author: MINORA, J.,

text:
    DeSando v. Jefferson Township

      Pro se plaintiffs.

      Patrick Murphy and Frank Bolock, for defendants.
    April 3, 2014
   MINORA, J.,

MEMORANDUM AND ORDER

Before this court is the above-captioned plaintiffs’ self titled, “plaintiffs’ motion for reconsideration of the court’s order dated December 5, 2013, denying plaintiff’s motion for additional time to file brief in opposition to defendants’ preliminary objections/motion for sanctions until discovery is completed.” For the reasons that follow, the plaintiffs’ motion is denied and dismissed in its entirety.

FACTUAL BACKGROUND

1. On December 10, 2012, plaintiffs, Lynne DeSando, Gregory Kapeluck, Nancy Utter and Joseph Pilchesky, filed a complaint in the nature of declaratory judgment and request for injunctive relief in the Court of Common Pleas of Lackawanna County.

2. Thereafter, moving defendants and co-defendants, Department of Environmental Protection and Mary Louise Butler, engineer, filed preliminary objections to the plaintiffs’ original complaint pursuant to Pa.R.C.P. 1028.

3. On January 17, 2013, plaintiffs filed the first amended complaint in the nature of declaratory judgment and request for injunctive relief as of course pursuant to Pa.R.C.P. 1033.

4. On February 7, 2013, moving defendants filed preliminary objections to the plaintiffs’ first amended complaint pursuant to Pa.R.C.P. 1028.

5. On February 21, 2013, plaintiffs filed a second amended complaint in the nature of declaratory judgment, mandamus and request for injunctive relief as of course pursuant to Pa.R.C.P. 1033.

6. On March 12, 2013, moving defendants filed preliminary objections to plaintiffs’ second amended complaint pursuant to Pa.R.C.P. 1028.

7. On April 1, 2013, plaintiffs filed a third amended complaint in the nature of declaratory judgment, mandamus and request for injunctive relief as of course pursuant to Pa.R.C.P. 1033.

8. On April 19, 2013, moving defendants filed preliminary objections to plaintiffs’ third amended complaint pursuant to Pa.R.C.P. 1028.

9. On May 9, 2013, plaintiffs filed a fourth amended complaint in the nature of declaratory judgment, mandamus, and request for injunctive relief and unjust enrichment as of court pursuant to Pa.R.C.P. 1033.

10. Plaintiff, Gregoiy Kapeluck, avers that he resides at 1665 Archbald Road in Jefferson Township, Pennsylvania. See paragraph “2” of plaintiffs’ fourth amended complaint. On June 6, 2013, plaintiff Kapeluck withdrew from this suit by order of President Judge Thomas Munley.

11. Plaintiff, Joseph Pilchesky, avers that he resides at 819 Sunset Street in Scranton, Pennsylvania 18509. See paragraph “4” of plaintiffs’ fourth amended complaint.

12. Plaintiffs allege that Homer Butler is the Sewage Enforcement Officer for Jefferson Township. See paragraph “8” of plaintiffs’ fourth amended complaint.

13. In their fourth amended complaint, plaintiffs have asserted claims for declaratory judgment, mandamus and request for injunctive relief.

14. When this court references Jefferson Township or the Jefferson Township defendants, it collectively includes Jefferson Township, The Jefferson Township Board of Supervision, The Jefferson Township Sewer Authority, and Homer Butler, the Jefferson Township Sewer Enforcement Officer.

15. On May 24, 2013, defendants filed preliminary objections consisting of thirteen separate demurrers to plaintiffs’ fourth amended complaint pursuant to Pa.R.C.P. 1028.

16. Th & First Demurrer states that per Pa.R.C.P. 1028(a) (1), (2), (4) and (5), defendants should be dismissed as a matter of law since the court lacks subject matter jurisdiction over Gregory Kapeluck and Joseph Pilchesky. Mr. Kapeluck and Mr. Pilchesky are not real parties in interest and improper to this matter, because Pilchesky resides in Scranton and is not a resident of Jefferson Township, and Kapeluck’s property is not included in the list of properties to be serviced by phase 3 of the sewer project. [See defendants’ preliminary objections at ¶¶25-29].

17. The Second Demurrer states that the plaintiffs failed to establish any basis for declaratory judgment relief due to lack of direct immediate injury. The plaintiffs’ claims of irreparable harm or urgency are unfounded and premature, because the proposed phase 3 of the plan is currently before the Department of Environmental Protection (D.E.P.) for review and has not been completed. The defendants argue the plaintiffs’ allegation are nothing more than scandalous and impertinent statements, which have no basis in law or fact upon which relief can be granted. Also, the defendants believe the preliminary or special injunction shouldn’t be granted per Pa.R.C.P. 1531(b)(1), because plaintiffs failed to file a bond in an amount fixed and with security approved by the court concerning potential damages sustained as a result of granting the injunction. [See defendants’ preliminary objections at ¶¶30-35].

18. The Third Demurrer states that the claims set forth in the complaint are premature and not ripe, because the project is before the D.E.P. and in the process of being ruled on for ultimate approval. Therefore, defendants believe the plaintiffs cannot demonstrate a clear right and a need for immediate relief. [See defendants’ preliminary objections at ¶¶36-39].

19. The Fourth Demurrer maintains that Homer Butler, the Jefferson Sewer Enforcement Officer, should be dismissed as a defendant, because there are no direct allegations set forth against him individually or as an agent of Jefferson Township, to sustain an independent cause of action. The concerns raised by the plaintiffs specifically related to activities and decisions of Jefferson Township and Jefferson Township Sewer Authority as municipal entities and not actions or inactions of Homer Butler as an individual. [See defendants’ preliminary objections at ¶¶40-43].

20. The Fifth Demurrer states that the complaint pursuant to Pa.R.C.P. 1028(a)(1) shall be dismissed for lack of jurisdiction over the subject matter of the action, because the application for the proposed plan is currently pending before D.E.P., and proper jurisdiction is vested within the D.E.P. and the Environmental Hearing Board. Defendants argue that plaintiffs have failed to exhaust prerequisite administrative statutory remedies set forth in the Pennsylvania Sewage Facilities Act 35 P.S. Section 750.1 et sec. The act statutorily provides an administrative process that must first be followed with regard to determinations of local agencies or the Pennsylvania Department of Environmental Protection. [See defendants’ preliminary objections at ¶¶44-47]

21. The Sixth Demurrer states that pursuant to Pa.R.C.P. 1028(a)(7), plaintiffs’ complaint should be dismissed for failure to exhaust prerequisite statutory administrative remedies set forth in the Sewage Facilities Act, specifically the provisions of 35 P.S. Section 750.16(b) which states “any order, permit, or decision of the department under this Act, except as otherwise provided by section (10) and section (11) of this Act shall be taken subject to the right of notice and appeal to the Environmental Hearing Board, pursuant to section 1921-A of the administrative code of 1929, as amended.” [See defendants’ preliminaiy objections at ¶¶48-50].

22.The Seventh Demurrer maintains that pursuant to Pa.R.C.P. 1028(a)(4) plaintiffs’ complaint should be dismissed as a matter of law for failure to set forth a claim upon which relief can be granted. [See defendants’ preliminary objections at ¶¶51-52].

23. The Eighth Demurrer argues that the complaint fails to conform to Pa.R.C.P. 1019(a), because the material facts on which a cause of action is based are not stated in a concise and summary form. [See defendants’ preliminary objections at ¶¶53].

24. The Ninth Demurrer requests that pursuant to Pa.R.C.P. 1028(a)(3) the complaint should be dismissed as a matter of law for insufficient specificity of a pleading, because they are unable to ascertain the nature of the claims asserted against them with sufficient exactitude and precision so as to enable them to prepare a responsive pleading. [See defendants’ preliminary objections at ¶¶54-55].

25. The Tenth Demurrer maintains that plaintiffs’ complaint should be dismissed as a matter of law because of the lack of capacity to sue and standing to institute the within action seeking declaratory judgment, mandamus, and injunctive relief pursuant to Pa.R.C.P. 1028(a)(5). [See defendants’ preliminary objections at ¶¶56-57].

26. The Eleventh Demurrer requests that pursuant to Pa.R.C.P. 1028(a)(2) plaintiffs’ complaint should be dismissed as a matter of law for the inclusion of scandalous and impertinent matter. In the alternative, defendants request that the scandalous and impertinent matter be stricken. [See defendants’ preliminary objections at ¶¶58-60],

27. The TwelfthDemurrer argues that JeffersonTownship and Homer Butler, as Jefferson Sewer Enforcement Officer, are immune from liability for negligence claims under 42 Pa.C.S. § 8542, the court should dismiss any and all claims for negligence and gross negligence. Plaintiffs’ claims do not fall within the exceptions to immunity; therefore the allegations fail to state a valid cause of action upon which relief can be granted. [See defendants’ preliminary objections at ¶¶61 -66].

28. The Thirteenth Demurrer declares that due to lack of injury, the plaintiffs cannot legally sustain a claim for mandamus under Pa.R.C.P. 1028(a)(4) and therefore all claims for mandamus should be dismissed as a matter of law for failure to state a claim upon which relief can be granted. [See defendants’ preliminary objections at ¶¶67-68].

