday periods of custody with Z.B. (including holiday overnights), one weekend including overnights with Z.B. and his normal Wednesday night periods of partial custody with Z.B. Starting after January 1,2015, father shall be entitled to enjoy all of the custody rights with Z.B. provided for in the court order.
(3) At some point during the next six weeks, we will ask GAL Parker to undertake a private dinner meeting with Z.B. Mother is to facilitate and pay for this dinner. At this meeting, GAL Parker is to communicate bluntly and with as much force as needed that Z.B. will not be permitted to drive the ship of custody. Attorney Parker may also communicate the nature of consequences that could be imposed if the custody order is not followed.

The above represents the remedial aspects of the contempt order we will be entering today. We wish to emphasize to everyone that if all of the remedial aspects of our order are fulfilled over the next twelve months, mother’s contempt finding will be purged and no sanctions will be imposed against her at all.

On the other hand, if mother does not fulfill the remedial provisions of our court order, father will be at liberty to request a sentencing hearing. If at that sentencing hearing we determine that mother has not in fact fulfilled the remedial aspects of our order, we shall impose consequential sanctions. Those consequential sanctions will include payment by mother of all of father’s counsel fees that have been incurred relative to this contempt proceeding and will be incurred in the future. We estimate that those fees will exceed $2,000.00. In addition, we would consider a request for additional sanctions. Those additional sanctions could include a fine, a brief period of incarceration, or even an order that would specifically require that privileges be withheld from Z.B. Other than counsel fees, we make no promises today about what our ultimate sanctions will include. Such a decision will be deferred pending the sentencing hearing outlined above.

A court order to effectuate the remedies and findings referenced above will be entered today’s date.

ORDER OF COURT

And now, this 25th day of November, 2014, after hearing and in consideration of the testimony adduced, the court determines that Beth Ann Boehler (hereafter “mother”) is in contempt of court because Jeffrey J. Boehler (hereafter “father”) has not enjoyed physical custody time with his son Z.B. that is required by the existing custody order, mother may purge herself of contempt by complying over the next twelve months with the following:

1. By respecting father’s decision regarding reunification counseling and cooperating with it as required;

2. By providing all transportation for reunification counseling that is requested of her by father;

3. Over the next six weeks, by ensuring that Z.B. attends all required holiday periods of physical custody, by ensuring that Z.B. attends one weekend period of physical custody and by ensuring that Z.B. attends all Wednesday evening periods of physical custody;

4. Commencing after January 1,2015, by ensuring that the existing custody order is followed in all respects; and

5. By ensuring that Z.B. attends a dinner meeting with GAL Wiley Parker to be scheduled in December of 2014.

In the event that mother does not purge herself of contempt by completing the above, father is granted leave to request a sentencing hearing. If after that sentencing hearing we determine that mother has not in fact purged herself of contempt, we will impose sanctions that will include a requirement that mother pay father’s counsel fees and may include other consequences as well.

As additional directives ancillary to the above, this court directs as follows:

1. GAL Wiley Parker shall meet with Z.B. for a private dinner meeting to be conducted at attorney Parker’s convenience during December of 2014. Attorney Parker is to engage in a blunt discussion with Z.B. about the requirements of the custody order and the consequences that could flow from violating that custody order.

2. Although a specific directive is not needed given father’s status as primary legal custodian, we nevertheless wish to specifically authorize father to hire a reunification counselor of his own choosing. It shall not be necessary for father to obtain mother’s consent with respect to the identity of a reunification counselor.

      . Because he is still a minor and because we will be referencing him with sometimes less than flattering language, we will refer to the parties’ eldest son by his initials rather than his full name.

      . In particular, our 81 page opinion of May 15, 2013 provides critical background information. To the extent necessary, everything we wrote in that opinion is incorporated by reference.

      . This is only one example of mother’s campaign of estrangement. In our opinion of May 15, 2013, we used 10 pages to outline mother’s campaign. To fully understand what mother did, one must read pages 22 through 32 of our May 15, 2013 opinion.

      . Father’s employment leaves him with a schedule that is far less flexible than that of mother. We anticipate that the reunification counselor will want to meet with Z.B. alone, at least on some occasions. As a practical matter, it will be easier for mother to accomplish transportation for Z.B.’s counseling than it would be to expect father to be able to leave his employment in Lebanon, drive to York and then to the counselor. At some point in the future when father and Z.B. participate jointly in counseling, we urge father to consider undertaking some of the transportation himself. Alone time in a car with a child can provide a precious bonding opportunity. Father could use time driving Z.B. away from counseling sessions to “debrief’ with Z.B. as well. With the above being said, we are imposing responsibility upon mother to get Z.B. to counseling, wherever that counseling may occur. If father provides transportation, that is his choice. Our court order imposes primaiy responsibility for transportation upon mother.

      . The “lead-in” period of time is designed because father and Z.B. have not had overnight time with one another very often over the past several months. More important, we want to afford time for reunification counseling to begin and we want to afford both mother and GAL Parker with time to meet with Z.B. and have blunt discussions with him.


source: Caselaw Access Project

license: Public Domain

text:
    Heichel v Smith Paving and Construction Co.

      C.P. of Lawrence County,
    No. 10057 of 2010

      Douglas J. Olcott, for plaintiffs.

      Rhonda J. Sudina, for Defendant Smith Paving and Construction, a/kfa Smith Paving & Construction Company.

      Jennifer M. Swistak, for Defendant Grubb & Ellis Management Services, Inc.
    Dec. 22, 2014
   COX, /.,

— In the instant matter, the plaintiffs Patricia Heichel and Gerald Heichel have filed a timely notice of appeal on November 12, 2014, arising from the court’s orders dated October 15, 2014, and November 12, 2014, in which the court granted the defendants’ motion for summary judgment and denied the plaintiffs’ motion for reconsideration. The court issued an order requiring the plaintiffs to file, a concise statement of errors complained of on appeal dated November 14,2014. On December 4,2014, the plaintiffs filed plaintiffs ’ concise statement of matters [szc] complained of on appeal, which first asserts the court committed the following errors in granting the defendants’ motion for summary judgment:

1. The court erred in deciding genuine issues of material fact regarding the condition of the property and the cause of Patricia Heichel’s injury;
2. The court erred in concluding as a matter of law that plaintiffs’ evidence was insufficient to establish that the icy condition of the parking lot was the legal cause of her injury; and
3. The court erred in its application of the hills and ridges doctrine in a case where the evidence was sufficient to establish that a dangerous man-made condition arising out of the maintenance or character of the property substantially increased the risk of injury and was the ultimate cause of Patricia Heichel’s fall and resulting in severe head injuiy.

The plaintiffs also contend that the court committed the following errors in denying the plaintiffs’ motion for reconsideration:

1. The court abused its discretion in failing to grant reconsideration when the plaintiffs presented sufficient additional evidence, including medical records, confirming that her fall occurred in the location and in the manner alleged in the pleadings and as plainly demonstrated by the previously supplied video evidence;
2. The court abused its discretion in erroneously deciding genuine issues of material fact regarding the condition of the property and the cause of Patricia Heichel’s injury;
3. The court abused its discretion in failing to grant reconsideration when it misapplied controlling case law and erroneously held that the hills and ridges doctrine barred the plaintiffs’ claim; and
4. The court abused its discretion in failing to grant reconsideration where controlling case law renders the evidence presented by the plaintiff sufficient to raise a genuine issue of material fact requiring jury resolution.

Defendant Grubb & Ellis is the property manager for the Liberty Mutual Building which is located at 2501 Wilmington Road, New Castle, Lawrence County, Pennsylvania. Liberty Mutual entered into a contract with defendant Smith Paving for snow removal on the Liberty Mutual premises for the 2007 through 2008 winter. Defendant Smith Paving’s main responsibilities pursuant to the contract were to remove snow and ice from the parking lot and walkway area.

On February 12, 2008, defendant Smith Paving provided continuous snow removal services to the Liberty Mutual premises commencing at 4:00 a.m. to midnight. There was a total charge for 20 hours of continuous service on that date for an amount of $11,800.00. The service included 20 hours of plow truck service, 80 tons of salt, 20 hours of backhoe service, 5 hours of plow truck service, 10 hours of labor on the sidewalks and 60 bags of calcium. On that date, the New Castle area received six to ten inches of snow that changed to ice and freezing rain. There were no complaints made to defendant Smith Paving or defendant Grubb & Ellis that there was ice or snow on the Liberty Mutual parking lot or sidewalks. On that date, Patricia Heichel was leaving work and traversing the parking lot on the Liberty Mutual premises on her way to her vehicle when she fell. Mrs. Heichel failed to explain whether the parking lot, encompassing the immediate area of her fall, was covered with snow or ice nor could she recall many details from that incident, which included the type of shoes she was wearing or the time when the fall occurred. She also does not recall the cause of her fall. Lori Thorman, Mrs. Heichel’s co-worker, responded to the report that Mrs. Heichel fell. Ms. Thorman testified that she had to walk “very cautiously and it was slippery” in the general area of the walkways and parking lot. She recounted that she had to hold onto the security guard and was taking small steps when walking on that area. Ms. Thorman explained that the parking lot was slippery but did not describe whether there was ice or snow in that area. It must be noted that Ms. Thorman was walking on the parking lot after Mrs. Heichel fell. There is no other testimony stating that the parking lot or walkways were covered with snow and ice at the time of Mrs. HeichePs fall. The plaintiffs originally presented black and white photographs derived from Liberty Mutual’s surveillance cameras that depicted the condition of the parking lot and the area where Mrs. Heichel fell. However, those photographs were taken from a distance that makes it difficult to decipher the condition of the parking lot.

As a result of that incident, the plaintiffs filed suit on January 13, 2010, asserting claims of negligence against defendant Smith Paving and defendant Grubb & Ellis. Gerald Heichel asserted a claim for loss of consortium against the defendants. On March 29, 2010, defendant Smith Paving filed an answer, new matter and crossclaim pursuant to Pa.R.C.P. No. 1031.1, in which it contends that it is entitled to contribution or indemnity from defendant Grubb & Ellis, if defendant Smith Paving is found to be liable in this case. On April 29, 2010, defendant Grubb & Ellis filed its answer, new matter and crossclaim pursuant to Pa.R.C.P. No. 1031.1, asserting it is a third party beneficiary of the contract between Liberty Mutual and defendant Smith Paving and it is entitled to contribution or indemnity from defendant Smith Paving if it is found to be liable in the current matter. On May 10, 2010, defendant Smith Paving filed a reply to defendant Grubb & Ellis’ crossclaim, and defendant Grubb & Ellis filed its reply to defendant Smith Paving’s crossclaim. On March 17, 2014, defendant Smith Paving filed its motion for summary judgment. Defendant Grubb & Ellis also filed a motion for summary judgment on March 26, 2014. Both motions for summary judgment argued that the plaintiffs failed to establish a prima facie case for negligence as they are unable to establish the cause of Patricia Heichel’s fall nor are they able to demonstrate that the snow or ice accumulated in ridges or elevations of such size to unreasonably obstruct travel and created a dangerous condition. Defendant Grubb & Ellis also asserted that it is entitled to summary judgment on its crossclaim as it is a third party beneficiary of the contract between defendant Smith Paving and Liberty Mutual in which defendant Smith Paving agreed to indemnify defendant Grubb & Ellis for liabilities arising out of defendant Smith Paving’s performance of snow removal on the premises in question. The court granted the defendants’ motions for summary judgment and it dismissed the plaintiffs’ complaint on October 15,2014. As such, the court did not address the motions for summary judgment concerning the defendants’ crossclaims. The plaintiffs then filed a motion for reconsideration on October 28,2014, in which it provided the court with several documents the court did not have access to when deciding the motions for summary judgment which included the Noga Ambulance Incident Report, the Emergency Room Report from Jameson Memorial Hospital and higher quality photographs that more clearly depicted the condition of the parking lot. On November 12, 2014, the court denied the plaintiffs’ motion for reconsideration. In response, the plaintiffs filed their notice of appeal on the same date. The plaintiffs have timely filed plaintiffs’ concise statement of matters [.szc] complained of on appeal.

The plaintiffs contend that the court erred in its orders dated October 15, 2014, and November 12, 2014, by deciding genuine issues of material fact regarding the condition of the property that caused Patricia Heichel to fall and injure herself and in concluding as a matter of law that plaintiffs’ evidence was insufficient to establish that the icy condition of the parking lot was the legal cause of her injury.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law 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 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. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000).

