author: KUNSELMAN, J.,

text:
    Baird v. Macklin

      C.P. of Beaver County,
    no. 11476 of 2008.

      J. W Hernandez-Cuebas, for plaintiff.

      Daniel B. McLane and Paula J. Allan, for defendants.

      December 11, 2008
   KUNSELMAN, J.,

This court was asked to rule on preliminary objections filed by the defendant to plaintiff’s complaint. For the reasons that follow, we are sustaining the objections in part and overruling the objections in part.

BACKGROUND

Plaintiff is a minority member in the limited liability company known as Bee Property Management LLC. The defendants, Richard and Lisa Macklin are the two other members of this company. Plaintiff filed this lawsuit claiming three counts: an accounting, a partition of property and a dissolution of the LLC.

Defendants filed preliminary objections to the complaint on numerous grounds. First, they maintain that plaintiff cannot sue them individually, and therefore the complaint must be dismissed in its entirety. They also argue that each of the three counts of the complaint should be dismissed for various reasons. Defendants further maintain that certain paragraphs of the complaint should be stricken as scandalous or impertinent matter. Finally, defendants claim that the plaintiff’s claim for attorney’s fees should be stricken.

We note that we were severely hampered in making our decision on the defendants’ preliminary objections, because plaintiff failed to file a responsive brief setting forth his arguments and the legal authority to support his position on these issues, as required by the local rules of civil procedure. Additionally, there is also a lack of case law in Pennsylvania regarding the claims asserted by the defendants. Having thoroughly researched the issues raised by the defendants, we will address each of the defendants’ objections to the complaint.

A. Can Plaintiff Sue Defendants in Their Individual Capacity?

In their first preliminary objection, defendants maintain that the complaint should be dismissed in its entirety because the law regarding limited liability companies prohibits them from being sued as individuals. They rely on section 8991 of the LLC law to support their position. That section provides:

“8991 Parties to actions

“(b) Members as parties — a member of a company is not a proper party to an action or proceeding by or against the company, except where the object is to enforce the right of a member against, or his liability to, the company.”

At first glance, it would appear that defendants cannot be sued in their individual capacity. Indeed, under most circumstances, protection from individual liability is one of the protections the law gives to the members of a limited liability company. However, the statute provides an exception where the object of the lawsuit is to enforce the right of a member against the company.

Defendants have cited no case law to support their position. Our research found no case law addressing this issue in Pennsylvania, since an LLC is a relatively new legal entity in this state.

To find authority regarding defendants’ argument, we looked to other jurisdictions, where a minority member of an LLC filed a claim for dissolution. Pennsylvania’s statute, section 8991(b) of the LLC law, is identical to the statutes of several other states, including New York, Texas and South Dakota, to name a few.

We found that claims for dissolution of an LLC have been filed in many different forms. Some have captions naming individual members; some also list the LLC as the sole defendant or as a defendant in addition to the individual members. Others used only an “in re [ABC] company” designation in the caption. It does not appear that plaintiff’s naming the other members of the LLC as individual defendants is fatal to his claim. In fact, it appears that this is the type of lawsuit where it is appropriate to name the individual members of the company as parties. See Adler v. Touberg, 881 A.2d 1267 (Pa. Super. 2005) (president and 50 percent shareholder of medical corporation sued other shareholders requesting appointment of a custodian; medical corporation was not named as a party defendant).

In many dissolution claims in states with statutes identical to Pennsylvania’s statute, one member seeking dissolution of an LLC filed suit against the other individual members of the LLC. See e.g, Caplash v. Rochester Oral Maxillofacial Surgery Assoc. LLC, 851 N.Y.S.2d 769 (2008) (one member of LLC filed suit against LLC and second member to dissolve LLC); Horning v. Horning Construction LLC, 816 N.Y.S.2d 877 (2006) (member sued LLC and two other members to dissolve LLC); see also, Haley v. Talcott, 864 A.2d 86 (Del. