author: SPRECHER, J.,

text:
    Angino & Rovner, P.C. v. Sovereign Bank, N.A.

      C.P. of Berks County,
    No. 13-1563

      Richard G. Angino, for plaintiffs.

      Walter Weir, Jr, for defendants.
    May 13, 2014
   SPRECHER, J.,

Plaintiffs appeal the orders dated February 28, 2014, and February 19, 2014, which sustained defendants’ preliminary objections and dismissed plaintiffs’ amended complaint with prejudice and the order dated June 25,2013, signed by the Honorable Jeffrey L. Schmehl which sustained the preliminary objections of a third defendant, Cushman & Wakefield National Corporation, and . dismissed the complaint against it with prejudice. This opinion is filed pursuant to Pa. R.A.P. 1925 and will address the orders of the undersigned. Judge Schmehl is no longer a Pennsylvania judge of the court of common pleas, so there will be no opinion regarding the issues related to his order.

FACTS

The following are the procedural facts.

On February 1, 2013, plaintiffs filed their original complaint against Weir & Partners LLP (W & P), Cushman & Wakefield National Corporation (Cushman & Wakefield), and Santander Holdings USA, Inc. (SHUSA), the holding company of Sovereign, now Santander (Bank). All three defendants filed preliminary objections. On May 30, 2013, the parties stipulated to dismiss SHUSA with prejudice as a defendant, that Bank would be added as the proper defendant, and that SHUSA’s preliminary objections would continue to be advanced on Bank’s behalf. On June 25, 2013, Judge Schmehl sustained the preliminary objections of the three defendants. Cushman & Wakefield was dismissed with prejudice, and plaintiffs were granted leave to file an amended complaint against the remaining defendants.

On July 11,2013, plaintiffs filed an amended complaint with very similar allegations. W & P and Bank filed preliminary objections which this court sustained, and this court dismissed with prejudice the complaint against the remaining defendants.

The pertinent facts gleaned from the record are as follows.

Plaintiff, Richard C. Angino, is an attorney. He and his wife, Alice K. Angino, are. the sole owners of plaintiffs King Drive Corporation and ALa Carte Enterprises. These businesses are for residential land development and the operation of Felicita Resort. Plaintiff, Angino & Rovner, P.C., is Mr. Angino’s law firm.

The Anginos are sophisticated borrowers and land developers. From 1971 through 2007, they invested an average of $1 million per year and borrowed $10 million to $12 million per year for a total investment of more than $50 million. Before 2004 they used Wells Fargo for their banking needs. In 2004, they entered into a series of loan transactions with Waypoint Bank, Bank’s predecessor, and Bank: (1) a loan made by Waypoint Bank to King Drive on October 29, 2004, in the original principal amount of $1,400,000.00; (2) a loan made by Bank to King Drive on September 2,2005, in the original principal amount of $94, 252.10; (3) a site development loan made by Bank to King Drive on July 3, 2007, in the original principal amount of $2,000,000.00; (4) a mortgage loan made by Bank to King Drive on November 28, 2007, in the original principal amount of $3,500,000.00; (5) a line of credit made by Bank to King Drive on November 28,2007, in the original principal amount of $750,000.00; and (6) a line of credit made by Bank to A La Carte dated November 28,2007, in the original principal amount of $750,000.00. The loans contained one, two, and three year maturity dates.

Plaintiffs allege in their amended complaint that from 2004 through 2008, Bank automatically renewed plaintiffs’ loans and lines and letters of credit despite plaintiffs’ inability to sell the requisite number of lots referenced in the financial documents. In 2007, the residential housing market collapsed, and plaintiffs were unable to sell the lots at the sales pace required in the loan documents. In 2008, plaintiffs wanted to borrow additional funds from Bank but were denied, because the lines were failing to generate the anticipated cash flow. Plaintiffs contend that beginning in 2008, Bank commenced a plan to divest itself of residential loans, lines of credit, and letters of credit by changing its prior practice of waiving compliance with the technical contract terms, including time and lot sales, and refusing to continue payments under its lines and letters of credit commitments.

By mid-2009, plaintiffs were in default of the loan documents for failing to sell lots at the required sales pace. Bank offered to modify the loans to extend the maturity dates, but plaintiffs refused this offer.

Bank notified plaintiffs on March 24, 2013, that they were in default of the loans. W & P, Bank’s counsel, sent plaintiffs a letter advising that the loans were immediately due and payable. On July 14, 2011, Bank entered into a loan modification agreement. The modification extended the maturity dates for the loans, modified the interest rates, and required additional security, for the loans. Plaintiffs released all claims against the Bank, its employees, officers, directors, agents, representatives, attorneys, consultants, and advisors. The modification was negotiated by all of the plaintiffs and their counsel, and defendants.

Plaintiffs were unable to make the required June 30, 2012 principal payment of $500,000.00; therefore, on July 19, 2012, Bank agreed to amend the loan modification under the terms of the first amendment which plaintiffs and their legal counsel approved and executed. This amendment, inter alia, reduced the amount of June 30, 2012 principal payment and provided additional time for payment. Under the terms of this amendment, plaintiffs released all claims again against defendants.

Plaintiffs were again unable to make the principal payment due on December 31,2012. Bank again agreed to amend the loan for a second time. Under the terms of the second amendment, plaintiffs again released all claims.

Plaintiffs requested that Bank make payments to them under letters of credit. Bank refused because plaintiffs were not the named beneficiaries and, therefore, not entitled to payment. Furthermore, under the terms of the loan modification, no further advances were permitted. Moreover, two of the letters of credit had expired prior to the extension of the modification agreement and were not renewed.

Plaintiffs’ amended complaint contains six causes of action, but within each cause of action are several claims. Defendants filed preliminary objections to the amended complaint. After argument and a review of the record, this court sustained defendants’ preliminary objections. Plaintiffs did not substantially amend the complaint against these defendants in any salient manner, so this court dismissed the amended complaint against defendants with prejudice. Plaintiffs filed a timely appeal.