The non-moving party must adduce sufficient evidence on issues essential to his case 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 entitled to judgment as amatter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996). The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspapers, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H & R Block, 761 A.2d 1115 (Pa. Super. 2001). Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

“[T]he mere happening of an accident or an injury does not establish negligence nor raise an inference or a presumption of negligence nor make out a prima facie case of negligence.” Amon v. Shemaka, 419 Pa. 314, 317, 214 A.2d 238, 240 (1965) (citing Steiner v. Pittsburgh Railways, Co., 415 Pa. 549, 204 A.2d 254 (1964). “Although a jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but must have evidence upon which logically its conclusion may be based, circumstantial evidence may be adequate to prove a plaintiff’s case.” Deaver v. Miller, 260 Pa. Super. 173, 177-178, 393 A.2d 1209, 1211 (1978). In order to establish a claim for negligence, a plaintiff must prove the following elements: “(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.” Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1126 (Pa. Super. 2004) (citing Burman v. Golay & Co., Inc., 420 Pa. Super. 209, 616 A.2d 657 (1992)). Under Pennsylvania law, a plaintiff must establish that the defendant’s action was a substantial factor in bringing about the harm incurred. Mahon v. W.C.A.B. (Expert Window Cleaning and State Workers’ Insurance Fund), 835 A.2d 420, 428 (Pa. Cmwlth. 2003) (citing Smith v. Philadelphia Transportation Co., 202 Pa. Super. 278, 195 A.2d 168, 170 (1963)). It is insufficient to prove the mere occurrence of an injury as the plaintiff must prove a causal connection between the defendant’s conduct and the injury. MIIX Insurance Co. v. Epstein, 937 A.2d 469, 474 (Pa. Super. 2007) (quoting Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (1978)). It is important to note that determining causation is an issue for the jury to decide, unless the evidence is such that reasonable people cannot disagree. Kirschner v. K & L Gates LLP, 46 A.3d 737, 754 (Pa. Super. 2012) (citing Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 521 A.2d 451, 455 (1987)). A property owner has no duty to keep his or her property free from snow and ice at all times, and must only act within a reasonable time after notice to remove it when it creates a dangerous condition. Whitton v. H. A. Gable Co., 331 Pa. 429, 431, 200 A. 644, 645 (1938) (citations omitted). “There is no liability created by a general slippery condition on sidewalks.” Id.

In Izzo v. Meyer, 259 Pa. Super. 95, 393 A.2d 733 (1978), the court addressed whether the trial court was correct in granting a compulsory non-suit against the appellant for lack of evidence concerning a slip and fall caused by icy conditions of sidewalks providing access to a pizza shop. The appellant filed suit because he was injured after falling on an icy sidewalk in front of the appellee’s pizza shop. The appellant also joined the Borough of New Brighton and the owner of the building that housed the pizza shop. He claimed the appellees were liable for his injuries due to an accumulation of thick, lumpy ice that occurred on the sidewalks providing access to the pizza shop. At trial, the appellant presented his testimony and the testimony of another individual concerning the condition of the sidewalk. He then rested and the appellees moved for a compulsory non-suit. The appellant requested to reopen his case, which was denied by the trial court. In addition, the trial court granted the compulsory non-suit. The appellant then moved to set aside the compulsory non-suit, which was denied by the court en banc. He then filed an appeal with the Superior Court of Pennsylvania.

The Izzo Court noted that the appellant testified that the sidewalk in front of the pizza shop was clear, but the other portions of the sidewalk were covered with thick, lumpy ice. He also testified that the ice was in patches. The appellant stated that he slipped and fell on an icy portion of the sidewalk while walking to his vehicle. The appellant’s witness stated that she found the appellant on the ground lying by a parking meter and the condition of the sidewalk underneath the appellant was icy and slippery. She also explained that the only portion of the sidewalk that was cleared of ice was in front of the pizza shop. The Izzo Court stated, “To grant a compulsory non-suit in a negligence case, the evidence must be so conclusive as to exclude the reasonable probability of inference otherwise.” Izzo, 259 Pa. Super, at 102, 393 A.2d at 737. The court then reasoned that the testimony presented at trial created a reasonable inference that the appellant’s fall was caused by lumpy, ridged ice as the appellant testified that he slipped on the icy portion of the sidewalk. Id. The Izzo Court further stated, “This clearly creates the inference that he slipped because of the ridged ice. In addition, the appellant’s witness testified that when she helped appellant from the ground, the ice around him was rough.” Id. Therefore, the court reversed the trial court by ruling that the testimony was sufficient to require its submission to a jury. Id.

In the case sub judice, defendant Smith Paving provided 20 hours of continuous snow removal services for the Liberty Mutual premises on the date of Februaiy 12,2008, because the New Castle area received approximately six to ten inches of snow that changed to freezing rain. Mrs. Heichel, who is an employee of Liberty Mutual, was traversing the parking lot when she fell. She is unable to recall many details of the incident, including the condition of the parking lot, and does not know what caused her to fall. The plaintiffs have also presented the testimony of Lori Thorman, Mrs. Heichel’s co-worker, who stated that she had to walk “veiy cautiously and it was slippery” in the general location where Mrs. Heichel fell. Ms. Thorman testified that the weather conditions just changed from snow to freezing rain and the parking lot was a sheet of ice. However, the plaintiffs have failed to provide any testimony concerning the conditions of the specific area where Mrs. Heichel fell or how she fell. Attached to their motion for reconsideration, the plaintiffs provided the court with medical records from Noga Amublance Service and Emergency Room Records from Jameson Memorial Hospital that indicate Mrs. Heichel was injured by slipping on ice while walking on the Liberty Mutual Parking Lot. The Noga Ambulance Incident Report stated that the parking lot was extremely slippery due to the weather conditions and ongoing snow removal, which appeared to be observations made by the ambulance personnel concerning the general condition of the parking lot. The Ambulance Incident Report also explained that Mrs. Heichel indicated that she fell on ice. The plaintiffs provided the court with pictures captured on Liberty Mutual’s surveillance cameras in an attempt to demonstrate the condition of the parking lot, but no other testimony concerning the condition of the parking lot or the walkway. Those pictures, which appear to demonstrate that the snow and ice were properly removed from the Liberty Mutual premises, are taken from a distance and are difficult to decipher. It must be noted that the plaintiffs presented the court with higher quality pictures attached to their motion for reconsideration; however, those pictures illustrate that there were generally slippery conditions in the area and do not demonstrate the condition of the parking lot in the exact area where Mrs. Heichel fell. The court has the discretion whether to consider additional evidence when deciding a motion for reconsideration. West Pottsgrove Two. v. Moyer, 2010 WL 9519343 (Pa. Cmwlth. 2010). The court has decided not to consider that evidence because the plaintiffs had the evidence in their possession when they responded to the defendants’ motions for summary judgment and they failed to present the same when they were required to in response to the motion for summary judgment. Hence, it was not newly acquired evidence and the court did not consider it when it decided the plaintiffs’ motion for reconsideration.

