author: PEREZOUS, J,

text:
    Len Stoler Inc. v. Garrett

      August 25, 2006

      Denise Montgomery, for plaintiff.

      Brian A. McCall, for defendant Car Buff.

      Dana C. Panagopoulos, for defendant Martin.
   PEREZOUS, J,

Presently before the court is the motion for summary judgment filed by the defendant, The Car Buff Auto Sales, against the plaintiff, Len Stoler Inc. Summary judgment is sought in favor of defendant Car Buff and against all other parties as to any claims and/or cross-claims filed against it. Defendant contends that it is entitled to summary judgment in this matter because it owed no duty to the plaintiff, did not breach any duty owed to the plaintiff, and the plaintiff failed to produce any evidence of negligence on the part of defendant Car Buff. Furthermore, plaintiff failed to produce any evidence of an agency relationship between defendants Garrett and Car Buff, which would establish a duty owed to the plaintiff by defendant Car Buff. In response, plaintiff argues that defendant Car Buff is vicariously liable for the actions of defendant Garrett, and the motion for summary judgment should be denied. For the following reasons, the motion is granted, and defendant Car Buff is dismissed from any and all claims and cross-claims.

Plaintiff is an automobile dealer who retained the services of defendant Richard Garrett to represent and sell a 1997 Porsche 911 at the Manheim Auto Auction in Lancaster, Pennsylvania. Defendant Car Buff was not a party to this agreement, nor did it receive any financial benefit from the attempted sale. In furtherance of this agreement, plaintiff had the Porsche transported to the Manheim Auto Auction by trailer and left the Porsche in the care, custody and control of defendant Garrett. Prior to its sale at the auction, defendant Garrett elected to have the Porsche detailed. Defendant Garrett took the Porsche from the auction by placing a dealer tag on it, owned by defendant Car Buff. On July 13,2002, defendant Garrett was involved in a motor vehicle accident while operating the Porsche on Route 322 in Ephrata, Lancaster County, Pennsylvania: he collided with the rear end of a vehicle being operated by Sheila Martin (now Sheila Sensenig). As a result of the collision, both the Porsche and the other vehicle sustained property damage. Plaintiff also claims that the Porsche lost in excess of $4,000 due to a depreciation in its resale value.

On or about February 27, 2003, plaintiff filed a complaint against defendants Car Buff and Garrett. On August 19, 2003, defendant Car Buff filed an answer and new matter denying the material allegations of the complaint and asserted a cross-claim against defendant Garrett. On March 12, 2004, defendant Garrett filed preliminary objections to the complaint, alleging that defendant Garrett was not negligent and that the accident was caused solely by the negligence of Sheila Martin. On May 14, 2004, plaintiff filed a complaint against Sheila Martin. Defendant Martin filed an answer and new matter and asserted a cross-claim against defendant Garrett. Plaintiff subsequently filed a motion to consolidate both actions, and the matters were consolidated on October 18, 2004.

Following the consolidation of the cases, the matter proceeded to arbitration, where testimony and evidence was introduced by all parties. On November 16, 2005, the arbitration panel found in favor of plaintiff and against defendant Garrett. The panel further found in favor of defendants Car Buff and Martin as to the plaintiff’s claims against them. Plaintiff timely appealed the decision of the arbitrators.

Plaintiff’s theory of recovery against defendant Car Buff rests on an allegation of authority granted to defendant Garrett by defendant Car Buff to have Garrett act on its behalf. Plaintiff alleges in the complaint that defendant Garrett gained access to the auction by virtue of an auction access card bearing his name and likeness, and identifying him as an agent of Car Buff Auto Sales and Detailing. Plaintiff further alleges that defendant Car Buff entrusted Garrett with authority to enter the auction, hold himself out as an agent of defendant Car Buff, and to use and control a dealer tag owned by defendant Car Buff for the purpose of driving the plaintiff’s Porsche on public roads. Plaintiff contends that absent these factors, the Porsche would have remained at the Manheim Auto Auction, and the accident and resulting damages would not have occurred. On the other hand, defendant Car Buff maintains that defendant Car Buff was not at fault for the accident, owed no duty to plaintiff, and is not liable for any of plaintiff’s damages. Moreover, defendant Car Buff argues that plaintiff has failed to establish an agency relationship between defendants Garrett and Car Buff regarding the plaintiff’s Porsche.

It is well-settled in this Commonwealth that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. Under the Pennsylvania Rules of Civil Procedure there are two situations in which a summary judgment motion is permissible:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:
“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(a).

Along with this standard, the rule also sets forth the requirements for a response to a motion for summary judgment:

“The adverse party may not rest upon the mere allegations or denials of the pleadings, but must file a response within 30 days after service of a motion identifying:
“(1) One or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion, or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
“(2) Evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id.

It is important to note that the moving party has the burden of proving that no genuine issue of material fact exists. Ertel v. Patriot-News Co., 544 Pa. 93, 98, 674 A.2d 1038, 1041 (1996). The appropriate standard of review is also crucial in this court’s determination of the present motion. In determining whether summary judgment is appropriate, the court must review the evidentiary record in a light most favorable to the non-moving party, and that party will be given all reasonable inferences created by that evidence. Bethlehem Steel Corp. v. MATX Inc., 703 A.2d 39, 41 (Pa. Super. 1997). In other words, any doubt must be resolved against the party seeking summary judgment, and it should only be granted in cases that are free and clear of doubt. Davis v. Pennzoil Co., 438 Pa. 194, 202, 264 A.2d 597, 601 (1970). Here, viewing the facts in a light most favorable to the plaintiff as the non-moving party, and resolving all doubts in his favor, summary judgment is appropriate.

In the present case, plaintiff has failed to establish a negligence action against defendant Car Buff because the evidence does not show that it owed a duty to plaintiff or that defendant Garrett was acting as its agent. Any negligence action is premised on the existence of a duty owed from one party to another. Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994). The issue ofwhether a duty of care exists is a question of law that may be decided by the court rather than the trier of fact. Herczeg v. Hampton Township Municipal Authority, 766 A.2d 866, 871 (Pa. Super. 2001). A court weighs several factors in determining whether a duty exists in a particular case: “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” Lindstrom v. City of Corry, 563 Pa. 579, 584, 763 A.2d 394, 397 (2000).

In order for an agency theory of liability to attach, moreover, a plaintiff must establish the following elements: (1) the manifestation by the principal that the agent shall act for him, (2) the agent’s acceptance of the undertaking, and (3) the understanding of the parties that the principal is to be in control of the undertaking. Basile v. H & R Block, 563 Pa. 359, 367, 761 A.2d 1115, 1120 (2000). It is also important to note that the fact that an employee is driving an automobile with a dealer’s tag does not authorize a presumption that the employee of the car dealer is acting within the scope of his employment; he might, with equal legality, be using the vehicle for his own pleasure. Lanteigne v. Smith, 365 Pa. 132, 135, 74 A.2d 116, 118 (1950). As the court held in Lanteigne, agency cannot be inferred from the fact that a dealer’s tags were on a car. Id.