29. In an attempt to answer defendant’s preliminary objections, the plaintiffs seek to conduct discovery in aid of forming answers and a brief in support of plaintiffs’ answers to defendants’ preliminary objections. Such discovery to respond to a test of the legal sufficiency of the plaintiffs’ fourth amended complaint does not exist by statute, nor does such discovery exist within the Rules of Civil Procedure.

30. Plaintiffs presented a motion for additional time to file brief in opposition to defendants’ preliminary objections/request for sanctions until discovery has been completed.

31. On December 5, 2013, this court denied the relief requested. The court’s reasoning was that a right to discovery to aid in forming an answer and brief in support of the plaintiffs’ answers to defendants’ preliminary objections does not exist; therefore it can never be commenced let alone completed.

32. Plaintiffs’ now ask us to reconsider the court’s order denying plaintiffs’ requested relief.

JURISDICTION

The threshold question is whether this court has jurisdiction over the above matter. On January 6, 2014, the plaintiffs filed a notice of appeal to the Pennsylvania Superior Court relating to this court’s order dated December 5, 2013. Pa.R.App.P. 1311 provides that an appeal of an interlocutory order may be taken by permission under 42 Pa.C.S. Section 702(b) from any interlocutory order of an administrative agency or lower court. According to section 702 interlocutory orders (c),“... a petition for permission to appeal under this section shall not stay the proceedings before the lower court or other government unit, unless the lower court or other government unity or appellate court or a judge shall so order.” Here, because the court’s order dated December 5, 2013 was interlocutory and not final, and no permissive appeal was sought nor granted by the court, the lower court can review the case at least until there is a determination on the appeal filed. Commonwealth v. Yingling, 911 A.2d 572 (Pa. Super. 2006) (citing interlocutory orders 42 Pa.C.S.A. Section 702(c)).

DISCUSSION

I. MOTION FOR RECONSIDERATION

The first issue which poses problems for the plaintiffs is whether proper grounds exist for the court to grant a motion for reconsideration. In deciding a motion for reconsideration, a trial court is invested with broad discretion as to whether or not it will modify or rescind a prior order. See 42 Pa.C.S.A. §5505; PNC Bank N.A. v. Unknown Heirs, 929 A.2d 219 (Pa. Super. 2007). The proper grounds for granting reconsideration include new and material evidence or facts, a change in the controlling law, or a clear error in applying the facts or law to the case at hand so that it is necessary to correct a clear error and prevent a manifest injustice from occurring. Ellenbogen v. PNC Bank N.A., 731 A.2d 175 (Pa. Super. 1999). Amotion for reconsideration should be granted sparingly and mere disagreement with the court’s conclusion is not a basis for reconsideration. Id.

Here, the court finds that the plaintiffs have failed to establish proper grounds in order for the court to grant the motion for reconsideration. The plaintiffs have offered no arguments suggesting the existence of new and material evidence or facts. The facts within the present case consist of already provided evidence by the parties and facts already of public record. There is also no change in the controlling law since the court’s order dated December 5, 2013. The court reasons that given the circumstances of this case, there exists no clear error to correct and no injustice to prevent. It is well within this court’s discretion to deny the plaintiffs’ motion for reconsideration given the non-existence of proper grounds.

II. STANDING

Next, the court considers whether the plaintiffs lack the appropriate standing to bring the above action. The concept of standing focuses on whether a party is adversely affected or “aggrieved” in any way by the matter being challenged. William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269,280 (Pa. 1975). In order to be “aggrieved,” a party must have a substantial interest in the subject matter of the litigation, the interest must be direct, and the interest must be immediate. Id. at 282. For a party to have standing based on taxpayer status, the five requirements that must be satisfied are: (1) the governmental action would otherwise go unchallenged; (2) those directly and immediately affected by the complained of matter are beneficially affected and not inclined to challenge the action; (3) judicial relief is appropriate; (4) redress through other channels is unavailable; and (5) no other persons are better situated to assert the claim. Pittsburgh v. Palisades Park, LLC v. Commonwealth, 888 A.2d 662 (Pa. 2005) (summarizing taxpayer exception standing requirements in Application of Biester, 409 A.2d 848 (Pa. 1979)).

The plaintiffs’ basis for bringing this cause of action is their status as taxpayers of the Commonwealth of Pennsylvania. Plaintiffs assert their rights to expect the defendants to observe their duty to ensure sound fiscal management by not spending public funds on sewer plans that cannot meet approval [See plaintiffs’ complaint at ¶¶87]. Plaintiffs seek an order from the court directing defendants to immediately cease any further spending of taxpayer funds on the planning for the installation of sewer lines on Living Waters Road and Archbald Mountain Road [See plaintiffs’ complaint at ¶¶88]. Plaintiffs further request the court to direct the defendants to withdraw the current application because such application is a waste of local taxpayer funds [See plaintiffs’ complaint at ¶¶89].

It is undisputed that Joseph Pilchesky resides at 819 Sunset Street in Scranton, Pennsylvania, which is clearly not within Jefferson Township nor is it listed in Exhibit “B” as a property to be served by phase 3 of the sewer project. It is also established that Gregory Kapeluck resides at 1665 Archbald Road in Jefferson Township, Pennsylvania, which is not listed as a property to be served by phase 3 of the sewer project. Consequently, the properties of Mr. Pilchesky and Mr. Kapeluck are not affected by the sewer project. The court reasons that because the stated plaintiffs’ properties are not encompassed by the sewer project, therefore they lack the appropriate standing to pursue the claims set forth in the complaint. An individual or individuals, who own property within the parameters of the proposed sewer project, are better situated to assert the claims. Despite this court’s strong conclusion that the plaintiffs lack the appropriate standing to bring the above action, it will proceed to review the plaintiffs’ position out of an abundance of caution and for completeness.

III. RIPENESS

Another issue this court believes bars the plaintiffs’ from this current matter is whether the matter is ripe for the court to make a ruling on it. The doctrine of ripeness arises out of judicial concern not to become involved in abstract disagreements of administrative policies. Texas Keystone, Inc. v. Pa. Dep’t of Conservation & Natural Res., 851 A.2d 228 (Pa. Cmwlth. 2004). In deciding whether the doctrine of ripeness bars our consideration of a declaratory judgment action, we consider “whether the issues are adequately developed for judicial review and what hardships the parties will suffer if review is delayed.” Alaica v. Ridge, 784 A.2d 837, 842 (Pa. Cmwlth. 2001) (quoting Treski v. Kemper Nat’l Ins. Co., 674 A.2d 1106, 1113 (Pa. Super. 1996)). The factors that are considered under the “adequately developed” inquiry include: whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding required to resolve the issue; and whether the parties to the action are sufficiently adverse. Id. Under the hardship analysis, the court may address the merits even if the case is not as fully developed as we would like, if refusal to do so would place a demonstrable hardship on the party. Id.

As stated in the defendants’ preliminary objections, the defendants ’ application for the proposed proj ect is currently pending before and not yet approved by the D.E.P. and the Environmental Hearing Board. The Pennsylvania Sewage Facilities Act statutorily provides an administrative process that must be followed and exhausted with regard to determinations of local agencies or the Pennsylvania Department of Environmental Protection. Specifically 35 P.S. Section 750.16(b) states: “any order, permit, or decision of the department under this act, except as otherwise provided by section (10) and section (11) of this act shall be taken subject to the right of notice and appeal to the Environmental Hearing Board, pursuant to section 1921-A of the administrative code of 1929, as amended.” Under the act, the D.E.P. is “entrusted with the responsibility to approve or disapprove official plans for sewage systems submitted by municipalities,...” Oley Tp. v. Pennsylvania Dept. of Environmental Protection, 710 A.2d 1228 (Pa. Cmwlth. 1998).

The court believes the present matter is not ripe for this court to make an appropriate decision. The court reasons that because the prerequisite administrative statutory remedy is exclusively provided for within the Pennsylvania D.E.P. and the Environmental Hearing Board, the issues are not “adequately developed.” Also, if the court decides not to address the matter at this point, there will not be a “demonstrable hardship” on either party. Therefore, this court believes that because there has yet to be a ruling on the matter by the D.E.P., plaintiffs failed to exhaust the appropriate statutory administrative remedies available. However, this court is still willing, out of an abundance of caution, to substantively address the issue on its merits.

IV. PRECOMPLAINT DISCOVERY

For the reasons set forth below, plaintiffs’ motion for reconsideration of the court’s order dated December 5, 2013 is misplaced and will be dismissed. Plaintiffs assert that they have a right to discovery prior to filing a brief in opposition to defendants’ preliminary objections/ request for sanctions in order to assist in answering the preliminary objections. However, this assertion is unsupported by law or Rules of Civil Procedure. The only discovery allowed at the pleading stage is pre-complaint discovery. See Pa.R.C.P. 4003.8. It is also well established that no discovery, shall be permitted which (a) is sought in bad faith; or (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party as per Pa. R.C.P. 4011. The trial court does not abuse its discretion by refusing to permit discovery until there is a ruling on preliminary objections to a complaint, because the interests of justice are best served by allowing defendants to show that the claims raised in the complaint failed to state a cause of action before burdening those same defendants with discovery. Luckett v. Blaine, 850 A.2d 811, 819 (Pa. 2004).