The plaintiffs also presented the report of John A. Allin, who they held to be an expert in the field of snow removal. Mr. Allin derived his opinion from reviewing the various court filings, responses to discovery, depositions and the weather data for February 7 through February 12, 2008. Mr. Allin stated that defendant Smith Paving’s lead engineer at the Liberty Mutual premises, John Ruffley, was unaware of the endothermic properties of rock salt and the exothermic properties of calcium chloride, and he did not know the proper use and rate of application of those products. Mr. Allin opined that the parking lot and walkways should have been inspected more regularly than they were on the date in question as there were inclement weather conditions and caution signs should have been placed on those areas to warn of the slippery conditions. He also opined that defendant Smith Paving failed to meet the generally accepted practices “with regards to the proper utilization of appropriate deicing material on the walkway areas resulting in the treacherous conditions which lead to the unfortunate circumstances which caused Ms. Patricia Heichel to slip, fall and be injured”. However, Mr. Allin did not have a firsthand account of the conditions of the Liberty Mutual parking lot and based his opinions upon the testimony of other individuals and documents nor could he direct his opinion to the specific area of the fall.

The plaintiffs have failed to present the court with adequate evidence to demonstrate that Mrs. Heichel’s fall was caused by icy conditions on the Liberty Mutual premises. The only firsthand testimony that indicates that the parking lot or walkway was icy was provided by Ms. Thorman, who stated that she had to hold onto the security guard while walking toward Mrs. Heichel because it was slippery. She further stated that the entire parking lot was a sheet of ice due to a sudden change in the weather conditions, but she failed to explain the condition of the location where Mrs. Heichel fell. It is important to note that Ms. Thorman’s testimony is in regards to the general slippery conditions caused by the inclement weather and does not relay the conditions of the specific location where Mrs. Heichel fell. Ms. Thorman went to the parking lot after Mrs. Heichel had fallen, so she is unable to speak to the conditions of the parking lot at the time of the fall. Further, the defendants cannot be responsible for a sudden change in the weather when defendant Smith Paving was already performing constant snow removal services. Moreover, Mrs. Heichel cannot recall many details of the incident, including the cause of her fall or the condition of the parking lot and walkway. Unlike Izzo, where the appellant and his witness explained the exact condition of the sidewalk at the time of the fall, including that the area in front of the pizza shop was clear and the remaining sidewalk was covered with patches of thick, lumpy ice, there is no testimony to explain the condition of the Liberty Mutual parking lot at the time Mrs. Heichel fell. The testimony in Izzo allows for the reasonable inference that the icy condition of the sidewalk caused the appellant’s fall. In the current matter, there is no testimony concerning the condition of the walkway and parking lot in the area where Mrs. Heichel fell to give rise to a reasonable inference that the icy condition of the Liberty Mutual premises was due to any negligence by or improper procedure utilized by defendant Smith Paving which resulted in Mrs. Heichel’s fall. In addition, there is no testimony that ice or snow accumulated in thick, lumpy patches as was the case in Izzo. The only testimony concerning the condition of the parking lot indicates that there may have been generally slippery conditions throughout the entire area and there is no testimony that the ice accumulated in the particular area where Mrs. Heichel fell. The plaintiffs also assert that the expert report of Mr. Allin provides circumstantial evidence that the portion of the Liberty Mutual parking lot where Mrs. Heichel fell was slippery due to the accumulation of snow or ice. His report appears to be based upon the assumption that the parking lot was slippery as evidenced by Mrs. HeicheTs fall based upon the weather conditions and the aforementioned testimony. He also opines that Mr. Ruffley did not understand the properties of the rock salt and calcium chloride being used in the snow removal at Liberty Mutual and it caused defendant Smith Paving to utilize those chemicals incorrectly. However, he did not personally inspect the parking lot nor the area where Mrs. Heichel fell and there is no evidence concerning the slippery condition of the location where Mrs. Heichel fell beyond testimony of generally slippery conditions or indications that there was an accumulation of snow in the New Castle area on the day in question.

The plaintiffs also cited to this court’s opinion in Kendall v. Perkins Restaurants, Inc., et al., 10010 of 2005, C.R. (Pa. Com. Pl. Lawrence 2005), in which the plaintiff was injured when he slipped on a patch of black ice in a parking lot. In that case, the owner of a shopping center contracted with a snow removal company to provide snow removal services to a parking lot. The snow removal company spread approximately four to five tons of salt in the parking lot at 6:00 a.m. and returned later to inspect the condition of the parking lot. It was noted that there were still patches of ice on the parking lot, but the parking lot appeared to be clear and wet. The plaintiff then attempted to exit his vehicle and walked towards a restaurant when he slipped on a patch of black ice and fell. He and his wife both characterized the area where the plaintiff fell as containing a patch of smooth ice. The plaintiffs filed suit averring negligent snow and ice removal by the defendant. The plaintiffs also provided expert testimony stating that improper salting of the parking lot and clearing of ice led to an unnatural formation of ice.

In Kendall, this court noted that ice caused by improper snow removal or salting procedures are unnatural accumulations of ice and is not grounds for the imposition of the hills and ridges doctrine. Id. (citing Harvey v. Rouse Chamberlin, Ltd., 901 A.2d 523 (Pa. Super. 2006); Liggett v. Pennsylvania’s Northern Lights Shoppers City Inc., 75 Pa. D & C 4th 322, 327-328 (2005)). There was evidence and expert testimony that the patch of ice described by the plaintiff and his wife in Kendall was caused by improper snow abatement procedures and salting. Id. Hence, this court determined that the hills and ridges doctrine did not apply in that case and there was a question of material fact as to whether there was an unnatural accumulation of ice and the defendants were not entitled to summary judgment based upon the hills and ridges doctrine.

However, this matter is distinguishable from Kendall as the plaintiff in that case presented testimony from himself and his wife that he slipped on an isolated patch of ice that they described as smooth. In addition, the plaintiffs provided expert testimony that the defendant utilized improper snow and ice removal procedures that caused the patch of ice. The defendants also failed to constantly inspect and remove the ice throughout the day in Kendall as the only snow removal activities on that date occurred at 6:00 a.m., even though there were reports that there were still patches of ice located in that parking lot. In the current case, the plaintiff has failed to provide any of that evidence, except for an expert report. There is no testimony regarding whether Mrs. Heichel fell on a patch of ice. In fact, the testimony demonstrates that there were generally slippery conditions in the Liberty Mutual parking lot caused by a sudden change in the weather from snow to freezing rain. Furthermore, defendant Smith Paving performed constant snow removal services to the Liberty Mutual parking lot for a 20 hour period, which is distinguishable from the one instance of snow removal and salting in Kendall. Therefore, the plaintiffs have failed to establish a prima facie case for negligence as they are unable to establish the cause of Mrs. Heichel’s fall.

The plaintiffs also argue that the court erred in its application of the hills and ridges doctrine in this case as the evidence was sufficient to establish that a dangerous man-made condition substantially increased the risk of injury caused Mrs. HeichePs fall. However, this is a misinterpretation of the court’s order and opinion dated October 15, 2014, as the court did not apply the hills and ridges doctrine to the current case. The court applied general negligence standards and case law to determine that there was a lack of causation between the condition of the parking lot and Mrs. HeicheTs fall. The court also noted the continuous efforts to remove snow and ice, the general slippery conditions created by a sudden change in the weather and the lack of direct testimony that Mrs. Heichel fell on a patch of ice that prevented her from safely traversing the parking lot which was created by negligent snow removal. It is apparent from the existing case law that a party cannot be held liable for general slippery conditions and there must be additional evidence to demonstrate that the party was negligent in some manner. Thus, the court determined that the plaintiffs failed to present sufficient evidence to demonstrate a claim for negligence without applying the hills and ridges doctrine to the current matter.

For the reasons set forth in this opinion, the plaintiffs’ appeal should be denied in its entirety.

ORDER OF COURT

Now this 22nd day of December, 2014, an appeal having been filed in the above-captioned case by the plaintiffs, Patricia Heichel and Gerald Heichel, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(a). The prothonotary of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable Rules of Appellate Procedure.

The prothonotary of Lawrence County is directed to serve a copy of this order of court and opinion upon counsel of record.

      . It must be noted that reversal of a trial court’s decision to grant or deny reconsideration for the purposes of receiving additional evidence is not typically disturbed by the appellate court, unless there is an abuse of discretion. Id. (quoting Kruth v. Liberty Mutual Insurance Co., 499 A.2d 354, 356 (Pa. Super. 1985)). The trial court may permit the presentation of after-discovered evidence; however, the evidence “(1) must be new; (2) could not have been obtained at trial in the exercise of due diligence; (3) is relevant and noncumulative; (4) is not for the purposes of impeachment; and (5) must be likely to compel a different result.” Id. (citing Leung v. Pennsylvania Public Utility Commission, 582 A.2d 719, 721 (pa. Cmwlth. 1990)).


author: ANDERSON, J.,

text:
    Linde Corp. v. Black Bear Property, LP

      C.P. of Lycoming County,
    No. 13-01,163

      Timothy J. Woolford, for plaintiff.

      Scott T. Williams, for defendants.
    Jan. 12, 2015
   ANDERSON, J.,

— Before the court is plaintiff’s complaint to obtain judgment and to enforce mechanic’s lien claim, filed September 6, 2013. A trial was held on October 14,2014, following which the parties requested and were granted the opportunity to file briefs. On October 22,2014, defendants filed a brief and plaintiff filed a motion to amend complaint, seeking to amend the complaint to address certain evidence introduced at trial. Argument on that motion was heard November 14, 2014, following which argument the court scheduled an additional hearing, which was held December 15, 2014. Plaintiff then requested and was granted the opportunity to file the brief which was to have been filed following the first trial, and that brief was filed January 5,2015. The matter is now ripe for decision and the court enters the following:

FINDINGS OF FACT

(1) Plaintiff Linde Corporation is a site and utility contractor with a main office in Pittston, Pennsylvania.

(2) Defendant Black Bear Holdings, LLC (“BBH”), is a limited liability company formed in 2011 for the purpose of real estate acquisition and development. At the time of formation, William Epp, John DiNaso, Sr. and Joshua Phillips were all the members of the LLC. William Epp was appointed to serve as the managing member.

(3) In 2011, BBH acquired a parcel of real estate in Lewis Township known as tax parcel 24-268-151.

(4) In 2011, defendant Stewart Dibble (“Dibble”) owned three adjacent (to the BBH parcel) parcels, specifically tax parcel 24-268-183.A, tax parcel 24-268-152 and tax parcel 24-268-149.

(5) On March 15, 2012, the members of BBH and Dibble entered an agreement “to provide for the transfer of the Dibble Parcel to BB Holdings in exchange for the satisfaction of certain liens on the Dibble parcel and a transfer of a total of 25% of BB Holdings equally from the shares of Epp and DiNaso to Dibble”.

(6) The March 15, 2012, agreement was entered in anticipation of the development of the combined properties as a water withdrawal facility.

(7) The March 15, 2012, agreement provided that “contemporaneously with the execution” thereof, Epp and DiNasso “shall pay such sums as are necessary to fully settle and satisfy all record liens on the Dibble Parcel, consisting of the following three liens.” Four items are then listed: (a) First National Bank of PA: $45,000.00; (b) Matthew Sauder: $801.24; (c) Northwest Consumer Discount Company: $4,511.65; and (d) Mary Ann Yoder: $35,000.00. The agreement specifies that the sums listed are “subject to any modifications made by the creditor by the time of final payment and satisfaction”.

(8) The March 15, 2012, agreement also provided that “[ujpon payment of said liens and satisfaction of same, Dibble shall convey the Dibble Parcel to BB Holdings, by special warranty deed, further conditioned upon Epp and DiNasso transferring part of their interests in BB Holdings to Dibble” such that Dibble became 25% owner in the company.

(9) In the March 15, 2012, agreement, the parties agreed to “promptly execute any and all further documents incidental to the implementation of the terms of this agreement”, and also “acknowledge[d] that each aspect of the foregoing transaction is mutually interdependent with the other aspects, deed transfer and BB Holdings membership interest transfers must occur simultaneously”.

(10) Dibble acquired a 25% interest in BBH on March 15, 2012.

(11) Epp contacted plaintiff sometime prior to April 19, 2012, and requested a bid on the proposed water withdrawal facility. Epp submitted to plaintiff an “operations plan” designed by Barry Isett & Associates, Inc., dated April 19, 2011. The plan’s “project property boundary” includes, among others, the four parcels referenced in Paragraphs 3 and 4, above, and shows parcel 151 as being owned by “Black Bear Property, LP” and parcels 183 .A, 152 and 149 as being owned by Dibble.

(12) Plaintiff submitted a “proposal” dated April 19, 2012, and on April 20, 2012, by Epp’s acceptance of that proposal, plaintiff and BBH entered a contract whereby plaintiff would construct certain portions of the water withdrawal facility per the operations plan in exchange for a payment of $251,248.00.

(13) A $25,000.00 deposit was provided to plaintiff from BBH by check dated April 21, 2012. Work on the facility began on or about that time.

(14) Following an invoice dated May 31, 2012, an additional payment of $50,254.32 was made to plaintiff from BBH by check dated June 4,2012.

(15) Two change orders were agreed to by BBH, one for mechanical and electrical revisions, at a cost of $23,481.66, and one for additional pipe and conduit, at a cost of $16,599.04.

(16) Toward the total contract price of $291,328.70, only the two above-referenced payments were made. Under the contract, $216,074.38 remains due and owing.

(17) On May 31,2012, Dibble and Mary Ann Hill-Yoder executed a deed purporting to transfer all their interest in “five parcels and lots of land” in Lewis Township to BBH. The metes and bounds descriptions refer to tax parcels 24-268-149 and 24-268-152, and include three other parcels which are not identified by parcel number but appear to include tax parcel 24-268-183.A. This deed has not been recorded.

(18) Sometime prior to November 13, 2012, BBH applied for a business loan with Susquehanna Bank. In making the application, it was represented to Susquehanna that funds were being requested to re-finance certain debt and to pay the indebtedness to plaintiff, among other things. Parcels 150, 149 and 152, as well as three others not involved herein, were to be encumbered by a mortgage. It was represented to Susquehanna that BBH either owned or by closing would own all of the properties being mortgaged. A copy of the May 31, 2012, deed was provided to the bank and the bank was never informed that the deed had not been recorded or was being held and had not been delivered.

(19) As the property described in the deed of May 31, 2012, had a lien against it held by Mary Ann Hill-Yoder, in order to obtain first lien priority, the bank required a pay-off of that lien at closing.

(20) A closing on the loan was held January 9, 2013. $25,000.00 was paid to Mary Ann Hill-Yoder.

(21) None of the other three items listed in the March 15,2012, agreement was paid directly from the settlement funds. These items were apparently not liens against the property.

(22) The loan agreement and mortgage were signed by Epp, DiNasso, Phillips and Dibble, all as “Member of Black Bear Holdings, LLC”. Dibble did not sign individually.

(23) Dibble did sign a commercial guaranty individually, personally guaranteeing the loan agreement. (Epp and DiNasso also, as individuals, signed commercial guaranties.)

(24) In a lawsuit filed in Luzerne County, in which plaintiff seeks payment under the contract which serves as the basis for the instant mechanic’s lien, plaintiff alleges that “[i]t is unjust for the property owners, Black Bear Holdings, Stewart Dibble and American Premier Underwriters, to retain the benefits of the improvements Linde provided to their land without paying for the same.” In preliminary objections filed March 24, 2014, Dibble (as one of the “answering defendants”) asserts that the complaint “really only provides a factual basis for a breach of contract claim against Black Bear Water, LLC” and that “Stewart Dibble has no personal ownership of any of the property and thus he cannot be unjustly enriched.”

DISCUSSION

The Mechanics’ Lien Law of 1963 provides, in pertinent part, that

Every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor...for labor or materials furnished in the erection or construction...of the improvement, provided that the amount of the claim... shall exceed five hundred dollars ($500).

49 P.S. Section 1301. The evidence at trial clearly indicates that plaintiff, as contractor, constructed an improvement on property owned by someone, and that there is a debt due to plaintiff for labor and materials furnished in the construction. Plaintiff contends, in its amended complaint, that that someone is BBH. Defendants contend, however, that plaintiff contracted with BBH but the property is owned by Dibble, who had leased the property to BBH, thus triggering the requirement of the Mechanic’s Lien Law that the contractor obtain a written consent from the landlord when constructing an improvement for the tenant, in order to enforce a lien against the property of the landlord. Plaintiffs assert there was no lease, and in fact, BBH did own the property as a result of the May 31, 2012, deed. Defendants contend that deed was never delivered and therefore that property was never transferred to BBH. Plaintiff counters that even if the deed has yet to be delivered, BBH is nevertheless the equitable owner of the property as a result of the March 15,2012, agreement, thus subjecting the property to a lien. Finally, defendants argue that the portion of the facility which actually lies on the parcel owned by BBH, parcel number 151, is so insignificant that it cannot be considered an “improvement” or an “erection or construction” such as would subject the property to a mechanic’s lien. Each of these issues will be addressed seriatim.

Lease of the Property

Defendants have asserted that Section 1303(d) prohibits the attachment of a lien in this case. That section provides: “No lien shall be allowed against the estate of an owner in fee by reason of any consent given by such owner to a tenant to improve the leased premises unless it shall appear in writing signed by such owner that the erection, construction, alteration or repair was in fact for the immediate use and benefit of the owner. “ 49 P.S. Section 1303(d). As stated previously, there is no written consent signed by Dibble. Considering all of the evidence, however, the court cannot find that BBH was a tenant such that this section applies.

Dibble testified that he has a “verbal lease with Black Bear Holdings”, that he “made it with William Epp.” He does not know the date of the lease, but testified that it was “done before they started work on the project.” He also testified that “[i]t was probably right at that same time”, referencing the March 15, 2012, agreement. There is no document to memorialize the lease. Dibble testified that he “get[s] 500 from them”, but did not bring copies of the checks to the hearing. He stated that rent is paid “[w]hen we have money”, and the rent was last paid “[pjrobably last month”. Dibble admitted that rent was not listed as an expense on Black Bear Holdings’ financial statements for 2012 or 2013, and when he admitted that there was not “a piece of paper at all anywhere in the world that [he was] aware of that corroborates the existence of [the] lease”, but then was reminded that he had “said [he] had some checks”, he stated, “Well, whenever they had money they would give me some money just until we got up and going; and the company never got up and going. So we never really got nothing really to say paying the lease on time. It was just up in the air, like, you know, we’ll give you $500.00 a month for lease; but it never got to that point because we never started pumping water.” While this sounds like Dibble was now saying he never received any rent, when asked by the court “So you never received any 500-dollar checks?”, he said, “I did a couple of them, yes sir.”