ISSUES

This court ordered plaintiffs to file a concise statement of errors complained of on appeal. Plaintiffs complied with this directive; however, this court notes that plaintiffs’ statement consists of sixteen pages with five attached exhibits, so it is far from concise. This court winnowed the following complaints from this voluminous document, the bulk of which reads like a brief.

1. The amended complaint is legally sufficient to state a claim for breach of contract.

2. The amended complaint is legally sufficient to state a claim for breach of fiduciary duty.

3. The amended complaint is legally sufficient to state a claim of the duty of good faith and fair dealing.

4. Whether this court erred in dismissing the first cause of action and the second cause of action because they attempt to assert affirmative defenses as independent causes of action.

5.The amended complaint is legally sufficient to state a claim for civil conspiracy.

6. The amended complaint is legally sufficient to state a claim for intentional infliction of emotional distress.

7. The amended complaint is legally sufficient to state a claim for fraud.

8. The amended complaint is legally sufficient to state a claim for defamation.

9. Plaintiffs’ tort claims are not barred by the gist of the action doctrine.

10. The amended complaint is legally sufficient to state a claim for the violation of the Dodd-Wall Street Reform and Consumer Protection Act.

DISCUSSION

Preliminary objections in the nature of a demurrer should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action. Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2008). In the case sub judice, this court found that plaintiffs failed to assert any legally cognizable claim. It will address plaintiffs’ issues seriatim.

Plaintiffs first submit that the amended complaint is legally sufficient to state a claim for breach of contract. This complaint is without merit. A basic tenet of contract law is that when the language of a contract is clear and unambiguous its meaning must be determined by an examination of the content of the contract itself. The court must construe the agreement only as written and may not modify the plain meaning under the guise of interpretation. Little v. Little, 441 Pa. Super. 185, 657 A.2d 12 (1995).

In the instant case, there is no question that the plaintiffs breached the loan modification and its amendments. By their own admission, they failed to sell the requisite numbers of lots per year, and they missed payments that were due under the various loan documents. Plaintiffs explain everything that they failed to do as “mere technicalities” and contend that Bank breached the agreements because it refused to ignore mere technicalities. A bank may refuse to extend credit or modify a loan if it wishes to do so. Here, Bank had ample reasons to deny requests for more funds and to foreclose. Plaintiffs want Bank to be punished because it had waived the provision of the requisite lot sales in the past. A bank is under no obligation to continue to waive pertinent provisions, especially if circumstances do not improve.

Plaintiffs next argue that the complaint is legally sufficient to state a claim for a breach of fiduciary duty. This contention is meritless. Plaintiffs have alleged no facts that create a fiduciary relationship between Bank and them. Usually, there is no confidential relationship between a borrower and a lender unless the lender exercises substantial control over the borrower’s business affairs. In the case sub judice, Bank is not involved in the daily management and operations of the businesses, and it does not have the ability to compel plaintiffs to engage in unusual transactions. Bank did not compel plaintiffs to enter into the loan modification and its amendments. The terms were negotiated by the parties’ attorneys when the plaintiffs were unable to meet their financial obligations. For these reasons, this issue must be dismissed.

Plaintiffs’ third assertion is that the amended complaint is legally sufficient to state a claim for a breach of the duty of good faith and fair dealing. This contention fails and must be dismissed. Plaintiffs cite cases in which the court held or in dicta stated that a duty of good faith and fair dealing can be breached by a party; however, plaintiffs’ cases are inapposite to the instant case. Plaintiffs and Bank have a relationship of borrowers and lender. A lending institution does not violate a duty of good faith by adhering to its agreement with the borrower or by enforcing its legal and contractual rights a creditor. Creeger Brick and Building Supply Inc. v. Mid State Bank and Trust Company, 385 Pa. Super. 30, 560 A.2d 151 (1989). In the case at bar, Bank simply adhered to the parties’ agreement and enforced its legal rights as plaintiffs’ creditor.

Plaintiffs maintain that it is error to dismiss the first and second causes of action because they attempt to assert affirmative defenses as an independent cause of action. Unquestionably, these actions state a litany of the affirmative defenses which are listed in Pa.R.C.P. 1030: coercion, adhesion, impossibility, waiver and estoppel, fraud, and misrepresentation. Even assuming arguendo that these affirmative defenses are the basis of a complaint, plaintiffs have not shown that any of these grounds exist in this case.

An adhesion contract is a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. A contract is unconscionable, and therefore avoidable, where there is a lack of meaningful choice in the acceptance of the challenged provision, and the provision unreasonably favors the party asserting it. Bayne v. Smith, 965 A.2d 26 (Pa. Super. 2009). In the case sub judice, the Mr. Angino is a noted attorney, not an unsophisticated consumer, and the parties negotiated the loan modification and the amendments thereto with their attorneys; there were no terms of adhesion or misrepresentations. Plaintiffs defaulted on their loans, so they may not have been in a strong bargaining position, but they were never coerced to sign any documents: Plaintiffs’ real estate venture may be collapsing due to the economy, but Bank does not have to loan plaintiffs more money when they are having trouble paying off their present loans. A bank is a business and giving money to poor credit risks is not a good business practice.

Plaintiffs next argue that the complaint is legally sufficient to state a claim for civil conspiracy. This contention is without merit and should be dismissed. A civil conspiracy is a combination of two or more persons who engage in an unlawful or criminal act or accomplish a lawful act by unlawful means or for an unlawful purpose. In the instant case, the defendants are the Bank and its attorneys; therefore, there is no conspiracy because it is impossible for a principal and agent to enter into a conspiracy. Even assuming arguendo, that a conspiracy existed between the defendants, they did nothing illegal or for an unlawful purpose against plaintiffs.