Here, plaintiffs seem to suggest that they have a legal entitlement to conduct discovery to assist them in formulating an answer and brief in support of plaintiffs’ answers to defendants’ preliminary objections, because “defendants did not file an adverse response or objection to the motion.” [See plaintiffs’ complaint ¶¶ 3]. While this is technically an accurate statement; it disingenuously neglects to mention the fact that defendants appeared in person at motion court and voiced strenuous and vigorous objection to the plaintiffs’ motion. The plaintiffs then go on to cite discovery rules that govern post complaint discovery but conveniently neglect to mention Pa.R.C.P. 4003.8, entitled pre-complaint discovery, which provides: “(a) A plaintiff may obtain pre-complaint discovery where the information sought is material and necessary to the filing of the complaint and the discovery will not cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party; and (b).. .the court may require the plaintiff to state with particularity how the discovery will materially advance the preparation of the complaint. In deciding the motion or other objection, the court shall weigh the importance of the discoveiy request against the burdens imposed on any person or party from whom the discovery is sought.”

The explanatory comment to Pa.R.C.P. 4003.8 states that in practice, a trial court addresses a discovery request not in abstract terms but in the context of the case at bar. In doing so, the court exercises significant discretion, weighing the importance of the request against the burdens imposed on the subject party to determine, as a practical matter, whether the discoveiy requested should be permitted. In Cooper, the court held that to obtain pre-complaint discovery a litigant should be required to demonstrate his good faith as well as probable cause that the information sought is both material and necessaiy to the filing of a complaint in a pending action. Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 140 (Pa. Super. 2008) (quoting McNeil v. Jordan, 934 A.2d 739, 742 (Pa. Super. 2007)).

The court holds that when applying this standard, the plaintiffs ’ request fails the requirements to permit discovery. In evaluating the plaintiffs’ discoveiy request, the court’s reasoning is guided by both the post-complaint and precomplaint discovery rules. The standards governing discovery rules clearly encompasses that discovery shouldn’t be permitted when it is sought in bad faith or would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party per Pa.R.C.P. 4003.4 and Pa.R.C.P. 4011. First, the court finds that given the particular circumstances of the present case and the number of amended complaints; allowing further discovery at this time would cause an unreasonable annoyance and burden on the defendants. Plaintiffs’ first complaint was filed on December 10, 2012 (Number 1). An amended complaint as of course was filed on January 17, 2013 (Number 2). On February 21, 2013, plaintiffs filed a second amended complaint as of course (Number 3). On April 1,2013, plaintiff filed a third amended complaint as of course (Number 4). On May 9, 2013, plaintiff filed a fourth amended complaint as of course (Number 5), which is the complaint now before us.

The disputes concerning the proposed sewage project raised in the preliminary objections are matters of public record equally available and easily accessible to both parties. It is within this court’s discretion to find that discovery at this time, is not permitted, nor is it necessary when preliminary objections are only testing the legal sufficiency of a complaint by demurrer. Further government documents at the state and local level which governs this project are public records equally available and accessible to all parties as public records without the need for formal discovery. Despite this open public availability, we are addressing the plaintiffs’ fifth complaint and litigation is over thirteen months old.

Next, in assessing whether plaintiffs’ answer to the preliminary objections falls within the scope of discovery concerning preparation of pleadings, we find that it does not. Pa.R.C.P. 4001 governs the scope of allowable depositions and discovery. It appears the rule would apply to plaintiffs’ fourth amended complaint. Pa.R.C.P. 4001(c) states “...any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the forgoing purposes.” The plaintiffs could certainly argue that, pursuant to Pa.R.C.P. 1017(4) entitled “pleadings allowed,” pleadings in an action encompass “preliminary objections and a response thereto.” In attempting to read Pa.R.C.P. 4001(c), which allows discovery, “for preparation of pleadings,” and Pa.R.C.P. 4003.8, which includes “...preliminary objection and an answer thereto” as a pleading, one could argue that this would have to mean that a party would be allowed to conduct discovery for a response to preliminary objections. However, this conclusion completely ignores the specific rule which doesn’t require an answer to preliminary objections unless the preliminary objections allege facts not of record as per Pa.R.C.P. 1028(c)(2).

After evaluating defendants’ preliminary objections, this court finds that there were no new facts unavailable as public record alleged, and therefore discovery rules pertaining to pleadings do not apply to the plaintiffs ’ answer or brief in support. In the carefully crafted preliminary objections the defendants have referred to specific paragraphs of the plaintiffs’ fourth amended complaint. The net result of the defendant’s preliminaiy objections is that all thirteen demurrers attack the fourth amended complaint as an insufficient pleading without any insertion or addition of new facts which could conceivably justify the unique discovery sought by the remaining plaintiffs.

Consequently, the court believes there lacks a sufficient factual basis that would permit the use of discovery to aid in the preparation of the answer and brief in support of plaintiffs answers to defendants’ preliminary objections. This court finds that since there were no new facts alleged in defendants’ preliminary objections and those needed are available as public record, discovery rules concerning pleadings, which conceivably allows for discovery, should not be viewed expansively and do not apply. No discovery is necessary, needed, or required. Furthermore, matters of record, which are encompassed by phases of the sewage project have either been pled or are of public record of which this court could take judicial notice. See Pa.R.Evidence. 201. The preliminary objections pose a legal test to the content and the legal sufficiency of the causes of action in plaintiffs’ fourth amended complaint. These objections raise factual issues that are already matters of public record equally available to all parties and the public at large. Therefore, discovery to assist the plaintiffs in preparing answers and a brief in support of the plaintiffs’ answers to the defendants’ preliminary objections is prohibited and will not be permitted in this case.

This opinion constitutes a final order for purposes of Pa.R.A.P. 341 and puts the plaintiffs out of court. Also, it is intended to support the court’s responsibility to issue an opinion in support of order pursuant to Pa.R.A.P. 1925.

It is so ordered and an appropriate order is attached.

ORDER

And now, on this day 3rd day of April, 2014, we order that:

1. Plaintiffs’ motion for reconsideration of the court’s order dated December 5, 2013, denying “plaintiff’s motion for additional time to file brief in opposition to defendants’ preliminary objections/motion for sanctions until discovery is completed” is denied and dismissed in its entirety.
2. Plaintiffs are without standing to initiate this lawsuit.
3. This court lacks subject matter jurisdiction due to the plaintiffs’ failure to exhaust the prerequisite statutory administrative remedies.
4. For all the above reasons the clerk is directed to discontinue this action with prejudice against refiling.


source: Caselaw Access Project

author: NORTON, J.,

license: Public Domain

text:
    Matos v. Geisinger Medical Center

      Michael D. Shaffer, for plaintiff.

      Anna Marie S. Bryan, for defendants Geisinger Medical Center, Michael A. Fitxpatrick, M.D. and Richard T. Davies, Jr., PA-C.

      James P Riff, for defendants Alley Medical Center, David Y. Go, M.D. and Kyle C. Maza, PA-C.
    March 12, 2014
   NORTON, J.,

At issue are the defendants’ motions for recusal of the undersigned filed on November 27, 2013 and December 2, 2013 (the “motions”). The present case alleges that Westley Wise presented to the defendants’ health care institutions on January 21, 2011 and January 24, 2011 for a psychiatric evaluation, and that Mr. Wise and/or his family stated that he had a violent psychiatric disorder and that the defendants were requested to admit Mr. Wise to a psychiatric unit. The plaintiffs allege that the defendants both released Mr. Wise without admission or proper treatment, and that Mr. Wise proceeded to kill the plaintiffs’ decedent, Jessica L. Frederick, on January 24, 2011.

On November 6, 2013, oral argument occurred on the defendants’ preliminary objections. An opinion and order disposing of said preliminary objections was issued on November 7, 2013 and filed on November 8, 2013. As noted at footnote 1 of said opinion, the parties agreed that no hearing, and thus, no record, was necessary.

At the beginning of argument on November 6, 2013, the undersigned noted that he had been the District Attorney of Columbia County from January 5, 2004 to January 2, 2012. In an effort to be completely candid, the undersigned disclosed that, in 2006, the undersigned prosecuted Mr. Wise on account of an assault upon Jennifer Kams in Columbia County (at the time, the undersigned was not sure of Ms. Kams’ name). Mr. Wise is the actor who has been convicted, through a guilty plea in Montour County before the honorable Thomas A. James, Jr., P.J., of murdering the plaintiff’s decedent in the present case. On November 6, 2013, at oral argument, the undersigned disclosed that he recalled a habeas corpus hearing in the 2006 Columbia County prosecution, in which the victim, Jennifer Kams, denied 42 times that she had any recall of the incident which left her with a knife wound to the neck. At no time did the undersigned state that he had a “vivid memory” of the facts behind the Columbia County criminal acts of Westley Wise. Until the motions were filed, the undersigned had an average recollection of the 2006 case, mainly that it involved a knife attack, that, at the habeas corpus hearing, the victim denied 42 times that she recollected what occurred and that Westley Wise professed to have some mental illness (this number stuck with the undersigned due to his disappointment at Ms. Kams’ denial of any memory, and his review of the transcript to determine that particular number). The undersigned does not believe that any psychiatric or medical records of Mr. Wise were secured by him when he was district attorney or that he otherwise reviewed any such records.

At the argument of November 6, 2013, after the disclosure, the undersigned stated that, if anyone had an objection, they should articulate it at that point. No express objection was voiced and argument proceeded.

Eventually, the topic of the argument turned to the plaintiffs’ demand for punitive damages and the defendants’ demurrer to that claim. In the midst of argument and the interchange between counsel and the undersigned sitting as judge, the undersigned made statements alluding to his belief that he had to accept all allegations of fact made in the complaint as true for purposes of considering a demurrer, and that, if true, there could be a question of fact as to whether the defendants’ conduct was wanton and willful. At that point, with the undersigned having “signaled” his eventual decision on the demurrer to punitive damages, Geisinger’s counsel questioned the undersigned’s ability to be objective, and she stated, for the first time, that the undersigned would be a witness in the present case. As argument concluded, Geisinger’s counsel asked what the undersigned would do on the issue of recusal, and the undersigned stated that, if he determined that recusal was appropriate, he would do so. It is important to note the context after the undersigned “signaled” that he was not going to dismiss the punitive damages claim: There were questions as to the undersigned’s ability to be objective and a relative circling around the issue of recusal, but, contrary to claims by Geisinger’s counsel, there was no motion for recusal expressed on November 6, 2013. This was verified by plaintiffs’ counsel and the undersigned at the hearing on the motions on January 24, 2014. It is also clear that Geisinger’s counsel’s statement that the undersigned would be a witness in the present case was manipulative and tactical in nature, because that threat only came after the undersigned professed an inclination to permit the claim for punitive damages to continue. As a result, this manipulative tactical maneuver was presented in bad faith.

The motions served to refresh some memory in the undersigned regarding his 2006 Columbia County prosecution of Mr. Wise. In that case, Mr. Wise pled guilty to simple assault after the granting of a habeas corpus motion as to attempted murder and aggravated assault counts. The dismissal of the attempted murder and aggravated assault counts greatly reduced the viability of the Commonwealth’s case and left only misdemeanor charges, including simple assault. The motions also attach an omnibus pretrial motion filed on behalf of Mr. Wise in the 2006 Columbia County prosecution, part of which was a motion for psychiatric examination (Geisinger motion Ex. E). Due to the granting of the habeas corpus motion and the guilty plea to simple assault, no hearing ever occurred with regard to the motion for psychiatric examination. All that occurred was that the defendant, Mr. Wise, alleged in his motion for psychiatric examination that he had “psychiatric problems” and a “mental illness.” The undersigned was only aware of the allegations of a mental illness, and never heard or saw any proof of the allegations.

To further ensure full disclosure, the undersigned ordered a transcript of Mr. Wise’s guilty plea hearing of September 11, 2007 in the Columbia County 2006 prosecution. This was done not because the undersigned remembered what occurred on that date, but only because the undersigned is aware that all criminal defendants are asked about mental illness as part of a standard guilty plea colloquy. As described in the order of February 24, 2014, until that transcript was produced, the undersigned had no awareness or memory of the nature of the mental illness from which Mr. Wise professed to suffer. The transcript reveals the simple, one word answer: “Bipolar.” Mr. Wise and his attorney professed that Mr. Wise had that illness under control. Even though the undersigned has read the transcript, he has no independent recollection of the guilty plea hearing or of any specific mental illness allegedly suffered by Mr. Wise, and that fact would not be known to the undersigned presently if it were not for the filing of the motions. The undersigned was present for the Commonwealth at Mr. Wise’s guilty plea in Columbia County on September 11,2007. Contrary to the unfounded statements by Geisinger’s counsel, the undersigned, as district attorney, did not conduct any investigation into the mental status of Mr. Wise. That was for the court to do at Mr. Wise’s guilty plea hearing of September 11, 2007, and the court conducted that colloquy. The relevant part of the transcript has been made a part of the record for consideration of the Motions, pursuant to the terms of the order of February 24, 2014 and the lack of any objection to the quoted portions of the transcript.

Mr. Wise pleaded guilty to third degree murder in Montour County and was sentenced on December 12, 2011 (Geisinger motion ex. J). The undersigned was never interviewed for the Montour County prosecution of Mr. Wise and did not testify at any juncture. The undersigned did not preside over any portion of that case (the undersigned was not sworn is as judge until January 2, 2012). The undersigned had no professional contact with the Montour County prosecution of Mr. Wise.

After the motions were filed, a hearing on the motions was conducted on January 24, 2014. At that hearing, although she was painfully evasive after repeated questions by the court, counsel for Geisinger admitted that the undersigned did not state that he had a “vivid memory” of the 2006 prosecution of Mr. Wise, despite counsel asserting those words in her brief. When pressed on what the undersigned could possibly be called upon to testify to in the present case, Geisinger counsel was again vague and evasive and gave no response of substance. The fact is that the undersigned was not involved in the Montour County prosecution for the murder out of which this civil action grew.

The hearing of January 24, 2014 also revealed that, as yet, there has been very limited discovery in the present case, and the defendants cannot know, at this time, whether the fact of Mr. Wise’s mental illness will be disputable, in good faith, or, conversely, whether there will be indisputable evidence of psychiatric treatment. During the hearing, the undersigned asked Geisinger counsel if Mr. Wise’s mental illness was going to be a disputed fact, and defense counsel responded in the affirmative, but provided no cogent response when the undersigned asked how they can answer that without having viewed his mental health treatment records.

The parties have both demanded a jury trial, therefore, the undersigned will not be the fact finder in this civil case.

Canon 3.C.(l)(b) of the Pennsylvania Code of Judicial Conduct requires disqualification of a judge where the judge “...served as a lawyer in the matter in controversy....” It is clear that the undersigned did not serve as a lawyer in this “matter,” whether the present lawsuit, or in the criminal prosecution of Mr. Wise which arose out of the subject of this lawsuit, i.e., the murder of Jessica L. Frederick,

Canon 3.C.(l)(a) requires disqualification of a judge where the judge has a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....” The undersigned has no personal bias or prejudice regarding any party to the present action.

Applying the language of Canon 3.C.(l)(a), the undersigned does not have any personal knowledge of disputed evidentiary facts concerning the present case. Geisinger’s counsel states that the undersigned has personal knowledge of Mr. Wise’s mental illness. The undersigned has never had any personal contact with Mr. Wise and has no personal experience regarding his alleged mental illness. Even professionally, in or out of court, while district attorney, the undersigned never reviewed medical or psychiatric records relating to Mr. Wise, never examined a witness regarding Mr. Wise’s alleged mental illness and never heard any such examination. The most that can be said is that the undersigned, at one time (since forgotten), heard Mr. Wise state during his guilty plea that he suffered from “bipolar,” and that, in his 2006 prosecution, Mr. Wise’s attorney alleged, as the plaintiff alleges in the present case, that Mr. Wise suffers from a “mental illness” and/or “psychiatric problems.” That does not amount to “personal knowledge.”

Beyond the lack of personal knowledge, it is premature for the defendants to assert that the fact of whether Mr. Wise suffered from a mental illness will be contested. Little or no discovery has occurred in the present case. Defense counsel cannot know whether they can contest that fact in good faith. They have not requested, received or reviewed any mental health records pertaining to Mr. Wise. For all defense counsel may know, their own clients’ medical records may contain mental health diagnoses for Mr. Wise. To assert recusal without any foundation in fact to determine if the fact will be disputed or disputable is another show of bad faith.

A justice of Pennsylvania Supreme Court was not required to recuse himself in an appeal of a defendant whose prior appeals were pending when the justice was the district attorney of Philadelphia County, even though the justice’s name was on the appellate brief as an attorney for the Commonwealth in the prior appeal in the same case. Commonwealth v. Abu Jamal, 553 Pa. 569, 720 A.2d 121 (1998). The party requesting recusal has the burden of proving bias, prejudice, unfairness, or personal knowledge of disputed evidentiary facts which raises a substantial doubt as to the judge’s ability to preside impartially. Abu Jamal, 720 A.2d at 89.

Under the existing practice in Pennsylvania, recusal has been a matter of individual discretion or conscience and only the jurist being asked to recuse himself or herself may properly respond to such a request. Commonwealth v. Jones, 541 Pa. 351, 353, 663 A.2d 142, 143 (1995), citing: Commonwealth v. O’Shea, 523 Pa. 384, 407, 567 A.2d 1023, 1034 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990); In re Crawford’s Estate, 307 Pa. 102, 108-09, 160 A. 585, 587 (1932).

The burden is on the party seeking disqualification to prove bias: Commonwealth v. Council, 491 Pa. 434, 421 A.2d 623 (1980). A judge’s refusal to recuse herself or himself will be overturned only if there has been an abuse of discretion. Crawford’s Estate, supra. The question is one which is particularly ill suited for review by appellate courts. Thus, the issue of recusal is addressed particularly and peculiarly to the conscience and sound discretion of the judge. It is his inquiry. Sprague v. Walter, 22 Pa.D. & C.3d 564, 575 (Pa. Com. Pl. 1982) (Judge had been outspoken in criticism of a litigant/newspapers’ irresponsible journalism, but that did not disqualify him from defamation case against newspaper).

It has been held that, to be sufficient for disqualification, abias must be apersonal one arising outside the four comers of the courtroom. See: Hodgson v. Liquor Salesmen’s U. Loc. No. 2 of State of N.Y., 444 F.2d 1344 (2nd Cir. 1971); U.S. v. Bray, 546 F.2d 851 (10th Cir. 1976). Any alleged bias and prejudice must not arise out of evidence presented at trial or out of an earlier proceeding or from the fact that the judge has definite views on the law or from an impersonal prejudice which goes to the judge’s background, associations, learnings or experience. Com. v. Lawrence, 211 Pa. Superior Ct. 279, 239 A.2d 209 (1967); U.S. v. Gilboy, 162 F. Supp. 384 (M.D. Pa. 1958). Adverse rulings in a previous proceeding, whether or not correct, and the judge’s statements of reasons, do not constitute a bias requiring recusal and are insufficient to warrant a disqualification. U.S. v. Bray, supra. A “trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned.” Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973).

In Commonwealth v. Darush, 459 A.2d 727 (Pa. 1983), it was held that a person who prosecuted a particular defendant in a criminal case as a district attorney is not disqualified from adjudicating a later and separate case involving that same defendant as a judge. It was also held that a trial judge need not recuse himself from conducting a criminal jury trial of a defendant, where he allegedly made disparaging remarks regarding the defendant when he was DA, but that it would not be appropriate to conduct sentencing.

Applying Danish, supra, to the present case, a jury will be determining both liability and damages, leaving no fact finding to the undersigned, such as would occur at a criminal sentencing. The only evidence the undersigned heard was in the courtroom on September 11, 2007 at Mr. Wise’ guilty plea in the 2006 Columbia County prosecution, when Mr. Wise stated that he suffered from “bipolar,” and he and his attorney immediately said it was under control, all in answer to a guilty plea colloquy posed by the honorable Thomas A. James, Jr., P.J. As stated, the undersigned does not have an independent recollection of that event. All the undersigned recalls regarding the mental state of Mr. Wise is that his attorney alleged a mental illness, the same fact alleged by the plaintiff in the present case. The undersigned realizes that these are presently only allegations.

Despite the hyperbolic and inaccurate descriptors posited by Geisinger’s counsel, the undersigned has no “vivid memory” (Geisinger bf., p. 4) of the facts behind Mr. Wise’s criminal actions in 2006, and has no memory of, and had no exposure to, the 2011 murder prosecution of Mr. Wise in Montour County. The undersigned was no more “intimately involved” (Geisinger bf., p. 3) in the 2006 prosecution of Mr. Wise than the other approximate 1,100 cases he prosecuted that year, or the approximate 8,800 cases his office prosecuted in his eight (8) years as district attorney.

Although Geisinger counsel, in her brief, cited media attention paid to the 2006 Columbia County prosecution, she presented absolutely no evidence of media coverage, in her original brief below, at p. 10, Geisinger counsel asserts that the undersigned, as district attorney in 2006, “had access to relevant information, not publically available, that tends to demonstrate, or refute Wise’s mental illnesses....” That is pure speculative fluff and irresponsible to assert. The undersigned did not subpoena or otherwise obtain any mental health records pertaining to Mr. Wise, therefore, the undersigned did not have any such information.

After the evidentiary record was closed on motions at the end of the hearing on January 24, 2014, the Geisinger defendants saw fit to serve a “supplemental brief’ which was received by the undersigned on March 6, 2014. Counsel for the Geisinger defendants attached an article from a local newspaper which was allegedly published on March 2, 2014. The article was not entered into evidence, should not be considered for purposes of the motions and, as such, was improper to present for consideration. Its authenticity and accuracy have not been subject to cross-examination, and there has been no opportunity for argument regarding relevance and admissibility.

Nonetheless, in continuing to be open and candid, the undersigned will analyze the effect of the article. Consideration of the article does nothing to support the motions. The article is a typical newspaper report, which summarizes the allegations in the present case, which remain allegations. The article eventually summarizes the 2006 Columbia County prosecution, the victim’s testimony during which she professed a lack of memory, and the plea agreement to simple assault. The article also notes that the defendants had moved to recuse the undersigned due to the undersigned being the prosecutor of the 2006 Columbia County case against Mr. Wise. Of course, that aspect of the article is of the defendants’ own doing through the filing of the motions.

In its supplemental brief, the Geisinger defendants continued with their assertions of unfounded and unproven facts and suppositions. In the supplemental brief, the Geisinger defendants state: “The publication of this article refreshes the public’s memory about Wise’s previous violence and judge Norton’s role as prosecutor for that incident.” (Suppl.). Bf., p. 2). “Public memory,” in itself, is not an element to be considered for purposes of a recusal motion. The only consideration is whether a significant minority of the lay community could reasonably question the court’s impartiality. Darush, 459 A.2d at 732. Defense counsel do not speak for the community. Defense counsel are in no position to interpret and present “public memory” as fact. The article appeared because of the filing of the motions. A judge cannot be required to recuse himself or herself in present litigation simply because he participated in prior litigation involving a witness in the present litigation, or because the prior litigation was allegedly notorious.

The supplemental brief also states: “The juxtaposition of the two cases of violence gives the impression to the reader that an opportunity to protect the public was missed when a plea agreement was reached in the 2006 attack that reduced the charge to simple assault.... But moving defendants can reasonably deduce that there was significant criticism of the plea agreement at the time it was offered in the relatively small tight-knit and largely rural community which was unaccustomed to murder.” (Suppl. bf., p. 2-3). The Geisinger defendants’ statement of claiming to be able to “deduce” facts out of thin air is overreaching. Again, defense counsel presumes to be the interpreter of public opinion in the absence of any evidence of the same, whatsoever. In fact, the undersigned feels no pressure or regret regarding the plea agreement in the 2006 Columbia County prosecution of Mr. Wise. The undersigned recollects no public outcry or complaints regarding his service as prosecutor in the 2006 Columbia County prosecution of Mr. Wise. This was probably because there was no choice in accepting the plea agreement: The Commonwealth, through the undersigned, went through a full hearing on the habeas corpus motion, the victim professed no memory of the identify of the perpetrator who inflicted her wounds and the felony counts were dismissed. Contrary to the dramatic, but false, facts deduced by Geisinger counsel in her briefs, the undersigned did not “make a determination as to Wise’s mental state...” (Suppl. bf., p. 3) prior to negotiating the plea agreement. In fact, it was up to the court at the time, through a “guilty plea colloquy” to make a record that the defendant Mr. Wise’s mental state was sufficiently stable to enter a knowing and voluntary plea. Contrary to the supplemental brief, the undersigned took no “actions ... to ensure that Wise was of sound mind to reach a plea agreement...” (Suppl. bf., p. 4). Whether Mr. Wise continued to pose “a danger to the community” was not in play at that point and was not an element of the misdemeanors which remained after the felonies were dismissed. Without the victim’s testimony, the Commonwealth would not even have been able to sustain its burden of proof on the simple assault count, therefore, if the defendant, Mr. Wise, was going to admit to being the perpetrator in a guilty plea, that was the only option to secure a conviction. Whether Mr. Wise was, or was not, a danger to the community did not change that conclusion.

In summary regarding the argument in the supplemental brief, the Geisinger defendants are conjuring up facts which do not exist, and taking those conjured facts and professing to be the articulator of public sentiment. There was no public outcry in 2007 when Mr. Wise pled guilty to simple assault, the undersigned feels no threat of a public outcry, and the undersigned did not investigate or have any detailed knowledge of Mr. Wise’s mental state or illness. As to plaintiffs’ counsel’s alleged statement in the article, and his alleged link between the 2006 assault and the 2011 murder, plaintiffs’ tactics are up to the plaintiffs and their counsel. Plaintiffs’ possible choice to try to link the two does not make the undersigned a material witness in the present civil action. Of record in the present case is plaintiffs’ counsel’s statement that the 2011 Montour County murder had nothing to do with the 2006 Columbia County prosecution (1/24/14 N.T. 12). A lawyer may say any number of things to the press, but he or she is bound by what he or she states on the record in court.

The Geisinger defendants did not assert that they would seek to call the undersigned as a witness until, at oral argument on a demurrer, the undersigned disclosed his inclination to allow plaintiffs’ punitive damages claim to continue. That was a clear bad faith tactical move to attempt to remove the undersigned and “judge shop” for a jurist who might dismiss the punitive damages claim. This harkens to the language of Sprague, supra, in which the court stated: “...the petition for recusal ...are replete with error, exaggeration and distortion and improper and inaccurate innuendo... and ... has ... been adopted with a vengeance by defendants and defendants’ counsel for the purpose of achieving a disqualification.” Sprague, 22 Pa. D. & C.3d at 570.

The issues in the present case will be the standard professional negligence issues: standard of care, causation and damages, and the undersigned will not be the fact finder on those issues. The motions were referred to the honorable Thomas A. James, Jr., P.J., as requested in the motions, and he has declined to intervene. The bottom line is: the undersigned sincerely believes that he can fairly and objectively preside over the present action without bias, prejudice, unfairness, or partiality. The undersigned knows that the present case is about the standard of care owed, or not owed, by the defendants to the plaintiffs, causation and damages, and is not a re-trial of Westley Wise for the 2006 simple assault for which he was convicted in Columbia County in 2007. The present case arises out of a murder in Montour County in 2011 and a question of professional negligence.

For the foregoing reasons, the motions shall be denied.

ORDER

And now, to-wit, on this 12th day of March, 2014, upon consideration of the motion for recusal or reassignment portion of the “motion for recusal or reassignment of the honorable Gary Norton and motion for enlargement of time to plead over filed by defendants, Geisinger Medical Center, MichaelH. Fitzpatrick, M.D. andRichardT. Davies, Jr., PA-C,” filed on November 27, 2013, and “defendants Alley Medical Center, David Y. Go, M.D., and Kyle C. Maza, PA-C motion to join and adopt [Geisinger’s motion for recusal]” filed December 2, 2013, on the basis of the reasons set forth in the foregoing opinion, said motions are hereby denied.

      . That would include the proposition that the undersigned is not disqualified because of the opinions expressed herein or in the courtroom.

      . It cannot be overemphasized that there is no evidence of record that the 2006 Columbia County prosecution was especially notorious. There is absolutely no evidence in the present case of the content of any 2006-2007 news accounts of the 2006 prosecution of Mr. Wise. It is acknowledged by the undersigned that there were news accounts, but the undersigned has no recollection of any accounts that were critical of the undersigned.


author: COX, J.,

text:
    Clark v. Baxter

      Phillip L. Clark, Jr, for plaintiffs.

      Carmen F Lamancusa, for defendants.
    March 14, 2014
   COX, J.,

Before the court for disposition are the preliminary objections filed on behalf of the defendant Hermitage Direct Jewelry Outlet, Inc., which argues that Lawrence County is the improper venue for the plaintiffs’ claims as defendant Hermitage Direct Jewelry Outlet, Inc. has its principal place of business in Mercer County and does not conduct business in Lawrence County. Defendant Hennitage Direct Jewelry Outlet, Inc. also asserts that the plaintiffs’ amended complaint lacks specificity as it merely extends the claims against Cindy Allegretto d/b/a Direct Jewelry Outlet in Count V to defendant Hermitage Direct Jewelry Outlet, Inc. in Count VI.

The plaintiffs’ amended complaint avers the following: defendant Ashley Nicole Baxter was employed in the plaintiffs’ home located at 510 Moore Avenue, New Castle, Lawrence County, Pennsylvania, as a caretaker and she took possession of items belonging to the plaintiffs, which included the following: 1. a 14 carat gold invisible set diamond cross, 2. a 24-inch 14 carat gold 2.0 millimeter snake chain, 3. a 6 carat 14 carat gold diamond baguette bracelet, 4. a rolex style bracelet 4 carat round diamonds pave set, 5. a 10 carat gold 2 carat 16 round/ baguette diamond heart pendant, 6. a 14 carat gold 20-inch twisted sparkle chain, 7. a necklace with multiple diamonds and a teardrop in the middle, 8. a 14 carat gold Seiko watch, 9. 2 women’s gold watches, 10. a 14 carat gold 12 millimeter 8-inch bola bracelet, 11. a 14 carat gold 24-inch 2.5 millimeter rope, 12. a 14 carat gold 24-inch H.M.F. 6 millimeter chain, 13. a 14 carat gold 24-inch Marwise chain 3.5 millimeters, 14. a 14 carat gold 24-inch woven link chain 5 millimeters, 15. a 14 carat gold woven mesh chain 4.5 millimeters, 16. a 14 carat gold two tone bracelet fancy, 17. a 1.5 round brilliant cut diamond G,H color SI1/SI2 clarity range set in 14 carat gold mounting with baguette and round diamonds, 18. a 14 carat gold wedding band with diamonds and 19. a single teardrop diamond. Defendant Baxter then transferred possession of item 6 to defendant Greek’s Gold in return for cash on May 18, 2012. She then sold items 7 and 10 to defendant New Castle Gold on May 21, 2012. Defendant Baxter returned to New Castle Gold on May 31, 2012, where she transferred items 8, 12, 13 and 14 in return for cash. Subsequently, she sold the remaining items to defendant Justin Allen Cubamey, who was intending to sell those items for cash. On May 22, 2013, defendant Cubarney sold item 9 to Greek’s House of Gold for cash. Defendant Cubamey then sold items 3 and 4 to defendant Hermitage Direct Jewelry Outlet, Inc. on June 13, 2012, and he did the same with item 17 on June 18, 2012. Defendant Cubamey returned to defendant Hermitage Direct Jewelry Outlet, Inc. on June 25, 2012, to transfer items 5, 15 and 16 for cash. Also on July 3, 2012, defendant Cubamey transferred item 18 to defendant Hermitage Direct Jewelry Outlet, Inc. in return for cash.

Pennsylvania State Trooper Randolph Guy questioned defendant Baxter concerning the jewelry on July 6, 2012. She admitted to selling the jewelry in the manner as set forth previously. On July 11, 2012, defendant Cubamey was taken into custody and interviewed by Trooper Guy, in which he admitted to receiving items 3, 4, 5, 15, 16, 17, 18 and 19 from defendant Baxter and he sold the same to defendant Hermitage Direct Jewelry Outlet, Inc. The plaintiffs subsequently filed suit against all of the aforementioned defendants. The complaint included a claim of conversion against Cindy Allegretto d/b/a Direct Jewelry Outlet and a claim for vicarious liability against Direct Jewelry Outlet, Inc. and Direct Jewelry Outlet Franchising Company, LLC. On September 6, 2013, the plaintiffs filed an amended complaint asserting similar claims. Defendant Hermitage Direct Jewelry Outlet, Inc. has filed preliminary objections to the amended complaint asserting that this court is the improper venue for the claims asserted against it by the plaintiffs and the amended complaint lacks specificity as it merely extends the claims set forth in Count V against Cindy Allegretto d/b/a Direct Jewelry Outlet to defendant Hennitage Direct Jewelry Outlet, Inc. in Count VI. It is important to note that the plaintiffs agreed at oral argument that they would amend their complaint to remedy the issue concerning lack of specificity. As a result, the defendant’s preliminary objection concerning lack of specificity is sustained and the plaintiff is granted leave to amend their amended complaint.

The defendant claims Lawrence County is the improper venue for any claims against it as it is an Ohio Corporation with its principal place of business at 2560 East State Street, Hermitage, Mercer County, Pennsylvania, and does not conduct business in Lawrence County.

In general, proper venue is governed by Pa.R.C.P. No. 1006, which states:

(a) Except as otherwise provided by subdivisions (a.l), (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which
(1) The individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, or
(2) The property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property...
(b) Actions against the following defendants, except as otherwise provided in subdivision (c), may be brought in and only in the counties designated by the following rules: political subdivisions, Rule 2103; partnerships, Rule 2130; unincorporated associations, Rule 2156; corporations and similar entities, Rule 2179.
(c) (1) Except as otherwise provided by paragraph (2), an action to enforce a joint or joint and several liability against two or more defendants, except actions in which the Commonwealth is a party defendant, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivisions (a) or (b).

Pa.R.C.P. No. 2179 states:

(a) Except as otherwise provided by an Act of Assembly, by Rule 1006(a.l) or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of which the cause of action arose, or
(5) a county where the property or a party of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.

Detennining whether venue is proper is within the discretion of the trial court, but great deference is given to the plaintiff’s choice of forum. Gilfor ex rel. Gilfor v. Altman, 770 A.2d 341, 343 (Pa. Super. 2001) (citing Masel v. Glassman, 456 Pa. Super. 41, 689 A.2d 314, 316 (1997)). The defendant retains the burden of asserting a challenge to the plaintiff’s choice of venue. Id. In cases where the plaintiff is trying to assert joint and several liability against multiple defendants venue is proper in any county in which venue lies against any one of the defendants, Id., 770 A.2d at 344. “The policy behind the rule allowing the action to be brought in any county in which venue is proper against any one of the defendants is to avoid multiplicity of suits.” Zappala v. Brandolini Property Management, Inc., 589 Pa. 516, 531, 909 A.2d 1272, 1280 (2006).

In the current case, the plaintiffs filed suit in Lawrence County as several of the transactions or occurrences transpired here. First, defendant Baxter stole the plaintiffs’ jewelry from their residence at 510 Moore Street, New Castle, Lawrence County, Pennsylvania. Defendant Baxter also resides in Lawrence County as her address is 15 High Street, New Castle, Pennsylvania, as does defendant Cubamey, who is currently a resident at Lawrence County Corrections. Moreover, Greek’s House of Gold is located in New Castle, Pennsylvania, and its owner Greek Devasil resides in New Castle, Pennsylvania. Defendant Michael Ponziani and his business New Castle Gold Company are also located in New Castle, Pennsylvania. The only defendant, which does not have its principal place of business in Lawrence County is Hermitage Direct Jewelry Outlet, Inc., which is an Ohio Corporation with its principal place of business at 2560 East State Street, Hermitage, Mercer County, Pennsylvania. Furthermore, defendant Baxter and defendant Cubamey sold some of the jewelry to Greek’s House of Gold and New Castle Gold Company for cash. Those transactions occurred in Lawrence County. The only transactions that occurred outside of Lawrence County was defendant Cubamey transferring some of the jewelry to defendant Hermitage Direct Jewelry Outlet, Inc. in Mercer County.