The evidence of record establishes that defendant Garrett was acting solely and exclusively on behalf of plaintiff in connection with the sale of the Porsche, and fails to establish that he was acting as an agent of Car Buff when the accident occurred. As the record shows, defendant Garrett was given authority to drive the Porsche and remove it from the auction site to have it conditioned for sale by plaintiff, not defendant Car Buff. Furthermore, defendant Garrett received payments from Len Stoler for services related to the Porsche, and received no payments from defendant Car Buff. Defendant Car Buff had no financial interest in the Porsche and was not paid for any services associated with the attempted sale of the Porsche.

In addition, there was no manifestation that defendant Garrett was working for defendant Car Buff in connection with the sale of the Porsche. As previously mentioned, defendant Garrett received payments from plaintiff; defendant Car Buff had no financial interest in the sale of the Porsche. The Porsche was not being detailed at a facility connected with defendant Car Buff, and Car Buff had no control over defendant Garrett’s actions relating to the sale of the Porsche. Defendant Garrett accepted the undertaking to sell the Porsche on plaintiff’s behalf, and not for the benefit of defendant Car Buff. The record establishes that plaintiff acted as principal and was in control of the undertaking to sell the Porsche at auction. The mere fact that defendant Garrett operated the car with defendant Car Buff’s dealer tag, after obtaining access to the car by virtue of an auction access card, is insufficient to impose legal liability upon defendant Car Buff for the accident involving the Porsche. Therefore, the motion for summary judgment is granted.

Accordingly, the court enters the following:

ORDER

And now, August 25,2006, upon consideration of the motion for summary judgment filed by the defendant, The Car Buff Auto Sales, together with the briefs and supporting papers filed by the parties, it is hereby ordered that the motion is granted, and the defendant, The Car Buff Auto Sales, is hereby dismissed from any and all claims and cross-claims.


source: Caselaw Access Project

author: CHESLOCK, J,

license: Public Domain

text:
    Friedman v. Poster

      August 15, 2006

      Mark A. Primrose, for plaintiff.

      Salvatore P.J. Vito, for defendants.
   CHESLOCK, J,

This matter comes to the court on an appeal from the district justice judgment which was entered on February 27, 2006, in favor of the plaintiff, Laszlo Friedman, and judgment entered against A.P. Sys. Inc. d/b/a Semper Fi Pump Srv. in the amount of $3,991. On March 23, 2006, the defendant, Joby Poster, filed a notice of appeal with the prothonotary’s office and a rule to file a complaint was served upon the plaintiff. Thereafter, on April 25, 2006, the plaintiff filed his complaint alleging that the defendant improperly installed a grinder pump on plaintiff’s property which did not function properly, causing damages to plaintiff. On May 12, 2006, the defendant filed preliminary objections and praeciped the matter for oral argument. Thereafter, on June 8, 2006, plaintiff filed an amended complaint which rendered moot the defendant’s preliminary objections to plaintiff’s complaint. On July 5, 2006, the defendants filed preliminary objections to plaintiff’s amended complaint and a praecipe for argument and this matter was scheduled for oral argument before the court on August 7, 2006. The parties having filed their briefs in support of their respective positions, we are now prepared to dispose of this matter.

Pennsylvania Rule of Civil Procedure 1028(a)(4)(5) states in pertinent part as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
“(4) legal insufficiency of a pleading (demurrer);
“(5) lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action;
“(b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.”

Defendants’ first preliminary objection is in the nature of a demurrer. Preliminary objections asserting that the plaintiff fails to state a cause of action upon which relief can be granted is in the nature of a demurrer. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). It is well established that preliminary objections in the nature of a demurrer is admitted to all facts that are well pleaded allegations, including reasonable inferences deducible therefrom. Sweatt v. Department of Corrections, 769 A.2d 574 (Pa. Commw. 2001). In assessing preliminary objections in the nature of a demurrer, the court shall sustain a demurrer and dismiss a complaint only in cases which are free and clear from doubt. Leach v. Hough, 352 Pa. Super. 213, 507 A.2d 848 (1986). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Emerich v. Philadelphia Center for Human Development Inc., 554 Pa. 209, 720 A.2d 1032 (1998).

The defendants’ demurrer to the complaint alleges the invoice attached to the amended complaint sets forth the corporation of Semper Fi Pump Service Inc. and despite the corporate designation on the invoice, plaintiff has sued Joby Poster and American Pumps and Systems Inc. d/b/a Semper Fi Pump Services. The court has done a search of the Pennsylvania Department of State Corporate Entities and found that there existed a business with the name of Semper Fi Pump Services Inc. which was created on April 22, 2002, and its registered office address is HC 12, Box 470, Dingman’s Ferry, PA 18328. No corporate officers were indicated in the business records. In addition, the court found the name of American Pump System Inc., a domestic corporation, which was established on April 19, 1998. The president of American Pump is listed as Joseph Poster and the secretaiy and treasurer’s name is Patricia Poster. The registered offices and all the addresses for American Pump System Inc. is listed as Star Route, Box 470, Dingman’s Ferry, PA 18328. A review of the amended complaint demonstrates that Joby Poster has an address of HC 67, Box 470, Dingman’s Ferry, PA and American Pump Systems Inc. d/b/a Semper Fi Pump Services has the same address.

Count I of the amended complaint alleges that an individual identified as Joby Poster guaranteed the pump not to fail or, in the alternative, to operate properly for a period of one year. Moreover, in Count II of the amended complaint, plaintiff avers that he does not know who the principals of Semper Fi are, since the corporate filings do not contain that information. The amended complaint avers that the invoice attached to plaintiff’s original complaint has the name of Semper Fi Pump Services lined out and the name of Joby Poster handwritten on the top of the invoice with the address listed as HC, Box 470, Dingman’s Ferry, PA 18328.

In essence, the defendants have alleged in their preliminary objections that the plaintiff is attempting to pierce the corporate veil in this matter. “When making [a] determination of whether to pierce the corporate veil, [a] court must start from the general rule that... corporate entities] should be recognized and upheld, unless specific, unusual circumstances call for an exception.” S. T. Hudson Engineers Inc. v. Camden Hotel Development Associates, 747 A.2d 931, 935 (Pa. Super. 2000). “There is a strong presumption in Pennsylvania against piercing the corporate veil.” Miners Inc. v. Alpine Equipment Corporation, 722 A.2d 691, 694 (Pa. Super. 1998).

In reviewing the plaintiff’s amended complaint, we find that the well pleaded allegations, including reasonable inferences deducible therefrom, indicate that a cause of action has been set against Joby Poster. The allegations in the complaint indicate that he individually made representations that he would warranty the pump separately from the corporation. The warranty was for a period of one year. Hence, we find that the complaint clearly sets forth a cause of action against the defendant, Joby Poster.

In addition, the defendant argues that exhibit “A” attached to the complaint shows an invoice from the corporation Semper Fi Pump Services Inc. However, we find that in reviewing the exhibit attached to the complaint, the corporate designation was scored through and the name of Joby Poster was placed above it. We find that the complaint reasonably sets forth why he does not know if Joby Poster had been working for American Pumps and Systems Inc. or doing business as Semper Fi Pump Services due to the lack of corporate information from the Pennsylvania Department of State. Furthermore, from our own research, we found the name of American Pump Systems Inc. is currently a business within the Commonwealth of Pennsylvania. The amended complaint designates it as American Pumps and Systems Inc., however, we believe the word “and” is insignificant in the corporate designation in which the defendant, Joseph Poster, is the principal. The amended complaint avers that Joby Poster worked for American Pump. Also, plaintiff alleges he called a telephone number for American Pump to have the necessary work completed. Since a demurrer may only be granted in cases which are clear and free from doubt, we believe plaintiff’s claim must survive the pleading stage of this litigation.

The next objection raised by the defendants is nonjoinder of a necessary party. The defendants argue that, as set forth in exhibit “A” of the original complaint, there is an invoice indicating Semper Fi Pump Services, which is not named as a party in this matter. However, as set forth above, the corporate name was lined out on the invoice and the name of Joby Poster was indicated above. Furthermore, the amended complaint lists American Pumps and System Inc. and a search of the corporate businesses in Pennsylvania indicates that there is a corporation listed as American Pump Systems Inc. The only variation on the name of the complaint is the word “and” which we believe is insignificant. Accordingly, we find that, based upon the well pleaded allegations, Semper Fi Pump Services is not a necessary party and the preliminary objection must be overruled.

Based on the foregoing, the court enters the following order:

ORDER

And now, August 15, 2006, the defendants, Joby Poster and American Pumps and Systems Inc. d/b/a Semper Fi Pump Services’ preliminary objections to plaintiff, Laszlo Friedman’s amended complaint are overruled.


author: DYCH, J,

text:
    X-tra Inc. v. Pennsylvania Liquor Control Board

      January 25, 2006

      Edward B. McHugh, for plaintiff.

      Robin Coward, for defendant.
   DYCH, J,

X-tra Inc. appeals from my order of December 2005, affirming the decision of the Pennsylvania Liquor Control Board.

The reasoning and authority for my decision are set forth in the memorandum, which accompanied that order, and is appended hereto.

MEMORANDUM AND ORDER

DYCH, J., December 2005 — X-tra Inc. appeals from the July 27, 2004 order of the Pennsylvania Liquor Control Board refusing renewal of appellant’s amusement permit based upon four citations for permitting lewd, immoral or improper entertainment in violation of 47 P.S. §4-493(10) of the Liquor Code, and for permitting entertainers to contact or associate with patrons for a lewd, immoral, improper or unlawful purpose in violation of 40 Pa. Code §5.32(c) of the Pennsylvania Liquor Control Board Regulations. The record below was received into evidence and additional testimony taken.

The scope of review for the common pleas court concerning Liquor Enforcement matters is a de novo review. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Cantina Gloria’s Lounge Inc., 536 Pa. 254, 639 A.2d 14 (1994). This court has a duty to accept the record for the proceedings below if introduced into evidence, together with any other evidence that is properly received, and to make its own findings of fact, conclusions of law, and assess the penalties, if any. Pennsylvania State Police, Bureau of Liquor Control Enforcement v. Kelly’s Bar Inc., 536 Pa. 310, 639 A.2d 440 (1994). This court, in its discretion, may change, alter, modify or amend the findings, conclusions, and penalties imposed by the board. Id.

The Liquor Code grants the board authority to refuse to renew an amusement permit based upon the licensee’s operating history. 47 P.S. §4-478(a). By letter dated October 17, 2003, the board notified appellant that it obj ected to the renewal of its amusement permit based upon four citations, the last of which was issued on September 20,2002. The citations all involved similar conduct occurring on 17 different occasions. The board issued an order refusing renewal of appellant’s amusement permit on July 27, 2004, and this timely appeal followed.

Appellant does not dispute the facts of the adjudicated citations. Rather, appellant contends that its amusement permit should be renewed because it has taken substantial steps to address the wrongful activity. 47 P.S. §4-470(a)(4) (stating, “The board may take into consideration whether any substantial steps were taken to address the activity occurring on or about the premises”). Whether a licensee has taken substantial steps to prevent wrongful activity, however, is merely one factor to consider when deciding whether an amusement permit should be renewed. 47 P.S. §4-470. Furthermore, I find that appellant has not demonstrated that substantial steps were taken to prevent recurrence of the wrongful activity.

Appellant’s employee, Ms. Candice Carney, testified concerning alleged remedial measures, many of which were similarly attested to by appellant’s corporate officer, Patsy Demone, by way of affidavit. These alleged measures included: (1) implementing a strict hiring process including interviews and orientation (N.T. January 10, 2005 hearing, pp. 15-19; April 14,2005 hearing, pp. 11, 12); (2) adopting new house rules (exhibit L-l, case no. 04-9128,1/10/05); (3) hiring of a house mom to strictly enforce appellant’s policies (N.T. 1/10/05, pp. 10,38-41; 4/14/05, pp. 11, 12); (4) installation of a camera system (N.T. 1/10/05, pp. 12, 23, 40); and, (5) hiring of additional floor personnel to monitor the entertainers’ conduct. (N.T. 1/10/05, p. 59; 4/14/05, p. 11.) I heard Ms. Carney’s testimony, observed her demeanor and found this self-serving testimony unpersuasive. Appellant has not demonstrated that substantial steps were taken to prevent the wrongful activity, nor have they demonstrated that any remedial measures taken had any effect in improving appellant’s conduct.

The East of Broad Improvement Association, the Historical Society of Pennsylvania, the Library Company of Philadelphia and Ruthann Madway (the intervenors) presented additional testimony to this court. The combined testimony offered by the intervenors suggests that appellant continues to permit entertainers to engage in the same or similar behavior which caused issuance of the citations, and that any purported policy changes have not been effective in addressing this conduct. This court found the testimony presented by the intervenors to be credible and persuasive.

Appellant also contends that the board violated appellant’s due process rights by usurping the powers of the Bureau of Liquor Control Enforcement and penalizing appellant twice for the same conduct. Appellant’s reasoning would only bestow the board with the power to refuse renewal of a permit based upon unadjudicated citations, lest a licensee be penalized twice for the same conduct. However, the Liquor Code explicitly grants the board authority to refuse to renew an amusement permit based upon the licensee’s operating history. 47 P.S. §4-478(a). The director of the Bureau of Licensing is authorized to object to the renewal of an amusement permit on the ground that a licensee has permitted lewd, immoral or improper entertainment in violation of 47 P.S. §4-493(10) of the Liquor Code. Id. 47 P.S. §4-478(a) authorizes the board to refuse renewal of appellant’s permit based upon adjudicated violations of 47 P.S. §4-493(10). Clearly, appellant’s due process rights have not been violated.

Accordingly, after consideration of the record and the evidence received at the hearing of April 14,2005,1 find as fact that:

(1) Appellant X-tra Inc. received four citations, numbers 02-1742,02-0538,01-0945 and 00-1130, for permitting lewd, immoral or improper entertainment on premises licensed with an amusement permit in violation of section 493(10) of the Liquor Code, 47 P.S. §4-493 (10).
(2) In response to the aforementioned citations, appellant did not take substantial measures to prevent further misconduct by its employees, agents, servants, or entertainers on the premises.
(3) Appellant continues to permit lewd, immoral or improper entertainment on its premises in violation of the Liquor Code, 47 P.S. §4-493(10).

I conclude as law that:

(1) Appellant’s actions following the board’s warning letter dated October 17,2003 did not constitute substantial steps to prevent the wrongful activity.
(2) The weight of the evidence supports denying the renewal of appellant’s amusement permit.
(3) Appellant’s due process rights were not violated.

Therefore the following order is entered:

ORDER

And now, November 30, 2005, it is ordered and decreed that the renewal of the amusement permit associated with restaurant liquor license no. R-1097 is denied.

      . Citation numbers 02-1742, 02-0538, 01-0945 and 00-1130.

      . All of the citations concerned female dancers performing bare-chested for male patrons at appellant’s establishment. In the citations involving unlawful contact between the dancers and patrons, the dancers performed couch dances on patrons during which patrons were permitted to fondle the dancers’ breasts and buttocks. Other citations concerned dancers accepting tips from patrons by pressing their breasts together, as well as grabbing and squeezing patrons’ crotch areas.

      . Mr. Robert Clements, a private investigator hired by the intervenors, Reverend William Goldwater, and Ms. Sarah Batchelor all testified on behalf of the intervenors concerning their visits to appellant’s establishment. Ms. Batchelor observed dancers performing bare-breasted, touching their private parts, and simulating masturbation. (N.T. 1/10/05, pp. 51-52, 54-55.) Reverend Goldwater observed dancers performing bare-breasted and receiving tips between their breasts or inside their g-string. (N.T. 4/14/05, pp. 62-63.) Mr. Clements observed dancers receiving tips between their breasts or inside their g-string, touching of patrons, and touching and rubbing of patrons during couch dances. (N.T. 4/14/05, pp. 48-51.)


author: ZULICK, J,

text:
    Frey v. Frey

      July 13, 2006

      Melissa Rudas, for plaintiff.

      Harold J. Funt, for defendant.
   ZULICK, J,

This matter comes before the court on Richard K. Frey’s (Father) exceptions to the report of the support master. Father and Janet S. Frey (Mother) are the parents of two children, one of whom is a minor. Mother and Father share legal and physical custody of their minor son on an equal basis. The parties live next to each other on property they own, Mother living in a smaller home and Father in the main residence.

A support hearing was held on February 14, 2006, before Richard D. James, Esquire, the support master, on Mother’s complaint for child support and alimony pendente lite. On March 20, 2006, the support master filed a report recommending that Father pay the sum of $816 per week in alimony pendente lite, $330 per week in child support, an additional $75 per week for private school tuition.

Father filed exceptions to the report of the support master on March 29, 2006, arguing numerous points of error.

FINDINGS OF FACT

(1) The parties married on October 13,1972.

(2) The parties separated around May 2003, and Wife has filed for divorce.

(3) The parties had two children, Alexander, born November 17, 1992, and Natalie, bom September 28, 1987.

(4) Father is a chiropractor and currently has two businesses, Pocono Chiropractic Health Centre P.C. and Moorestown Chiropractic.

(5) Mother worked as an office manager in Father’s business until October 2005.

(6) Mother currently sells diets for Weight-A-Minute, but these revenues belong to the corporation.

(7) Mother was a licensed practical nurse; however, she has not worked in this field in 18 years.

(8) The parties jointly own a 2000 Mercedes, 1982 Rolls Royce, 1994 Volvo, 1976 Cadillac, 1994 Jaguar, 2003 ATV and a boat.

(9) Father’s corporation bought a Flummer motor vehicle within the last few years for his use. NT, p. 56.

(10) Father and Mother jointly own three parcels of real estate in Chestnuthill Township, Flamilton Township and Moorestown, New Jersey.

(11) Father earned $247,000 in wages, tips and other compensation (gross income) in 2003 and 2004. Plaintiff’s exhibit 4,2004 U.S. income tax return; defendant’s exhibit 4, compilation report, December 31, 2004.

(12) The parties reported Mother’s gross income in 2004 as $3,120. See joint 2004 U.S. tax return, plaintiff’s exhibit 4. The master determined that Mother’s income capacity was $420 gross per week.

(13) The corporation (Father’s two businesses) paid rental fees of $ 122,196 for commercial property in 2005, however, neither party established whether there were net revenues or losses from rental property.

(14) The current commercial rental fees, when paid, are wholly received by Father.

(15) Mother testified that Father’s Pocono business office grossed $1,007,612.80 in 2003 and that his Moorestown business office grossed $178,898.53 in 2003.

(16) Mother testified that Father’s Pocono business office grossed $741,357.52 in 2004 and that his Moorestown business office grossed $30,546.49 from January through March 2004. After March 2004, the Moorestown business office started its own computer system and Mother was unable to gather further information about the Moorestown business’ gross income.

(17) Mother and Father both testified that insurance reimbursements for chiropractic services have decreased.

(18) The mortgage payment for Mother’s and Father’s residential property and house is $6,800 per month.

(19) There are two houses on the residential property, one is 15,000 square feet (occupied by Father) and the other is 1,300 square feet (occupied by Mother).

(20) Father began having problems paying the residential mortgage and associated taxes between five and six years ago.

(21) The homeowner insurance premium for 2005 was $11,358. The homeowner insurance premium for 2006 was $12,048.

(22) The couple has an outstanding home equity loan that is approximately $1,400 per month in repayment.

(23) The mortgage payment for the commercial property in Stroudsburg is $8,545 per month.

(24) The commercial business insurance premium for 2005 was $4,882.

(25) The commercial business insurance premium for 2006 was $4,995.

(26) The corporation pays $600 per month, which is the interest only, on its line of credit.

(27) The couple has a 50/50 custody arrangement regarding the minor child.

(28) Father has provided $2,070 in direct payments of support to Mother since October 24, 2005.

DISCUSSION

When evaluating the merit of the parties’ exceptions to the master’s recommendation, the court must first examine the master’s report. 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) citing Simeone v. Simeone, 380 Pa. Super. 37, 50 n.3, 551 A.2d 219, 225 n.3 (1988). However, “[i]t 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) citing Arcure v. Arcure, 219 Pa. Super. 415, 416, 281 A.2d 694, 695 (1971).

“[Although the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution.” Trembach v. Trembach, 419 Pa. Super. 80, 84, 615 A.2d 33, 35 (1992) citing Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986). In addition, the court must keep in mind the legislature’s intent “to effectuate economic justice between the parties.” Perlberger v. Perlberger, 426 Pa. Super. 245, 263, 626 A.2d 1186, 1196 (1993), citing 23 Pa.C.S. §3102(a)(6).

I will address Father’s seven exceptions as follows:

(1) Did the master err by failing to apply a downward deviation to the support guideline amount based on evidence of defendant’s (Father’s) extraordinary mortgage and real estate tax payments incurred for the parties’ jointly titled residential and commercial properties in accordance with Rule 1910.16-5 of the Pennsylvania Rules of Civil Procedure?

Child support is a primary obligation of the parent and the parent himself may have to forego providing for some of his needs and luxuries in order to provide for his child. See Colonna v. Colonna, 581 Pa. 1, 7, 855 A.2d 648, 651 (2004) (explaining that “[wjhile a downward adjustment in lifestyle is a frequent consequence of divorce that affects both adults and children, we would be remiss in failing to ignore the reality of what happens when children are required to live vastly different lives depending upon which parent has custody on any given day”). This family has maintained a high standard of living, although high mortgage payments have permitted that to occur. I find no reason to disturb the master’s recommendation with a downward deviation. Father testified that he was highly motivated to sell the parties’ real property to bring their budgets into a semblance of reality. Child support and alimony pendente lite must be an obligor’s first expense; other expenses must be brought in line to allow an obligor to meet his responsibilities.

Pennsylvania Rule of Civil Procedure 1910.16-5 permits deviations from the support guidelines in cases where there are “unusual needs and unusual fixed obligations.” However, application of this rule is discretionary and the court must act in accordance with what is in the best interests of the child. See Ricco v. Novitski, 874 A.2d 75 (Pa. Super. 2005) (explaining that purpose of child support is to promote the child’s best interests). Further, the support guidelines are presumed to be the proper amount and any deviation requires the trier of fact to consider all relevant factors and no one factor, by itself, is generally sufficient to warrant a deviation. Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192 (1994). The practical reality is that the Frey family is undergoing a massive upheaval, both emotionally and financially, as the couple divorces and begins to leam to live within new financial realities. This family is used to a high standard of living, but that may not be possible under current circumstances.

A support order is not a mechanism to punish a spouse, but to achieve equity. Mother, who supported Father’s businesses by working for Father while receiving only a minimal salary, needs Father’s financial support to raise the couple’s minor child and provide for her basic needs, as well as being able to litigate the impending complex divorce.

The Pennsylvania Supreme Court recognized that flexibility in determining support obligations is not unfettered discretion and that “[deviation will be permitted only where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate.” Ball v. Minnick, 538 Pa. 441, 450, 648 A.2d 1192, 1196 (1994). Therefore, the court will not deviate from the master’s determination and will not grant Father a deviation in support based on “unusual needs and unusual fixed obligations.”

(2-3) Did the master err by basing the support amount on the parties’ 2003 and 2004 incomes and by ignoring defendant’s 2005 income as set forth in Pocono Chiropractic Health Centre PC. ’s 2005 compilation report prepared by Steven Rose CPA?

The decision to use the parties’ last filed tax return as the most accurate evidence of income was one of credibility made by the master. A review of Father’s testimony supports the master’s determination that Father “was either unable or unwilling to explain his exhibits or to explain the tax return.... [Father’s] demeanor and vague testimony gave little credibility to him as a witness.” Master’s report dated March 16, 2006. Since the record supports the master’s credibility determination, I will not disturb his finding that the 2004 tax return was the best evidence of the parties’ income. This exception is denied.

(4) Did the master fail to assess the plaintiff an earning capacity reflective of her credentials and previous work history as a licensed practical nurse and office manager?

The master found that Mother has not worked as a licensed practical nurse in 18 years. She has worked as a bookkeeper and secretary in Father’s chiropractic office, although for minimal pay. Mother has attempted to improve her employability by working toward becoming a personal trainer. Mother currently sells diet products and is attempting to resolve the issue of her nursing license. At the time of the master’s hearing, Mother credibly testified that she was unsure of whether she had properly renewed her nursing license and explained that even if she was licensed, she would be hesitant to return to nursing as she has not worked in a clinic or hospital setting providing direct patient care in many years. NT, pp. 6-8.

The Pennsylvania Superior Court explained that “[a] lthough a person’s actual earnings usually reflect his earning capacity, where there is a divergence, the obligation is determined more by earning capacity than actual earnings.” Woskob v. Woskob, 843 A.2d 1247, 1251, (Pa. Super. 2004) citing DeMasi v. DeMasi, 408 Pa. Super. 414, 597 A.2d 101 (1991). The, Superior Court further explained that “[e]arning capacity is defined as the amount that a person realistically could earn under the circumstances, considering his age, health, mental and physical condition, training, and earnings history.” Id., citing Gephart v. Gephart, 764 A.2d 613 (Pa. Super. 2000). Mother’s true earning capacity is uncertain, but given her long separation from direct patient care in the nursing field, it is highly unlikely that Mother is eminently employable as a licensed practical nurse. Mother does have office management skills and could seek employment in that field.

“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.” DeMasi v. DeMasi, 408 Pa. Super. 414, 420, 597 A.2d 101, 104 (1991), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993) “APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/ himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse.” Id. at 421-22, 597 A.2d at 105; Litmans v. Litmans, 449 Pa. Super. 209, 222-23, 673 A.2d 382, 388 (1996). Further, even if a spouse has worked and earned a significant income throughout the marriage, that does not ensure the two separating spouses will be on equal footing. Powers v. Powers, 419 Pa. Super. 464, 615 A.2d 459 (1992). Rather, “[a]long with the petitioner’s separate estate and income, the trial court must also consider the respondent’s ability to pay, the general character situation and surroundings of the parties.” Id. at 467-68, 615 A.2d at 461. (internal citations omitted) In this situation, Mother has earned significantly less than Father and clearly has a need for alimony pendente lite. Mother gave up her career as a licensed practical nurse to further the family’s business; essentially, Mother directly contributed to Father’s earning power. As such, Father now has the obligation to provide Mother with appropriate support. Therefore, the master’s findings that Mother has monthly net income of $810.33 will not be disturbed.

(5) Did the master err by failing to credit the testimony of both parties concerning the impact of reduced health insurance reimbursements on the professional corporation’s revenues?

Mother and Father each testified that there have been ongoing decreases in insurance reimbursements for Father’s chiropractic practice. However, this does not change the fact that the master made a credibility determination that the financial information provided by Father for 2005 was less than reliable. Father is still driving a Rolls Royce and, within recent years, bought a Hummer as a corporate vehicle. These are not indicia of a principal dealing with declining business revenues. If that is truly the case, Father needed to make a better record of business revenues and expenses than what was presented to the master. Therefore, this exception is denied.

(6) Did the master improperly conclude that the negativefinancial impact of the corporation s decreased revenues did not occur until 2005, the year in which the petition for support was filed and that defendant manipulated the corporation s financial statements by accelerating expenses and deferring income?

As noted above, the master did not find Father’s testimony about his financial condition in 2005 to be credible, and relied upon the 2004 joint tax return to determine the parties’ incomes. The master found that the negative financial impact of declining insurance reimbursements did not actually occur until 2005, based upon the accountant’s compilation reports submitted by Father. See defendant’s exhibits 3 and 4. The master did not find the compilation reports to be a true rendition of Father’s financial condition. I will not disturb the master’s credibility determination on that point. Therefore, the master’s determination on this matter will be upheld and this exception is denied.

(7) Did the master fail to consider credit for all payments made by the defendantfor the benefit of the plaintiff including, but not limited to, mortgage, heat, cable, cell phone, electric, propane and telephone on plaintiff’s residence, pursuant to the October 20, 2005 order approving the stipulation of the parties at no. 777 D.R. 2003; 5768 Civil 2003?

On the day of the argument on this matter, Mother and Father, with their counsel, participated in proceedings to resolve other related matters regarding this support matter. At that time, pursuant to a court order that I issued, Father received a credit on his support order of $3,019.29. Therefore, this exception is moot.

CONCLUSIONS OF LAW

(1) The master’s report and recommendation is supported by credible evidence and will be accepted.

ORDER

And now, July 13,2006, following a hearing on Richard K. Frey’s exceptions to the report of the support master, it is ordered that Father’s exceptions are denied. The provisions of the master’s report are adopted and remain in full force and effect.

      . Given Father’s difficulty in explaining his financial condition, an actual filed tax return or the testimony of the preparer of the compilation reports would have assisted the master and the court in this determination.


author: KUNSELMAN, P.J.,

text:
    Trumbetic v. Citizens Bank of Pennsylvania

      April 25, 2007

      Ronald S. Jones, for plaintiff.

      Thomas E. Reilly, for defendant Citizens Bank of Pennsylvania.

      John H. Herbrnck for defendant Danylo.
   KUNSELMAN, P.J.,

This declaratory judgment action is before the court on a motion for summary judgment filed on behalf of the plaintiff, Judith Trumbetic. The defendant, Nancy M. Danylo, did not file a response to Trumbetic’s motion because it was not endorsed with a notice to plead. The defendant, Citizens Bank of Pennsylvania, did not file a response because it has been dismissed from the action by stipulation of the plaintiff and is prepared to pay the disputed funds it holds to either Trumbetic or Danylo as the court declares.

The factual and procedural history of this dispute follows. On April 13, 1987, Donald R. Kelley, Danylo’s father, opened an Individual Retirement Account (IRA) with Mellon Bank N.A. In the application, Kelley named Danylo as the beneficiary of the account. On September 1, 1994, Kelley signed another application for the same account in which he designated Trumbetic as the beneficiary of the account. On April 16,2001, Kelley signed a distribution election form in which he selected a payment option and gave directions for payment from the IRA. Trumbetic’s name was inserted in the blank space of this form as the “direct beneficiary’s name.” All three of these forms were also signed by “P. Stump,” an employee of Mellon Bank N.A. and Trumbetic has possession of a copy of all three forms.

Thereafter, Mellon Bank N.A. was acquired by Citizens Bank which succeeded to the IRA account and which retained P. Stump as an employee. Citizens Bank has possession of the originals of the initial application dated April 13, 1987 and the distribution election form dated April 16, 2001, but does not have possession of the original of the application dated September 1,1994. Kelley died on December 27,2004 and both Danylo and Trumbetic made claims against Citizens Bank for the proceeds of the IRA. Citizens Bank refused to pay the proceeds to either claimant and Trumbetic filed this declaratory judgment action, seeking a declaration that she is the rightful owner of the IRA. Thereafter, Citizens Bank sought leave to interplead and pay the funds to the prothonotary to be paid over to Danylo or Trumbetic. Citizens Bank also sought counsel fees. Trumbetic secured leave to amend her complaint to include a count of negligence against Citizens Bank. Thereafter, Trumbetic and Citizens Bank entered into the stipulation referred to above.

The deposition testimony of Pauline Stump was taken by all three parties. While she had no specific recollection of either Kelley or any of the three papers referred to above, she verified her signature on each of the forms and described the usual practice was to give the customer a copy of each form and to send the original to the Mellon Bank’s Retirement Savings Unit in Pittsburgh.

Trumbetic contends that she is the rightful owner of the fund because she is the designated beneficiary of the account, notwithstanding Citizens Bank does not have possession of the original of the form which designates her as the beneficiary. Danylo contends that the beneficiary form held by Citizens Bank is dispositive because Trumbetic produced no corroborative evidence that Kelley intended to change the beneficiary. Danylo further contends that she has no obligation to respond to Trumbetic’s motion for summary judgment because it was not endorsed with a notice to plead.

We will discuss Danylo’s last contention first. The Pennsylvania Rules of Civil Procedure requires every pleading to be filed within 20 days after service of the preceding pleading unless the preceding pleading either fails to contain a notice to defend or is not endorsed with a notice to plead in which case a pleading need not be filed. Pa.R.C. P. 1026(9). Danylo contends that, because Trumbetic’s motion for summary judgment was not endorsed with a notice to plead, she was not required to file a response thereto.

Danylo is in error for two reasons. First, a motion for summary judgment is not a pleading. Pleadings are limited to a complaint, answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto. Pa.R.C.P. 1017(a). Second, the applicable procedural rule requires a response. The rule provides, in relevant part, as follows:

“(a) Except as provided in subdivision (e), the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying
“(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion, or
“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.
“(b) An adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.
“(c) The court may rule upon the motion for judgment or permit affidavits to be obtained, depositions to be taken or other discovery to be had or make such other order as is just.
“(d) Summary judgment may be entered against a party who does not respond.” Pa.R.C.P. 1035.3(a), (b), (c) and (d). (emphasis added)

Because Danylo failed to file a response to the motion for summary judgment, we could grant summary judgment to Trumbetic for that reason pursuant to subdivision (d) of Rule 1035.3 if the facts alleged support such a judgment. Harber Philadelphia Center City Office Ltd. v. LPCI Limited Partnership, 764 A.2d 1100 (Pa. Super. 2000), appeal denied, 566 Pa. 664, 782 A.2d 546 (2001). However, we shall proceed to analyze the uncontroverted facts and determine if Trumbetic is entitled to judgment as a matter of law.

As we observed, Kelley clearly signed a form to change the beneficiary of his IRA from Danylo to Trumbetic. Pursuant to the usual practice of Mellon Bank, Kelley had a copy of that document delivered to him and the document came into the possession of Trumbetic following Kelley’s death. The question is whether or not the fact that the original of that document is not with Citizens Bank is fatal to Trumbetic’s claim to the proceeds. We conclude that it is not.

Initially, we observe that there was no evidence presented that the IRA agreement required Citizens Bank to have the document in order for the change in beneficiary to be effective. Even if there was such a requirement, the failure to have the original on file at Citizens Bank is not fatal to Trumbetic’s claims. In In re Estate of Golas, 751 A.2d 229 (Pa. Super. 2000), there was such a requirement. Nevertheless, Superior Court agreed with the trial court that the change of beneficiary was effective even though the decedent in that case did not even sign the change of beneficiary form. It was effective because the decedent had done everything he could to formally comply with the required procedure to effect the change in beneficiary and the evidence established his clear intent to make the change. The same result occurred in the context of death benefits from a pension plan in Dale v. Philadelphia Board of Pensions and Retirement, 702 A.2d 1160 (Pa. Commw. 1997).

In the case at bar, Kelley executed a change of beneficiary fonn designating Trumbetic as the sole beneficiary of his IRA. His intent to do so was confirmed when he inserted her name as beneficiary on the distribution election form. We therefore hold that Trumbetic is the rightful owner of the funds in the IRA account.

Finally, Trumbetic filed a motion for an award of attorney fees as a sanction for obdurate conduct under 42 Pa.C.S. §2503(7). Attached thereto is a proposed order which is drawn so as to award an amount of attorney fees to the plaintiff. At the time of oral argument, counsel for Trumbetic submitted a detailed four-page document which described counsel’s services, including the date of service and the amount of time expended. Based upon the time expended and counsel’s hourly rate, the total fee computation is $4,025.

We shall deny the claim for counsel fees because counsel failed to follow the correct procedure to make the claim. Pursuant to Pa.R.C.P. 206.1(a)(2) and 239.2 we adopted L.R. 206.1(a) which, among other things, designated an application for attorney fees under 42 Pa.C.S. §2503 as a “petition” which shall be governed by Pa.R.C.P. 206.1 et seq. We also adopted L.R. 206.4(c) which describes the court’s procedures for the issuance of a rule to show cause. If Trumbetic had followed the required procedure, a proper record could have been made which might have justified an award of attorney fees. Her failure to do so results in a denial of her claim.

An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the court declares Judith Trumbetic to be the rightful owner and entitled to the proceeds of Citizens Bank IRA account na**********? together with accumulated interest and earnings thereon.

The motion for counsel fees is refused.


author: KISTLER, J.,

text:
    Brown v. Seyler

      April 20, 2007

      David L. Lutz, for plaintiff.

      Joseph P. Green, for defendant.
   KISTLER, J.,

Presently before this court is the motion for new trial limited to the issue of plaintiff’s non-economic damages filed by Peggy Brown (plaintiff) on November 13, 2006. For the reasons that follow, plaintiff’s motion for new trial is denied.

BACKGROUND

Plaintiff sustained injuries, most notably in her lower back, after her car collided with defendant’s car on September 26, 2002. Because defendant admitted he acted negligently in the operation of his vehicle, the jury trial was held strictly on the issue of damages on November 8, 2006. After deliberations, the jury awarded plaintiff $2,800 for uncompensated medical bills and $300 for pain and suffering.

DISCUSSION

Plaintiff contends that she is entitled to a new trial based on the jury’s inadequate verdict with regard to her claim of non-economic damages (a.k.a. pain and suffering). She asserts that the $300 award is contrary to the weight of the evidence and “shocks the conscience.”

“The decision whether to grant a new trial is within the sound discretion of the trial court.” Carroll v. Kephart, 717 A.2d 554, 559 (Pa. Super. 1998). “[A] new trial should be granted only in truly extraordinary circumstances, i.e., ‘when the jury’s verdict is so contrary to the evidence as to shock one s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. ’ ” Armbruster v. Horowitz, 572 Pa. 1, 9-10, 813 A.2d 698, 703 (2002), citing Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994), quoting Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). (emphasis original) “It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by the witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s.” Carroll, 717 A.2d at 559, quoting Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994). “Generally, a verdict will not be disturbed merely on account of the smallness of the damages awarded or because the reviewing court would have awarded more.” Id., quoting Nudelman v. Gilbride, 436 Pa. Super. 44, 50, 647 A.2d 233, 236 (1994).

Here, a number of witnesses, including doctors, family members and friends, testified to the intense pain plaintiff has suffered since the car collision. However, to rebut this testimony, defendant elicited from plaintiff prior incidents of hospitalization, which she denied in her deposition, and also testimony that she was riding dirt bikes for sport within months of the accident.

It was certainly within the province of the jury to weigh the aforementioned testimony, and by doing so, the jury figured the amount of pain suffered by plaintiff was limited to $300. Although a seemingly minimal amount to plaintiff, the court will not disturb this award “merely on account of the smallness.”

Finally, in plaintiff’s brief, she relies on Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000); Marsh v. Hanley, 856 A.2d 138 (Pa. Super, 2004); and Womack v. Crowley, 877 A.2d 1279 (Pa. Super. 2005), to support her contention that she received an inadequate verdict. After review of these cases, it is clear that the verdicts were later found inadequate and inconsistent because the jury awarded the full amount of damages for uncompensated medical expenses, but zero damages for pain and suffering. The instant case is distinguishable to the extent that plaintiff was awarded some damages for pain and suffering.

As such, a new trial is not warranted in this case. The jury verdict was neither against the weight of the evidence nor did it shock the conscience of this court.

ORDER

And now, April 20, 2007, plaintiff’s motion for new trial limited to the issue of plaintiff’s non-economic damages is hereby denied.


author: FORADORA, P.J.,

text:
    National Fuel Gas Distribution Corporation v. Greenland Construction Inc.

      April 10, 2007

      Mark E. Mioduszewski, for plaintiff.

      John M. Speidel, for defendant.
   FORADORA, P.J.,

INTRODUCTION

Now before the court are preliminary objections filed by defendant Greenland Construction Inc. Greenland therein demurs to the allegations appearing in the complaint filed by defendant National Fuel Gas Distribution Corporation, claiming that because the parties’ respective duties are defined by statute, National Fuel cannot maintain a cause of action sounding in general negligence. Greenland further argues that because its averments fail to implicate the relevant statute, National Fuel cannot pursue an action in negligence under the statute. National Fuel disagrees with both propositions, contending that the statute does not preclude, but merely supplements, common-law negligence, and arguing that the complaint avers facts sufficient to sustain a claim that Greenland violated its statutory duties. After receiving briefs from both parties, the court held oral arguments on March 30, 2007.

FACTUAL AND PROCEDURAL HISTORY

In its sole count for negligence, the complaint sets forth the following factual averments: During the performance of excavating work in connection with a sewer project in Brockway, Jefferson County, Pennsylvania, Greenland properly placed a “line locate request” through the Pennsylvania One Call System on December 2,2004. Pursuant to that request, National Fuel went to the excavation site and, placing flags that denoted the presence of a buried three-inch plastic gas line, accurately marked its line. While excavating near those flags, Greenland encountered a three-inch steel line and, assuming that the steel line somehow contained the plastic line (an impossibility that Greenland should have recognized, according to National Fuel), neglected to contact National Fuel about the discrepancy.

Proceeding upon its assumption, continues the complaint, Greenland resumed excavation using powered excavation equipment and completely severed National Fuel’s three-inch plastic mainline, which was located approximately 16 to 18 inches from the uncovered three-inch steel line. According to National Fuel, Greenland was negligent for continuing to assume that the plastic line lay inside the steel line and for continuing its excavation work without contacting National Fuel or otherwise investigating the discrepancy after finding the steel line where the flags indicated a plastic line.

DISCUSSION

In Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. 2005), the Superior Court specified the following standard for determining whether to grant a demurrer:

“When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the objections.”

The outcome of Greenland’s objections depends upon a fair reading of the applicable statute.

The One Call Act: Excavation and Demolition, 73 P.S. § 176 et seq., does indeed impose duties upon both facility owners and contractors conducting excavation operations. Among other duties, facility owners must “mark, stake, locate or otherwise provide the position of the facility owner’s underground lines” within certain parameters, section 177(5)(i), while contractors must exercise due care and take “all reasonable steps necessary to avoid injury or otherwise interfere with all lines where positions have been provided to the contractor by the facility owners.” Section 180(4). Because violation of its provisions constitutes a summary offense, the Act may be enforced by the attorney general, any district attorney, or the Department of Labor and Industry, in consultation with the attorney general. Section 182.2(a). The Act articulates the potential penalties to which a violator may be subject. Section 182.2(b)-(d).

The Act also speaks to civil remedies and specifies that its provisions “shall not affect any civil remedies for personal injury or property damage, except as otherwise specifically provided for in this Act.” Section 182.2(e). Because the Act nowhere purports to otherwise limit claims for property damage, the court can only conclude that the legislature intended to supplement, not supplant, the existing law, including the common-law body of precedent surrounding negligence.

When giving effect to a statute, the court must integrate all of its provisions to ascertain and effectuate the intention of the legislature. 1 Pa.C.S. §1921(a). The best indication of that intent is the plain language of the statute. Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004). The plain language of this statute declares that all civil remedies for personal injury and property damage actions arising from improperly performed excavation work remain available unless specifically voided by the Act. Assuming the Act’s nonexistence, National Fuel could recover at common-law if it could prove that Greenland owed it a duty to carefully excavate at the excavation site; that Greenland breached that duty; and that Greenland’s breach resulted in the severed plastic line and subsequent damages asserted by National Fuel. See Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46, 60, 911 A.2d 1264, 1272-73 (2006) (“In any case sounding in negligence, a [complaining party] must demonstrate: (1) a duty of care; (2) the breach of the duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the [complaining party]”). Not only does the Act not eliminate that common-law cause of action, but section 182.2(e) affirmatively protects it.

That conclusion finds support elsewhere in the Act. Section 180, defining the duties of contractors, twice indicates that contractors owe a duty of care beyond the scope of the Act. “The contractor who has complied with the terms of this Act and who was not otherwise negligent” shall not be subject to liability, says the statute. Section 180(12)(i). (emphasis added) The subparagraph immediately following then provides an offset to liability “[w]here a contractor has failed to comply with the terms of this Act or was otherwise negligent,” but where the facility owner was negligent, as well. Section 180(12) (ii). (emphasis added)

Reading the Act as a whole, the court cannot reasonably conclude that the legislature intended to eliminate a common-law negligence cause of action for conduct described in the statute. Rather, the above provisions clearly entertain the possibility that an entity could comply with the Act but still be “otherwise negligent,” i.e., they imply that entities engaged in excavation procedures could wrong one another in more than one way under the law. The legislature merely attempted to regulate the conduct detailed in the statute and otherwise penalize actions in violation of what it deemed to be appropriate excavation procedures.

The court agrees, however, that the complaint as it exists does not adequately assert a cause of action under the Act. In its averments, National Fuel mentions that Greenland placed a “line locate request” through the Pennsylvania One Call System and that National Fuel responded by accurately marking and identifying its three-inch plastic line. National Fuel asserts these alleged facts under “Count I — Negligence”—the only count contained in the complaint. Nowhere in that document, however, does National Fuel actually mention the Act or any provisions thereof. Nowhere does it indicate that it intends to hold Greenland liable for both common-law negligence and violation of the Act.

Under our Rules of Civil Procedure, the pleadings in a case must apprise a defendant of the asserted claim and summarize the facts essential to support the claim. Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 235, 622 A.2d 355, 357 (1993). According to Philadelphia County Intermediate Unit, No. 26 v. Department of Education, 60 Pa. Commw. 546, 432 A.2d 1121 (1981), that means that pleadings must be specific enough to allow the responding party to prepare a defense. Id. at 552, 432 A.2d at 1125 (citing Commonwealth v. City of Jeannette, 9 Pa. Commw. 306, 305 A.2d 774 (1973)).

Admittedly, the facts essential to support claims for both general negligence and violation of the Act appear to be largely the same. However, a complaint should not require the opposing party to guess what theories of liability the complainant intends to advance. Greenland has a legal right to know whether it must defend itself only against a common-law claim of negligence or also against a claim that it violated 73P.S. §176 et seq. Accordingly, National Fuel must, if it intends to proceed upon the latter theory, better articulate its statutory claim in its complaint.

ORDER

And now, April 10, 2007, it is hereby ordered and decreed that

(1) Defendant’s preliminary objections are denied in part and granted in part.

(a) Plaintiff may proceed upon a common-law theory of negligence.

(b) As drafted, plaintiff’s complaint is insufficient to support a claim for liability under 73 PS. §176 et seq.

(2) Plaintiff shall have 20 days to amend its complaint to include a claim under the above-mentioned statute.

      . The same language can be found under 73 P.S. §179, where the Act identifies designers’ duties and indicates that they, too, can fail to comply with the Act and be otherwise negligent. Clearly the words “otherwise negligent” were not meaningless anomalies.