Plaintiffs’ next argument is that the complaint was legally sufficient to state a claim for the intentional infliction of emotional distress. This contention fails. Intentional infliction of emotional distress occurs when one, intentionally and recklessly, by extreme and outrageous conduct, causes severe emotional distress to another. This court notes that all plaintiffs assert this action, but businesses are unable to suffer emotional distress. The only allegations to support this claim are that Bank’s employees made telephone calls to the individual plaintiffs regarding their failure to make timely loan payments and they made “irresponsible threats of foreclosure.” Bank pursued its legal rights and warned plaintiffs of its intent to foreclose due to the lack of payments. Hence, Bank’s actions are legal, not irresponsible. If plaintiffs suffered emotional distress, it was the result of their unhappiness over Bank’s pursuit of its legal remedies.

Plaintiffs assert that the complaint is legally sufficient to state a claim for fraud. This allegation is meritless. Pa.R.C.P. 1019 states that averments of fraud or mistake must be averred with particularity. Plaintiffs contend only that the defendants committed fraud and misrepresentations pertaining to their position regarding appraisals, obligations, and letters of credit. Plaintiffs do not delineate what was fraudulent or why an action was fraudulent. Plaintiffs do not agree with defendants’ appraisals of their properties, but their appraisals do not constitute fraud. For these reasons, this issue should be dismissed.

Plaintiffs submit that the amended complaint is legally sufficient to state a claim for defamation. This complaint is a frippery. Plaintiffs do not state what statements were defamatory. Moreover, defendants did not publish any statements to the public. The public’s knowledge gained through the publicity of a legal proceeding is not defamation.

Plaintiffs ’ penultimate contention is that their tort claims are not barred by the gist of the action doctrine. The gist of the action doctrine precludes tort claims that are collateral to claims sounding in contract. The doctrine is designed to maintain the conceptual distinction between breach of contract claims and tort claims and, as a practical matter, precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims. The Brickman Group, LTD. v. CGU Insurance Company, 865 A.2d 918 (Pa. Super. 2004). If plaintiffs had pled legitimate intentional tort claims, perhaps they would have withstood the gist of the doctrine test; however, this court dismissed plaintiffs’ tort claims because they were legally deficient. For this reason this assertion fails.

Plaintiffs’ last argument is that the amended complaint is legally sufficient to state a claim for a violation of the Dodd-Wall Street Reform and Consumer Protection Act. This argument is without merit. Plaintiffs aver that Bank violated the letter and spirit of the Act, but they do not state what the “spirit” is and what provision is violated. The Act has 161 titles and over 500 sections. Defendants should not have been made to guess exactly what section they are accused of violating and what section applies to commercial loans which are the subject of this proceeding.

In accordance with the foregoing opinion, this court submits that its decision should be affirmed and the complaint dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    Angelichio v. Myers

      C.P. of Berks County,
    No. 05-15422

      James I. Devine, for plaintiff.

      John R. O ’Rourke and Paul W. Grego, for defendants.
    June 30, 2014
   SPRECHER, J.,

Defendant, Michael J. D’Aniello, Esquire, administrator of the estate of Tyrone Diefenderfer, appeals the orders dated February 25, 2014, January 30, 2014, and October 9, 2013. This opinion is filed pursuant to Pa. R.A.P. 1928.

FACTS

Tina Marie Plotts died on February 27, 2004, as a result of a fire which started in the kitchen of the premises where she was a tenant. Defendant, Tyrone Diefenderfer (defendant), also resided on the premises, at least sporadically, and was staying there on the night of the fire. He was the only eyewitness to the incident. According to the landlords and owners of the premises, defendants Betsy Jo Myers and Joanne E. Myers, defendant did maintenance for them in exchange for the payment of rent to reside there. On the evening of the fire, defendant had fallen asleep on a couch in the first floor living room after consuming a six-pack of beer. Ms. Plotts was in her designated second floor bedroom when a fire originated in the kitchen of the first floor of the residence. The cause and/or ignition source was determined to be an unattended pot on the right rear burner of the electric stove. The cause of the rapid progression and expansion of the fire was determined to be kerosene leaking from a defective kerosene container stored near the stove.

Defendant escaped the burning residence, but Ms. Plotts was trapped inside the dwelling and could not flee; her bedroom windows were sealed shut and the stairs were impassible. She was found dead by fire personnel.

Plaintiff, Joseph Michael Angelichio, filed a motion pursuant to Pa. R.C.P. 4019 against defendant’s estate for defendant’s failure to obey two court orders requiring his attendance at a videotape discovery deposition along with related discovery violations which impacted plaintiff’s ability to proceed with the lawsuit. In this motion, plaintiff outlines a long imcontro verted history of defendant’s noncompliance with scheduled depositions.

Plaintiff’s counsel first requested deposition dates for defendant by letter to defendant’s counsel dated June 17, 2007. Defendant was then scheduled for a deposition on August 13,2007, at 12:30 p.m. which was mutually agreeable to the parties. Defendant did not appear for the deposition, and his counsel stated that he could not locate him.

On August 27, 2008, defendant’s present counsel entered his appearance for defendant. Plaintiff again requested deposition dates for defendant. Eventually, defendant’s counsel provided several deposition dates; plaintiff selected October 15,2008, with no objection from defendant, for a videotaped deposition. Again, defendant failed to appear. A new date of November 8, 2008, was selected for defendant’s deposition. On October 27, 2008, defendant’s counsel contacted plaintiff’s counsel and stated that he was unable to locate defendant about the rescheduled deposition. OnNovember 7,2008, defendant’s counsel notified plaintiff’s counsel that because his office was unable to locate defendant, defendant’s scheduled deposition of November 8, 2008, was cancelled.