William Epp testified that BBH did not write checks for rent to Dibble, that Black Bear Waters did. He said he did not know how many such checks had been written, and when asked to admit that Black Bear Waters’ financial statements did not reflect rent payments, he said the accountant “may have buried that into another operating expense for accounting reasons.” Finally on this subject, when asked whether he was saying that Waters paid or will pay rent to Dibble, Epp stated: “It comes down to whoever has the money. Right now Waters is the only account that has money in it. And also he was permitted to take the rent from I believe it’s 188 Upper Powy’s Road when we didn’t have the money. So they paid him directly.” He further explained: “There is a residential renter on one of the properties there, and we allow Stewart to keep that rent every month in lieu of our obligation to pay him his lease payment.” Remarkably, this last-referenced arrangement was never mentioned by Dibble even though he was asked several times about the matter.

Overall, this testimony, from both Stewart Dibble and William Epp, is contradictory and confusing. It is not credible and cannot serve as the basis for a finding that BBH leased the property from Dibble.

The court rejects plaintiff’s argument, however, that without a lease, the court must enforce the lien on the basis of the holding in Kelly v. Hannan, 566 A.2d 318 (Pa. 1989). True, there the court found the proffered lease fraudulent, “produced...at the time of the hearing in order to engage the language of Section 1303(d).” Id. at 318. The reason the lien was enforced, however, was not simply for the lack of a lease, but because the alleged tenant (who did not in fact own the property) had led the contractor to believe that he did own the property, and the owner knew of the “tenant’s” intention to contract with the contractor as if he were the owner. Specifically, the court found the following to be the “boundary mark” for its inquiiy: “The owner of leased property may be found liable for the improvements a tenant has made if the owner has not acted in good faith throughout the transaction knowing that the tenant intends to make a contract acting as if he were the owner. Where facts are withheld and any attempt is made to mislead the contractor and the owner has promised to pay for the cost of the improvements, the theory of estoppel will lie.” Id. at 316 (citation and internal quotation marks omitted). The court found “the contractor believed that he was contracting with the owners of the property and the Hannans knew of the Thompsons’ intentions to contract with Mr. Kelly as though they were the owners”, and that “the appellee failed to act with good faith throughout the transaction.” Id. at 318.

That the court applied the above-quoted language as it’s “boundary mark” in spite of its finding that there had been no lease, clearly indicates that when property is owned by one person but the contract is entered by another, the focus is not on the existence of a lease but, rather, on the conduct of the parties with respect to the contractor’s belief regarding ownership. In the instant case, it is clear that defendants did not mislead plaintiff into thinking that BBH owned the property. The operations plan submitted at the beginning of the project clearly identifies Dibble as owner of three of the four parcels at issue. And, while plaintiff argues that Epp and Dibble have acted in bad faith throughout the transaction by, inter alia, representing to the Bank that the money sought to be loaned was for the purpose of paying plaintiff but then failing to pay, and by promising plaintiff they would be paid but then not paying them, and while such could indeed constitute bad faith, it is not the type of bad faith relied on by the court in Kelly in enforcing a lien despite Section 1303(d)’s requirement of a signed consent: bad faith with respect to the identity of the true owner of the property.

The May 31, 2012, deed

As noted above, on May 31, 2012, Dibble and Mary Ann Hill-Yoder executed a deed purporting to transfer all their interest in “five parcels and lots of land” in Lewis Township to BBH. The deed has not been recorded. Defendants concede that recording is not necessary to transfer title, but argue that delivery is necessary and that the deed was never delivered. As defendants note in their brief filed November 12, 2014, “whether there has been delivery depends on the intention of the grantor as shown by his words and actions and by the circumstances surrounding the transaction.” In the instant case, actions speak much louder than words.

Both Dibble and Epp testified that although the deed was executed, it was to be held by their (previous) attorney until all conditions had been satisfied, referring to the four items listed in the March 15, 2012, agreement. Dibble testified that two of the four items had not been paid and therefore the deed had not been delivered.

Against this testimony the court balances the much weightier evidence that the transaction had been completed, and that failure to record the deed was not intentional but a fortuitous (for defendants) oversight. First, the March 15, 2012, agreement was quite clear that “each aspect of the foregoing transaction is mutually interdependent with the other aspects, deed transfer and BB Holdings membership interest transfers must occur simultaneously”. The membership was transferred on March 15, 2012. Second, in support of BBH’s application for a loan, the Bank was provided with a copy of the deed but never informed that it was being “held”, and was led to believe that the property was owned by BBH. Third, Dibble signed the Business Loan Agreement and the Mortgage as “Member of Black Bear Holdings, LLC”, but not individually, instead signing a commercial guaranty to personally guarantee the loan. Fourth, the items listed in the agreement were represented at trial to be liens on the property, and inasmuch as the Bank went through with the closing without directly paying three of the four items in spite of its stated requirement that it have a first lien on the property, they must have been paid off prior to closing, contrary to the testimony. Finally, in the Luzerne County lawsuit, defendants asserted that “Stewart Dibble has no personal ownership of any of the property”. The court has no trouble concluding that this is actually the truth, based on its finding that Dibble intended to complete the transaction when he executed the deed on May 31, 2012.

Equitable Ownership of the Property

Plaintiff argues that even if the deed had not been delivered, BBFÍ had an equitable interest in the property by virtue of the March 15, 2012, agreement, and thus the property could nevertheless be subject to a mechanic’s lien. While the court considers it unnecessary to even address the issue, based on the court’s finding that title had actually transferred to BBH prior to the claim having been filed, plaintiff is indeed correct. Based on the March 15, 2012, agreement, BBH held equitable title to the property. See Arnold v. Cessna, 25 Pa. 34 (1855). Moreover, in Stratford v. Boland, 452 A.2d 824, 825 (Pa. Super. 1982), the Superior Court stated:

We can readily dispense with appellant’s claim that a mechanic’s lien could not have been properly imposed on the property because the contract in question was not made with the property’s owner.
Although the contract was made before appellant acquired an interest in the property, the lien claim was filed after he had acquired an equitable interest in it.
The contract upon which Mr. Stratford bases his claim was made with the person, who at the time the lien was filed, had equitable interest in the property. An equitable interest is such that its holder is considered an owner for purposes of the Mechanic’s Lien Law. See 49 P.S. § 1201, defining “owner”; McClure v. Fairfield, 153 Pa. 411, 26 A. 446 (1893). We believe that since Mr. Boland was the owner at the time the lien was filed, and was the person with whom Mr. Stratford contracted, that the claim could be validly filed against his property.

The lien is clearly proper in the circumstances of the instant case.

The “insignificant” wires

Defendants contend plaintiff is not entitled to a lien against Parcel 151 because the only “construction” on that parcel is the installation of wiring, which runs from an electric pole through a previously existing building, into and out of a junction box and then underground along that building to the various components of the water withdrawal facility which is located on the other three parcels. It is clear from the evidence that no construction in the ordinary sense of the word took place on parcel 151, only the installation of the wires and a junction box (inside the building). Defendants argue that the wiring is “such an insignificant part of this improvement that it is not within the definition of improvement under the Act.” Plaintiff counters by citing B.N. Excavating, Inc. v. PBC Hollow-A, L.P., 71 A.3d 274 (Pa. Super. 2013), which refers to the Black’s Law Dictionary definition of incidental as “Subordinate to something of greater importance; having a minor role.” Black’s Law Dictionary 765 (7th ed. 1999). The court agrees with plaintiff that the wiring is “incidental” to the water withdrawal facility, but it is not clear how this helps plaintiff, other than to support a finding that plaintiff is entitled to a lien for the labor and materials expended laying the wires. It does not necessarily follow that that lien should be on the property wherein the wires lay. The court draws this conclusion based on the following sections of the lien law:

§ 1301. Right to lien; amount; subcontractor
(a) General Rule. Except as provided under subsection
(b), every improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the alteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this act, shall exceed five hundred dollars ($ 500).

49 RS. Section 1301 (emphasis added). Section 1201 provides the definition of improvement: “any building, structure or other improvement of whatsoever kind or character erected or constructed on land”; the definition of property: “the improvement, the land covered thereby and the lot or curtilage appurtenant thereto”; and the definition of erection and construction: “the erection and construction of a new improvement”. Significantly, it also provides the following: “erection, construction, alteration or repair” includes: ...(c) Furnishing, excavating for, laying, relaying, stringing and restringing...wires, whether on the property improved or upon other property, in order to supply services to the improvement. 49 P.S. Section 1201 (emphasis added). This latter definition implies that the furnishing of wires may be included in the amount of the lien, but by reference to “other property” separate from “the property improved” it is clear that “other property” is not to be included in the lien. Therefore, the court agrees with defendants that Parcel 151 is not subject to Plaintiff’s mechanics’ lien claim.

CONCLUSIONS OF LAW

(1) Plaintiff is entitled to a mechanics’ lien in the amount of $216,074.38 for labor and materials furnished in the construction of the water withdrawal facility.

(2) The lien is properly placed on Parcel numbers 24-268-183.A, 24-268-152 and 24-268-149.

ORDER

And now, this 12th day of January 2015, for the foregoing reasons, judgment on the mechanic’s lien is hereby entered in plaintiff’s favor in the amount of $ 216,074.38 with interest at the legal rate, against and upon the property identified as Lycoming County Tax Parcel numbers 24-268-183.A, 24-268-152 and 24-268-149.

      . The mechanic’s lien claim was filed May 16, 2013.

      . It appears there is no such entity as Black Bear Property, LP or Black Bear, LLC. Therefore, in referring to “defendants”, the court refers to only Black Bear Holdings, LLC and Stewart E. Dibble.

      . No explanation was provided as to the discrepancy between the reference to three liens but the listing of four items.

      . Dibble testified to such. See N.T., October 14,2014, at p. 100.

      . Only the four parcels referenced in Paragraphs 3 and 4 are at issue, as the work done by plaintiff affected only those parcels.

      . Other portions of the facility, including a large water tank, were already completed or were subsequently completed by others.

      . See Exhibit 24. See also, N.T., October 14,2014, at p. 108.

      . The loan agreement identifies the “Borrower” as Black Bear Holdings, LLC and Black Bear Waters, LLC. Black Bear Waters, LLC was formed to hold the water withdrawal facility; Black Bear Holdings, LLC was formed to hold the real estate on which the facility was constructed. The March 15, 2012, agreement refers to a lease to be entered into between Holdings and Waters. As Waters did not enter the contract with plaintiff, and does not own the real estate in question, further findings with respect to Waters are considered unnecessary.

      . Again, Parcel 183 .A was not included by reference to the parcel number and it is thus unclear whether the mortgage encumbers that parcel, but such is not relevant to the instant dispute.

      . Apparently the suit is filed there as that is the county where payment is due. See complaint filed January 17, 2014, to Luzerne County No. 2014 — 625, Paragraph 12.

        .Id. at Paragraph 40.

      . The proposal refers to “Black Bear LLC”. Defendants are asserting in the Luzerne County suit that such referred to Black Bear Waters, not Black Bear Holdings.

      . See preliminary objections filed March 24, 2014, at paragraph 25.

      . There is no dispute that no such written consent was obtained from Dibble.

      . The issues developed over the course of these proceedings. In the original claim, plaintiff contended the improvement was constructed on property owned by Dibble, Black Bear Holdings, LLC and Penn Central Corporation. (Penn Central was dismissed from the action when its motion for summary judgment was granted on September 23, 2014.) Based on the May 31, 2012, deed, introduced at the trial on November 14, 2014, plaintiff seeks to amend the claim and the complaint to allege that BBH owns the property. At argument on the motion to amend, defendants asserted the deed was never delivered. Upon agreement of counsel, further hearing was scheduled to address that issue. Based on the evidence introduced at that hearing on December 15, 2015, the court hereby grants the motion to amend.

      . For purposes of this argument, the court assumes Dibble is the owner.

      . N.T., October 14, 2014, atp. 91.

      . Id. at p. 96.

      . Id. at p. 100.

      . Id.

      . Id. at p. 92.

      . Id. at p. 93.

      . Id.

        .Id. atp. 101-102.

        .Id. atp. 116.

        ld.

      . Id.

      . Id.

        . Id. atp. 173.

      . Id.

      . Id. atp. 174.

        .Id. atp. 176.

      . Id.

      . The property was owned by the parents of the daughter and son-in-law who contracted with the plaintiff to build a house on the property.”

      . Ms. Hill-Yoder’s signature was obtained to convey “any and all rights, title and interest she may have retained, reserved, received or obtained” when she deeded the property to Dibble in 2009. See plaintiff’s Exhibit 24.

      . No one purported to know where the original deed is presently located.

      JNT., October 14,2014, at p. 181.