Although, defendant Hermitage Direct Jewelry Outlet, Inc. is located and conducts business in Mercer County, many of the events from which the current claims arise occurred in Lawrence County. The jewelry was taken from the plaintiffs’ residence, which is located in Lawrence County and several pieces of that jewelry were transferred to Greek’s House of Gold and New Castle Gold Company, which conduct business in Lawrence County. It is apparent that Lawrence County is the proper venue for all of the defendants in this matter as a majority of the events transpired in Lawrence County and all of the defendants, excluding defendant Hermitage Direct Jewelry Outlet, Inc., either reside, conduct business or have their principal place of business in Lawrence County. Furthermore, the transactions are so closely related that it would be a waste of resources to transfer venue for the claims against defendant Hermitage Direct Jewelry Outlet, Inc. to Mercer County and permit the claims against the other defendants to remain in Lawrence County. The policy behind Pa.R.C.P. No. 1006(c)(1) is to avoid multiplicity of suits, which is the outcome that would occur if this court transferred venue of the cause of action against defendant Direct Jewelry Outlet, Inc. to Mercer County. Therefore, defendant Hermitage Direct Outlet, Inc.’s preliminary objection concerning improper venue is overruled.

For the reasons set forth in this opinion, defendant Hermitage Direct Outlet, Inc.’s preliminary objection concerning improper venue is overruled. However, the defendant’s preliminary objection for lack of specificity is sustained and the plaintiffs are granted leave to amend their amended complaint.

ORDER OF COURT

Now this 14th day of March, 2014, this case being before the court on February 24, 2014, for oral argument on the preliminary objections filed by the defendant Hermitage Direct Jewelry Outlet, Inc., with both parties appearing through their counsel, the plaintiffs Agnes L. Clark and Jack R. Clark, her husband, represented through counsel, Phillip L. Clark, Jr., Esquire and the defendant Hermitage Direct Jewelry Outlet, Inc., represented through counsel, Carmen F. Lamancusa, Esquire, and after consideration of the argument and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the preliminary objection for improper venue is hereby overruled.

2. As stipulated to at oral argument, the preliminary objection for insufficient specificity in the amended complaint is hereby sustained.

3. Counsel for the plaintiffs shall have twenty (20) days from the date of the receipt of this order of court to file an amended complaint.

4. The prothonotary is directed to serve a copy of this order of court upon counsel of record, Phillip L. Clark, Jr., Esquire and Carmen F. Lamancusa, Esquire.

      . The amended complaint failed to set forth a unit of measurement for this item.


text:
    Innovative Construction, Inc. v. Jet Express, Inc.

      Carmen F Lamancusa, for plaintiffs.

      Jeffrey T. Criswell, for defendants.
    March 17, 2014
   COX, J.,

Before the court for disposition are the preliminary objections to plaintiffs’ complaint filed on behalf of the defendants Jet Express, Inc. and Kevin Parsley contending that the plaintiffs’ complaint is legally insufficient as Kevin Parsley was not a trespasser as is required for the claim of civil trespass and he had no duty to avoid the power line as it was not in compliance with the applicable code. The defendants also assert a demurrer claiming that the plaintiffs utilized an improper method of calculating damages as the proper measure of damages is the cost of repairs necessary to restore the property to its former condition.

The complaint avers the following facts: The plaintiff Innovative Construction, Inc. (hereinafter “Innovative Construction”) is a Pennsylvania Corporation that owns a motel and restaurant, which is leased by plaintiff Caravan II Albergo, LLC, defendant Kevin Parsley is employed as a driver for defendant Jet Express, Inc. On December 13, 2012, defendant Parsley was operating a 2004 Blue International tractor-trailer, which was owned by defendant Jet Express. He was traveling to a Lowe’s Home Improvement store when he mistakenly began driving on State Route 422, instead of State Route 224. He turned into the parking lot, owned by plaintiff Innovative Construction and utilized by the patrons and guests of the motel and restaurant in an attempt to rest. At that time, the vehicle owned by defendant Parsley collided with an electrical service line causing the same to be detached from the southwestern comer of a cement block building that was constructed between buildings owned by plaintiff Innovative Construction and Innovative Associates, Inc. Defendant Parsley infonned Andrew Menichino, manager for the plaintiffs, concerning these events. Mr. Menichino then explained the same to Lieutenant Michael Mrozek of the Union Township Police Department. The police officer also spoke with defendant Parsley, who admitted to striking the electrical service line. Due to the collision, the electrical service line was pulled down and the bricks on the building were separated. The plaintiffs claim that due to that incident they sustained monetary damages to the building and they are requesting the reasonable cost of repairs in the amount of $38,840.00 as stated in an estimate by James Hooks Property Management, which is attached to the plaintiffs’ complaint.

As a result of this incident, the plaintiffs filed a complaint seeking damages for claims of civil trespass and negligence. In response, the defendants filed preliminary objections to plaintiffs’ complaint asserting that the plaintiffs’ complaint is legally insufficient as defendant Parsley was not a trespasser as is required by the claim of civil trespass and the plaintiff failed to plead a cause of action for negligence as defendant Parsley did not have a duty to avoid the electrical service line because it was not up to code. The defendants also claim that the complaint is legally insufficient as the plaintiffs utilized an improper measure of damages. The plaintiffs stipulated that there is no claim for civil trespass as the parking lot was to be utilized by the general public in accordance with their business. Therefore, the court grants the defendants’ first preliminary objection and paragraph 13(f) of the plaintiffs’ complaint is dismissed.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317,321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (2005) (citations omitted). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002) (citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987)). “A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of the pleading.’” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (quoting Black’s Law Dictionary 299 (6th ed. 1991)). The court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id.

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)). In a negligence action, the plaintiff must prove that the defendant owed the plaintiff a duty of care and that duty was breached. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 655 (Pa. Super. 2002) (citing Ney v. Axelrod, 723 A.2d 719, 721 (Pa. Super. 1999)). The court must examine whether the defendant has an obligation for the benefit of that particular plaintiff and if that does not exist or had not been breached, there can be no cause of action for negligence. Minnich v. Yost, 817 A.2d 538, 541 (Pa. Super. 2003) (quoting J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 584 (Pa. Super. 1997)). A plaintiff’s negligence claim is legally insufficient if he or she fails to state facts upon which the law imposes a duty upon the defendant in favor of that plaintiff. Boyce v. U.S. Steel Corp., 446 Pa. 226, 230,285 A.2d 459, 461 (1971) (citing Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Neyman v. Soutter, 205 Pa. Super. 8, 205 A.2d 685 (1964)). The existence of a duty is based upon a question of fairness, an inquiry which involves weighing the relationship of the parties, the nature of the risk and the public interest. Campo v. St. Luke’s Hosp., 755 A.2d 20, 24 (Pa. Super. 2000) (quoting Brandjord v. Hopper, 455 Pa. Super. 426, 429-431, 688 A.2d 721, 723 (1997)).

The defendants cite to 52 Pa. Code § 63.23, which states:

Overhead and underground public utility equipment or facilities and crossings of the wires or cables of every public utility over or under the facilities of other public utilities, cooperative associations or electric utilities — including parallel or random installation of underground electric supply and communication conductors or cable — shall be constructed and maintained in accordance with safe and reasonable standards as set forth in the National Electrical Safety Code, 1981 edition.

The National Electrical Safety Code states that the clearance requirement for communication conductors and cables must be fifteen and a half feet over driveways, parking lots and alleys. Table 232-1 of the 2002 National Electric Safety Code.

The defendants state that the plaintiffs’ complaint is devoid of any reference that the electrical service wires were constructed at a height in excess of fifteen and a half feet, which would comply with the 2002 National Electric Safety Code. In fact, the defendant asserts that the service wires had to be lower than the standard in the 2002 National Electric Safety Code as they were struck by the tractor trailer, which has a height of thirteen and a half feet. At oral argument, the plaintiffs stated that the wires were beyond the parking lot area and are not subject to the code sections cited by the defendants. However, the court cannot address the merits of the defendants’ argument at this time as it assumes facts that are not averred in the plaintiffs’ complaint. In its pleading, the plaintiffs merely assert that defendant Parsley was operating his tractor trailer in reverse in the plaintiffs’ parking lot when he struck the electrical service line causing it to be pulled from the existing southwest comer of a cement block building that was constructed between buildings owned by Innovative Constmction and Innovative Associates, Inc. which resulted in damage to the plaintiffs’ motel and restaurant. The complaint is devoid of any reference concerning the height and location of the service wire or the height of the tractor-trailer. As a result, those are factual issues to be addressed at a later stage of the proceedings after discovery has been completed. The plaintiffs’ complaint is legally sufficient as it sets forth that defendant Parsley negligently stmck the electrical service wire breaching his duty to avoid the same. Therefore, the defendants’ preliminary objection in the nature of a demurrer regarding a failure to plead that defendant Parsley had a duty of care is overruled.

Next, the defendants claim that the plaintiffs failed to utilize the proper measure of damages when dealing with damage to property. The measure of damages in cases where the property has not totally lost its value is the cost of repairs. Kirkbride v. Lisbon Contractors, Inc., 385 Pa. Super. 292, 298, 560 A.2d 809, 812 (1989) (citing Rabe v. Shoenberger, 213 Pa. 252, 62 A. 854 (1906); Wade v. S.J. Groves & Sons Co., 283 Pa. Super. 464, 424 A.2d 902 (1981)). If the damages exceed the cost of the property then the damages are the value of the property. Id. If the damage is permanent then the damages are the decrease in market value of the property. Id. (citing Bumbarger v. Walker, 193 Pa. Super. 301, 164 A.2d 144 (1960)).

In the current matter, the plaintiffs have averred that the cost of repairing the electrical service wire is $38,840.00 as stated in an estimate provided by James Hooks property management that is attached to the complaint. The estimate indicates that the price quoted is the cost to repair the electrical service wire and there is no mention of returning the same to code. Again, the defendants have extrapolated that the estimated repair cost includes the expenses of returning the electrical service to code, but the court is not permitted to consider such evidence or arguments at this time as it is constrained to reviewing the plaintiffs’ claims based upon the averments in the complaint. The plaintiffs have adequately averred in their complaint that they calculated their request for damages by stating the reasonable costs of repair to the electrical service wire in accordance with the applicable case law. Therefore, the defendants’ preliminary objection in the nature of a demurrer concerning the plaintiffs’ calculation of damages is overruled.

For the reasons set forth in this opinion, the defendants’ preliminary objections are overruled. It is important to note that the plaintiffs have stipulated to withdraw their claim for civil trespass and, as a result, paragraph 13(f) of the plaintiffs’ complaint is dismissed.

ORDER OF COURT

Now this 17th day of March, 2014, this case being before the court on February 24, 2014, for oral argument on the preliminary objections filed by the defendants, with both parties appearing through their counsel, the plaintiffs Innovative Construction, Inc., a Pennsylvania Corporation and Caravan II Albergo. LLC represented through counsel, Carmen F. Lamancusa, Esquire and the defendants Jet Express, Inc, and Kevin Parsley, represented through counsel, Jeffrey T. Criswell, Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. By stipulation of counsel, any claim for civil trespass is hereby withdrawn and the first preliminary objection to paragraph 13(f) is hereby sustained and paragraph 13(f) is stricken from the complaint.

2. In accordance with the attached opinion, the second preliminary objection being a demurrer to Count II — negligence and the third preliminary objection in the nature of a demurrer to the proper measure of damages are hereby overruled.

3. Defendant shall have thirty (30) days after receipt of this order of court to file a written answer to the complaint filed by the plaintiffs.

4. The prothonotary is directed to serve a copy of this order of court upon counsel of record, Carmen F. Lamancusa, Esquire and Jeffrey T. Criswell, Esquire.


author: HIGGINS, J.,

text:
    Fliegel v. Fliegel

      Connie J. Merwine, for plaintiff.

      Barry J. Cohne, for defendant.
    March 26, 2014
   HIGGINS, J.,

Carol E. Fliegel (“wife”) and Michael A. Fliegel (“husband”) were married on February 4, 1993 in New York City, New York. No children were bom from the marriage. A complaint in divorce was filed in Potter County, Pennsylvania on July 8, 2009. The Potter County action was transferred to this court by stipulation of the parties on or about November 13, 2012. The parties separated in 2009, however, the parties continued to live together until husband moved out of the marital residence in March 4, 2012. On April 10, 2012 husband filed a complaint for support seeking alimony pendent lite (“APL”) and spousal support from wife. After a conference, wife was ordered to pay APL to husband in the amount of $3,171.00 plus $317.00 in arrears. Thereafter, husband filed for a modification on February 15,2013, seeking an extension of APL due to the ongoing divorce action. After a support conference was held, a support master’s (“master”) hearing was requested and held on October 8, 2013. On November 12, 2013, an order of court was filed requiring wife to pay $2,553.00 monthly to husband for the period of May 17, 2012 until May 30, 2013 and the sum of $2,990.00 thereafter. APL was scheduled to terminate on April 9, 2014, or sooner upon final decree of divorce. On November 22, 2013, wife filed timely exceptions to the master’s findings. The matter was praeciped for oral argument and the court heard arguments on February 3, 2014.

DISCUSSION

When evaluating the merits of the parties’ exceptions, we must first examine the master’s report. Our function is to review the master’s factual findings to determine if the recommendations are appropriate. Ewing v. Ewing, 843 A.2d 1282, 1286 (Pa. Super. 2004) (citation omitted). In Pennsylvania, a “master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003). However, a master’s report “is advisory only...and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome.” Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000) (citation omitted). However, we will affirm the master if his recommendations are supported by the record.

Wife filed exceptions to the master’s support recommendations contending that the master erred by not finding a change of circumstances when husband inherited a large sum of money and assets from his mother. Wife argues that when husband requested an extension of support. After learning that husband inherited a large sum of money from his mother, wife immediately filed for a modification of support and she requested that husband’s award of APL be terminated.

When a party is seeking to modify an existing support order, the moving party has the burden of proving by competent evidence that a material and substantial change in circumstances has occurred. Samii v. Samii, 847 A.2d 691 (Pa. Super. 2004). Wife claims husband had a change in circumstances based on an inheritance he received from his mother.

APL is “an order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.” 23 Pa. C.S.A. § 3103. APL “is designed to help the dependent spouse maintain the standard of living enj oyed while living with the independent spouse.” Litmans v. Litmans, 673 A.2d 382, 389 (Pa. Super. 1996) (citation omitted). “APL is based on the need of one party to have equal financial resources to pursue a divorce proceeding when, in theory, the other party has major assets which are the financial sinews of domestic warfare.” Id., at 388 (citation omitted). Therefore, our focus should be on the ability of the individual who receives the APL during the course of the litigation to defend her/himself.

In the master’s findings he noted that husband was the owner of a rental property producing income of $2,400.00 per month, husband owns an investment account with a balance of $180,000.00 which has since been reduced to $100,000.00 due to his purchase of a $93,000.00 Porsche. [Master’s findings, submission date November 7, 2013 (master’s findings)] The master also found that husband spends as much for food as an average family of three and spends $2,100.00 per year on martial arts lessons. [Master’s findings] The master concludes that it is difficult to consider husband as financially dependent of unable to continue with the divorce proceedings with his own resources. [Master’s findings]

In her request for modification, wife claims that husband no longer needs APL to have equal resources to pursue the divorce proceeding. While the master did not find a change in circumstances when husband filed for an extension of APL, we find that he did have a change of circumstances for the better. In requesting a modification of support, the moving party has the burden of proving by competent evidence that a material and substantial change in circumstances has occurred. In his findings, the master stated that husband represented that he made $6,000.00 when his tax returns showed that he earned $25,563.00 in dividends. Husband knew or should have known that he underestimated his earnings, yet he did not report any additional income to domestic relations. Instead of reporting the additional earnings, husband filed a request for modification.

We are concerned that husband recently bought a $93,000.00 Porsche and he is claiming that he needs and extension of APL due to the ongoing divorce action. [Notes of testimony, October 8, 2013, at p. 48, 50 (hereinafter referred to as N.T.)] Husband also signed the request for modification, i.e. an extension of APL, under penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. At the October 8, 2013, hearing husband did not answer a direct question by wife’s counsel as to whether he provided information with regard to dividends he received. [N.T., p. 52] Upon objection by husband’s counsel the master sustained the objection on relevance grounds. We believe that the issue was relevant for the purposes of a modification petition, not only because the petitioner is signing under penalties of 18 Pa. C.S. § 4904, but that the parties have a continuing duty to report changes affecting support under 23 Pa. C.S.A. §4353.

The award of APL is within the sound discretion of the court and will not be disturbed absent abuse of discretion. Litmans v Litmans, 673 A.2d 382, 388 (Pa. Super. 1996) (citation omitted). Since APL is designed to help the dependent spouse meet the standard of living established during the marriage and allow him to defend himself in the divorce action, we believe that husband’s APL should be terminated as of the date wife filed her petition for modification on May 30, 2013. The record demonstrates that husband’s standard of living has increased and he is able to defend himself in the divorce action. Husband’s circumstances changed; he has additional income which was not reported to domestic relations and husband testified to this. Accordingly, this exception is granted,

Finally, wife believes the master erred in mandating the payment of the first $250.00 of husband uninsured medical expenses when she pays for husband’s medical insurance. In reviewing the entire history of this matter, we find there has never been an obligation on wife to pay the first $250.00 of husband uninsured medical expenses. We believe it was a typographical error to include such language in the recommendation. Hence, wife’s exception will be granted.

ORDER

And now, this 26th day of March 2014, after consideration of defendant’s exceptions to the master’s recommendations, it is hereby ordered as follows:

1. Defendant’s exception alleging that plaintiff is not entitled to an extension of Alimony Pendente Lite (APL) is granted.
2. Defendant’s exception alleging that she is entitled to a credit dating back to the original filing of APL is granted. It is ordered that plaintiffs APL shall be terminated as of the date of filing for a modification on May 30, 2013.
3. Defendant’s exception that the master erred in requiring defendant to pay the first $250.00 ofhusband’s uninsured medical expenses is granted.
4. The remainder of defendant’s exceptions are denied.

      . A final decree of divorce was entered on March 7, 2014.