On January 7, 2009, plaintiff’s counsel wrote to defendant’s counsel to request defendant’s last known address and Social Security number so he could hire a private investigator to find defendant. After receiving the requested information, plaintiff hired a private investigator who found defendant. Plaintiff then served defendant with a subpoena to take his deposition on April 27, 2009. On April 23,2009, plaintiff’s counsel contacted defendant’s counsel to confirm that defendant would appear for his deposition. By letter dated April 23, 2009, plaintiff’s counsel issued an amended notice of videotaped deposition in accordance with Pa. R.C.P. 4017.1. By letter dated April 26, 2009, defendant’s counsel notified plaintiff’s counsel that defendant refused to be videotaped and would therefore not appear for his deposition.

On April 28, 2009, April 29, 2009, and April 30, 2009, plaintiff’s counsel contacted defendant’s counsel to reschedule defendant’s deposition. Ultimately, defendant’s counsel informed plaintiff’s counsel that defendant refused to be videotaped during his deposition.

On May 18,2009, plaintiff filed a motion for contempt and for sanctions. On July 8,2009, the Honorable Scott E. Lash, on behalf of Senior Judge Albert A. Stallone, entered an order requiring defendant to appear for a videotaped deposition.

Plaintiff filed a second motion for contempt and for sanctions on May 10, 2010. On August 25, 2010, Judge Lash on behalf of Senior Judge Stallone entered an order for defendant to appear for a videotaped deposition and further ordered that the videotape would be retained by counsel for only their own use and the court’s use and would not be published to third persons. Defendant was also entitled to receive a copy of the videotape.

The parties mutually agreed on the date of November 10, 2010, for a videotaped deposition. By letter dated November 9,2010, defendant’s counsel notified plaintiff’s counsel that defendant would not appear for the deposition on November 10, 2010.

The parties subsequently agreed on December 2, 2010, for defendant’s deposition. By letter dated November 30, 2010, defendant’s counsel notified plaintiff’s counsel that defendant would not appear for this deposition because he was out of town until January 1, 2011.

Defendant’s deposition was then scheduled for January 31, 2011. By letter dated January 28, 2011, defendant’s counsel cancelled this deposition. Defendant had told his counsel that “there is no way I’m getting involved.” Defendant’s counsel further stated in the letter, “obviously, Mr. Diefenderfer will not appear Monday, nor any other time the deposition is rescheduled.”

The only statement defendant ever gave concerning the fire was an unsworn statement to a state trooper on the night of the fire. At that time he denied that he was the cause of the fire. Defendant died in January 2012.

After argument and a consideration of defendant’s dismal record of non-compliance, this court entered the orders which are the subjects of the instant appeal. This court found that the most appropriate sanction in this case was to grant plaintiff’s request for judgment in his favor and against defendant. Defendant filed an interlocutory appeal concerning this sanction.

ISSUES

Defendant raises the following issues in his concise statement of errors complained of on appeal.

1. This court erred and manifestly abused its discretion in entering judgment against defendant, pursuant to Pa.R.C.P. 4019, as a result of defendant’s failure to appear for his videotaped deposition, since there were less severe sanctions which would cure any alleged prejudice.

2. The record demonstrates that plaintiff bears some responsibility for the alleged prejudice which has accrued as a result of defendant’s death. Moreover, the alleged prejudice is unfounded. None of the evidence produced during the seven years of litigation in any way suggested that defendant was negligent or that his conduct was a substantial factor in causing the fire.

3. Given the lack of evidence indicating that defendant was negligent or that his conduct was a substantial factor in causing the fire, combined with plaintiff’s failure to diligently pursue defendant’s deposition prior to his death, the entry of judgment against him is erroneous, a manifest abuse of discretion and manifestly unjust to defendant.

4. Instead of the severe sanction of a judgment against defendant, this court could have entered less severe and more appropriate sanctions.

DISCUSSION

This court shall first address the issue of the appropriateness of the default judgment against defendant as a discovery sanction. Dismissal is the most extreme sanction and should be imposed only in extreme circumstances. A trial judge is required to balance the equities carefully and dismiss only where the violation of the discovery rules is willful and the opposing party has been prejudiced. In determining whether a discovery violation warrants the sanction of dismissal, the court must consider (1) the nature and severity of the violation, (2) the defaulting party’s willfulness or bad faith, (3) the prejudice to the opposing party, (4) the ability to cure the prejudice, and (5) the importance of precluded evidence in light of the failure to comply. Each of these factors represents a necessary consideration, not a necessary prerequisite. Rohm and Haas Company v. Lin, 992 A.2d 132 (2010).

In the case sub judice, the nature and severity of the violation are great. Defendant refused to give a deposition, not once, but at least seven times over a period of more than four years — even after the issuance of a subpoena and two court orders directing his compliance. The second court order attempted to accommodate defendant’s abhorrence of a videotaped deposition by forbidding the dissemination of the videotape to anyone besides the parties and the court. Defendant still did not appear for his deposition in defiance to the court order. Moreover, defendant expressed no intention of ever complying with the discovery request for his deposition. Thus, this court found that defendant’s actions were wilful and taken in bad faith.

The prejudice to plaintiff caused by defendant’s refusal to be deposed was significant, and the prejudice could not be remedied. Defendant’s intransigence prejudiced plaintiff by preventing plaintiff from pursuing his underlying claims and theories. Defendant was the only living witness to the fire; therefore, he was a vital witness for all parties. This court found that his refusal to give a sworn videotaped deposition reflected negatively on defendant. If he would have had nothing to hide, he would have allowed himself to be deposed, regardless of the videotaping. Defendant’s counsel should have advised defendant that he had to cooperate fully and his failure to do so would result in sanctions against him personally and/or the defense. Defendant’s counsel was aware of these risks to defendant and to defendant’s case. Defense counsel could have petitioned the court for help in attaining his client’s cooperation. This court has often aided other attorneys on various occasions when their clients were uncooperative and, thus, in violation of the rules of civil procedure and/or court orders.

Defendant presented no reasons for his refusal to be deposed. Defendant’s wilful and obdurate behavior caused plaintiff to expend extra money and time in attempting to depose him. Defendant’s testimony was critical to making or breaking both plaintiff’s case and defendants’ case. With defendant’s eyewitness testimony and an understanding of his role in the events of that evening, the parties may have been able to reach a settlement or a final resolution of the entire case one way or the other. Regardless, his deposition would likely have resulted in the avoidance of the expense of a trial.

Defendant filed a motion for summary judgment, contending that there was no evidence to link him to the cause of the fire. This court denied that motion because critical discovery was not yet completed. Defense counsel wants defendant to be rewarded for his refusal to obey court orders and his refusal to disclose important evidence in a tragic case involving the death of an innocent tenant located one flight above the landlords’ stove and the source of the fire. Defendant did not communicate with his counsel and hid his whereabouts throughout this litigation and prolonged the resolution of the case. Plaintiff was correct in needing defendant’s deposition because defendant died before the case could proceed to trial.

Defendant exited the burning building and lived. His refusal to explain what happened and his actions or inactions obfuscate all the issues. This court found that defendant’s disobedience to court orders and a subpoena and his continuous refusal to cooperate in giving a deposition were so severe and the consequences so prejudicial to all of the parties, that the ultimate sanction of a judgment against him was necessary. This court could only surmise from defendant’s actions that he had something to hide. There were no less severe sanctions which could cure the prejudice wrought by defendant.

Defendant also argues that plaintiff bears some responsibility for any prejudice which has accrued as a result of defendant’s death and that none of the evidence produced during the litigation suggests that defendant was negligent or that he was a substantial factor in causing the fire. This.contention is meritless and ridiculous. Short of kidnapping defendant or having him held in custody so that defendant was certain to be present for his deposition, this court is at a loss as to what more plaintiff should have done. Assuming defense counsel did everything in his power to advise, warn, or threaten defendant of the possible risky penalties to which his noncompliance exposed him, defense counsel himself could have petitioned this court for more serious relief to assure that his client did nothing further to jeopardize the defense case. To suggest that plaintiff bears some responsibility would also have to be applied at least equally to defense counsel having more responsibility. Furthermore, to argue that defendant “was [not] negligent or that he was [not] a substantial factor in causing the fire” would be the same as arguing that the existing evidence showing that defendant was sleeping downstairs inside the property after consuming a six pack of beer while an overcooked pot on the working stove started the fire in close proximity of the accelerant that spread the fire which was defendant’s responsibility to deliver to the furnace located in the building, should all be completely disregarded.

Defendant seems to suggest that plaintiff should have filed additional motions for sanctions. That procedure would have been a futile attempt to achieve nothing. Defendant by his actions or inaction had already indicated that he would not be deposed. Furthermore, he clearly articulated that decision to his own attorney who did nothing more than relay that information to plaintiff’s counsel.

Defendant’s disobedience has resulted in unanswered questions. Only two persons were in the residence in the evening ofthe fire. One of those tenants died in the fire because she could not escape due to sealed windows. Someone left an unattended pot burning on the stove. Defendant, the handyman and only male residing in the property, never testified under oath that he was not the cause of the fire or that he was not the person who sealed the windows shut. Therefore, one could find that his refusal to testify under oath was due to his desire to conceal his part in this tragedy.

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


author: BOCCABELLA, J.,

text:
    Commonwealth v. Vang

      C.P. of Berks County,
    No. 0745-2014

      Justin Bodor, for Commonwealth.

      Kelly S. Kline, for defendant.
    July 7, 2014
   BOCCABELLA, J.,

FINDINGS OF FACT

1. On Sunday December 15th, 2013, at approximately 11:36 p.m., Officer Gregory M. Shober was on patrol traveling east bound in the 100 block of East Lancaster Avenue in Berks County Pennsylvania.

2. Officer Shober was behind a black Jeep Wrangler (three car lengths). Officer Shober observed the vehicle touch the yellow roadway line in the 100,300,500 and 600 block of East Lancaster Avenue (approximately 1 mile). After the vehicle struck the line, it drifted to the center of his lane of travel. Officer Shober initiated a traffic stop.

CONCLUSIONS OF LAW

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

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

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

75 Pa. C.S.A. § 6308(b).

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

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

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

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

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

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

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

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

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

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

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

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

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

16. “In evaluating an accuser’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged.” Commonwealth v. Hock, 728 A.2d 943, 945 (Pa. 1999); See generally Commonwealth v. Rachau, 670 A.2d 731, 733 n.5 (Pa. Commw. 1996) citing Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa. Super. 1994).

17. “Aprima facie case of defendant’s guilt exists, so as to satisfy Commonwealth’s burden at pre-trial stage of criminal prosecution, when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) citing Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citing Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)).

18. “The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

19. “In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Schmohl, — A.2d —, 2009 WL 1451451, filed May 26, 2009.

20. “[inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) quoting Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

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

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

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

21. In this case, Officer Shober was on patrol traveling east bound in the 100 block of East Lancaster Avenue. While on duty, his attention was captured by a vehicle approximately 30 yards in front of him. Officer Shober observed the vehicle “touch” the yellow roadway line four (4) times within a one (1) mile distance. Officer Shober conducted a traffic stop. When Officer Shober initiated contact with the defendant, he also noticed a minor in the back seat of the vehicle. While Officer Shober was conversing with the defendant, he smelled a strong odor of an alcoholic beverage emanating from his breath. He asked the defendant how much he had to drink. The defendant responded and said “four (4) to six (6) beers.”

After the conversation, Trooper Garipoli asked the defendant to step out of the vehicle to perform the Field Sobriety Tests. The defendant failed three (3) tests that were given to him. Officer Shober retrieved his PBT from his car and asked the defendant to submit to a breathalyzer. The defendant agreed and the results were positive for alcohol consumption. The defendant was arrested for the suspicion of DUI. He was transported to a DUI Center and the defendants legal blood alcohol content at the time of the incident was .125%

Officer Shober did not have reasonable suspicion/ probable cause to stop the vehicle based on his own observation of the vehicle touching the yellow line four (4) times. Officer Shober testified that while the vehicle was touching the line, there were no vehicles in opposing direction. He also noted that the vehicle did nothing erratic while drifting to the center of his lane of travel (no jerking motion). In Gleason, supra, the Supreme Court addressed the issue of assessing when an officer has sufficient indicia of erratic driving to give the officer probable cause to stop a vehicle. Specifically, the defendant in Gleason was followed by a police officer for one quarter of a mile and, over that distance, the officer observed the defendant’s vehicle cross the solid fog line two or three times. The Supreme Court concluded that “given the early morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of the defendant’s vehicle crossing the fog line..., the officer erred in believing he had justification to stop the defendant’s vehicle.” Gleason, 785 A.2d at 985-986.

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

Lastly, the most direct case is Commonwealth v. Chernosky, 2004 PA Super 272. “The court held that where a vehicle is observed “drifting to the right so as to almost strike a telephone pole ... crossing the center line more than once ... drifting from the left side to the right side of the road ... and swerving within the lane of travel *823 [i.e.,] not driving in a straight path,”probable cause is not established and a traffic stop based on such observations was unlawful. FN2 Id. at ¶

The Chernosky majority noted that the driver did not exceed the speed the limit and obeyed all stop signs. The court also noted that there was no other traffic on the road at the time. Id.”

As you can see in this case, the defendant was not speeding, weaving, or breaking erratically. The defendant posed no safety hazard when his vehicle simply touched the yellow line with no oncoming traffic. The defendant did not even cross the line, and there is no evidence that he left his traveling lane. Furthermore, there is no evidence presented to the court of oncoming traffic. Therefore, at the time of the stop, Officer Shober lacked specific facts, which would have provided probable cause to believe that the defendant was in violation of Section 3301(a) Driving on Right Side of Roadway. Based on the totality of the circumstances, the court finds that the Commonwealth has not met its burden in establishing sufficient probable cause for the vehicle stop. Accordingly, the defendant’s statements are inadmissible as evidence and the seizure did occur in violation of the defendant’s constitutional rights (Article I, Section 8 of the Pennsylvania Constitution.)

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

In this case, having determined that the vehicle stop was not proper, the court finds that the Commonwealth has not presented sufficient evidence to establish a prima facie case with respect to all counts.

23. The defendant’s motion for writ of habeas corpus is denied at this time.

ORDER

And now, this 7th day of July, 2014, it is hereby ordered that the defendant’s motion for suppression of the evidence and statements is granted. The defendant’s motion for writ of habeas corpus is denied at this time.


author: WILLIAMSON, J.,

text:
    Mount Pocono Motel Inc. v. Tuscarora Wayne Insurance Co.

      C.P. of Monroe County,
    No. 9534 CIVIL 2013

      Mark A. Primrose and Matthew Jinks, for plaintiffs.

      Hema Patel Mehta and Alan S. Battisti, for defendants.
    July 8, 2014
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Tower Insurance Company of New York (hereafter “defendant Tower”) on April 16, 2014. On May 14, 2014, Mount Pocono Motel, Inc. and Mobashar Zafar (hereafter “plaintiffs”) filed an answer to defendant Tower’s motion for Summary Judgment. In the motion, defendant Tower argues that the “Fungi or Bacteria Exclusion” provision contained in the insurance policy issued by defendant Tower applies to plaintiffs. Defendant Tower argues that such provisions in insurance contracts are enforceable against the policy holder in order to bar indemnification for bodily injury resulting from fungi and bacteria. Essentially, defendant Tower seeks summary judgment because the allegations against plaintiffs in a separate but related cause of action arise from bodily injuries allegedly sustained because of mold, which is clearly and unambiguously excluded by the policy. Furthermore, defendant Tower argues that its policy does not provide coverage for the bodily injuries which arose before the policy period. For these reasons, defendant Tower seeks summary judgment on its behalf.

In response, plaintiffs argue that this court should require defendant Tower to defend and indemnify plaintiffs because the sample tests taken of the substance in the underlying matter were limited to mold, yet other substances may have existed and caused the harm. In other words, plaintiffs state that the information regarding the tested substances defendant Tower is using to deny coverage purport to depict mold because that was what the testing of the substance was limited to. Plaintiffs state that the presence of other substances and elements were never explored through the testing process. Thus, according to plaintiffs, this court should require defendant Tower defend plaintiffs because other contaminants will be demonstrated to be present. These other contaminants, according to plaintiffs, will fall outside of the coverage exclusion found in the policy and thus require defendant Tower to defend plaintiffs. Furthermore, plaintiffs argue that discovery in this, and the underlying matter is still ongoing, and therefore the evidentiary record is not sufficiently developed to allow for summary judgment to be granted.

Plaintiffs filed the underlying complaint in declaratory judgment on November 14, 2013. Defendant Tower filed an answer, new matter and new matter cross claim on January 27, 2014. Plaintiffs filed a reply to defendant Tower’s new matter and new matter cross claim on March 7, 2014. Defendant Tower filed the instant motion for summary judgment and a brief in support on April 16, 2014. Plaintiffs filed an answer to the motion for summary judgment on May 14, 2014. Plaintiffs then filed a brief in opposition to defendant Tower’s motion for summary judgment on May 28, 2014. Subsequently, defendant Tower filed a reply to plaintiffs response to its motion for summary judgment on May 30, 2014. A stipulation of counsel was filed on May 30, 2014, waiving oral arguments and allowing this matter to be decided on the briefs. After review of the parties’ motions and briefs, and in considerations of the representations made therein, we are ready to dispose of the motion.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary Judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

The instant motion for summary judgment requires us to determine whether, at this stage of the proceedings, defendant Tower can deny coverage to plaintiffs for injuries sustained by Luis Noriega in the underlying complaint currently pending with this court. As stated above, defendant Tower asks this court to grant summary judgment for two central reasons. First, defendant Tower argues that the “Fungi or Bacteria Exclusion” provision, found in the insurance contract between defendant Tower and plaintiffs, applies to bar coverage for the claims alleged by Mr. Noriega in the underlying cause of action. Defendant Tower argues that the specific provision is unambiguous and should be enforced against plaintiffs. Further, defendant Tower asserts that similar exclusion provisions have been found to be enforceable by other courts in Pennsylvania in analogous cases.

Second, defendant Tower alleges that the occurrence and bodily injury to Mr. Noriega actually happened outside of the policy period, and therefore, the policy does not allow for coverage of the injuries to Mr. Noriega. In support of this position, defendant Tower argues that the occurrence, or harm to Mr. Noriega, happened in 2004, as alleged in the underlying cause of action. Defendant Tower states that Mr. Noriega’s complaint claims that after he moved into the apartment in 2004, he began suffering from flu-like symptoms, chest pains and was constantly sick. Further, defendant Tower asserts that the other allegations raised in the underlying cause of action happened prior to the effective date of the policy. Defendant Tower vehemently contends that the policy in question did not take effect until October 15, 2008, four years after Mr. Noriega moved into the unit and began feeling ill, and six months after he confirmed that there was high mold content in the apartment. Defendant Tower emphasizes that since the mold existed as early as 2004, and Mr. Noriega’s illnesses began in 2004, the occurrence and bodily injury fall outside of the policy period. Defendant Tower concludes that Mr. Noriega’s claim does not come within the policy period, leaving defendant Tower with no duty to defend or indemnify plaintiff in Mr. Noriega’s cause of action.

Defendant Tower’s final argument is that Mr. Noriega’s claim for misrepresentation in the underlying cause of action does not constitute an occurrence within the policy period. Defendant Tower argues that Pennsylvania courts and courts applying Pennsylvania law have held that intentional acts, including intentional misrepresentations, are not covered as “occurrences” under a general liability insurance policy. Therefore, defendant Tower states that Mr. Noriega’s claims that plaintiffs were aware prior to renting the room that there was mold growth, and failed to disclose this to Mr. Noriega are not “occurrences” covered under the insurance policy. Finally, defendant Tower asserts that since Mr. Noriega alleged that plaintiffs engaged in intentional acts, the “expected or intended exclusion” provision of the insurance policy applies to bar coverage by defendant Tower.

Plaintiffs claim that the “Fungi or Bacteria Exclusion” does not bar coverage under the policy because the testing referred to in Mr. Noriega’s allegations was limited to only detect the presence of mold. Plaintiffs assert that the presence of other substances and elements were never explored through the testing employed by Mr. Noriega, and thus, not yet alleged in the underlying cause of action. Plaintiffs argue that this court should deny defendant Tower’s motion and declare that defendant Tower defend plaintiffs because other contaminates willbedemonstratedtohavebeenpresent, which contributed to Mr. Noriega’s injuries. Plaintiffs state that the other contaminates will fall outside of the exclusion and thus trigger coverage. Plaintiffs also make note that discovery is still ongoing in both this action and the underlying cause of action filed by Mr. Noriega. Therefore, plaintiffs claim the evidentiary record is not sufficiently developed in either case to support the entry of judgment at this stage.

Further, plaintiffs argue that Mr. Noriega’s allegations in the underlying cause of action make vague averments as to when the injury complained of actually occurred. Specifically, plaintiffs assert that Mr. Noriega’s complaint does not allege that he immediately became ill after moving into the unit in 2004, and no specific time frame is provided. Plaintiffs claim that the ambiguity in time referenced in the underlying complaint could reasonably be implied to cover the time period in which defendant Tower’s insurance policy was in effect. Therefore, because of this uncertainty, plaintiffs argue summary judgment is not appropriate. Finally, plaintiffs take the position that the “expected or intended injury exclusion” does not bar coverage or indemnification because, although the conduct of plaintiffs is alleged to be knowing and intentional, Mr. Noriega’s complaint avers various theories of liability falling outside of that exclusion. For these reasons, plaintiffs request this court deny defendant Tower’s motion.

Without making factual determinations regarding the allegations raised by Mr. Noriega in the underlying cause of action, we agree in part with defendant Tower in its motion, and grant summary judgment with respect to the “Fungi or Bacteria Exclusion” barring coverage for injuries sustained by Mr. Noriega due specifically to the presence of mold. As such, we need not address the other issues in defendant’s motion for summary judgment.

In making the above determinations, we are instructed by the Pennsylvania Supreme Court that the “primary goal in interpreting a policy, as with interpreting any contract, is to ascertain the parties’ intentions as manifested by the policy’s terms. When the language of the policy is clear and unambiguous, [we must] give effect to that language.” Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Insurance Co., 908 A.2d 888, 897 (Pa. 2006). Further, we are told that where a provision in the policy is ambiguous, “the policy is to be construed in favor of the insured to further the contract’s prime purpose of indemnification and against the insurer, as the insurer drafts the policy, and controls coverage.” Id.

The Pennsylvania Supreme Court has also stated that in a declaratory action to determine if a claim made by an insured is covered, it is the court which determines the question of coverage. American and Foreign Insurance Co. v. Jerry’s Sport Center, Inc., 2 A.3d 526, 542 (Pa. 2010). Specifically, we are instructed by the court that it is this court’s role to resolve questions regarding coverage and to eliminate the uncertainty of such coverage. Id. In expounding on this position, the court has held that “if the insurer is successful in the declaratory judgment action, it is relieved of the continuing obligation to defend. The court’s resolution of the question of coverage does not, however, retroactively eliminate the insurer’s duty to defend the insured during the period of uncertainty.” Id. The court has cautioned insurance providers that where a claim “potentially may become one which is within the scope of the policy, the insurance company’s refusal to defend at the outset of the controversy is a decision it makes at its own peril.” Id.

With these principles in mind, and in reviewing the terms of the commercial general liability coverage applicable to the matter at hand, we first find that defendant Tower is entitled to summary judgment with respect to the “Fungi or Bacteria Exclusion” found within the policy in question. We find the language in the exclusion to be clear and unambiguous in nature. The exclusion provision specifically states in Paragraph A., Subsection 2, Part a. that the insurance does not apply to

‘“Bodily injury’ or ‘property damage’ which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, orpresence of, any ‘fungi’ or bacteria or within a building or structure, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage.”

Def. Tower Insurance Company of New York’s mot. for summ. j. ex. B. Further in Paragraph C. of this exclusion the following provision is added to the definitions section: “‘Fungi’ means any type or form of fungus, including mold or mildew and any mycotoxins, spores, scents or byproducts produced or released by fungi.” Id. (emphasis added). This language clearly expresses the intent of defendant Tower in not providing coverage for bodily injury or property damage as the result of fungi or bacteria found in the covered property. As such, we grant summary judgment in favor of defendant Tower, and find that defendant Tower has no duty to defend or indemnify plaintiffs with respect to allegations concerning bodily injury or property damage resulting from fungi or bacteria. This same language bars recovery for damages under either of the theories raised by Mr. Noriega in his complaint because the causation is the same: presence of mold.

In granting summary judgment in favor of defendant Tower, we do not dismiss the possibility that defendant Tower may be required to defend and indemnify plaintiffs with respect to bodily injury sustained by Mr. Noriega resulting from other contaminates present in Mr. Noriega’s room during the time in which he resided there. However, at this time, there are no allegations in the Noriega complaint beyond his claim of damages from the presence of mold. There are no claims of other contaminants or causes of injury in the Noriega complaint. All claims are the result of damages from mold. Therefore, there are no other theories of recovery alleged for which the insurance policy issued by Tower would cover.

Likewise, we find that defendant Tower is also entitled to summary judgment with respect to Mr. Noriega’s requests for punitive damages in the underlying cause of action. Such damages are related to injury from the presence of mold. Furthermore, it is against the great weight of public policy to require an insurer to indemnify an insured for acts, either intentional or unintentional, which a jury finds fit to award punitive damages. As is well known in this Commonwealth, the nature of a punitive damage award is to punish an individual litigant for misconduct. Therefore, we find as a matter of law that defendant Tower is not required to indemnify plaintiffs with respect to any award for punitive damages, and also grant summary judgment, to the extent that issue is viewed separately from the underlying cause of action for personal injury due to mold.

ORDER

And now, this 8th Day of July, 2014, upon motion of defendant Tower for summary judgment, it is ordered and decreed as follows:

1. Summary judgment due to the “Fungi or Bacteria Exclusion” is granted.

2. Summary judgment prohibiting indemnification for punitive damages against plaintiffs in the underlying cause of action is granted, and defendant Tower is not required to indemnify such damages as they may arise.

3. This matter is dismissed as between plaintiffs and defendant Tower Insurance Company of New York.

      . As referenced throughout this opinion, the underlying cause of action / complaint concerns the case docketed at 2009 CV 2880, Monroe County Court of Common Pleas — Luis Noriega v. Mt. Pocono Motel, Inc., and Mobashar Zafar. Def. Tower Insurance Company of New York’s mot. for summ. j. ex. A. In that case, plaintiff Luis Noriega filed suit against defendants Mt. Pocono Motel, Inc. and Mobashar Zafar for injuries and damages sustained due to the presence of mold. Allegedly, the mold was located in Room #129, which Mr. Noriega rented from Mt. Pocono Motel and Mobashar Zafar. Mr. Noriega began renting Room #129 in 2004, and resided there continuously until April 11, 2009. Mr. Noriega alleges that shortly after he began residing in Room #129 he began to suffer from flu-like symptoms, was constantly sick, and began to suffer from chest and breathing problems. Mr. Noriega further alleges that in March of 2008 he discovered mold growth in the crawl space behind his room that was permeating through the walls of his room.
      Mr. Noriega’s complaint goes on to allege that he notified Mt. Pocono Motel and Mobashar Zafar of the mold; however, they failed to investigate or fix the mold problem. Mr. Noriega claims that in March of 2008 he had the air quality of his room tested, and that such testing reflected high mold content. After further notice and more extensive testing on March 9, 2009, Mr. Noriega alleges that physical mold was observed throughout Room #129, along with a presence of high levels of toxic mold. Mr. Noriega has attached copies of the inspections done on his room to his complaint. Finally, Mr. Noriega claims that after notifying Mt. Pocono Motel and Mobashar Zafar of the presence of toxic mold, and their failure to correct the problem, he was forced to leave his residence at Mt. Pocono Motel Room #129 and secure alternative housing.
      Mr. Noriega has alleged two counts in his complaint, one for negligence and the other for misrepresentation. Through his complaint, Mr. Noriega claims that the actions of Mt. Pocono Motel and Mobashar Za-far caused him to suffer toxic exposure to mold resulting in bodily injuries, sicknesses and illnesses. Mr. Noriega is seeking damages for the injuries sustained and the treatment necessary to correct those injuries as a result of the alleged actions of Mt. Pocono Motel and Mobashar Zafar.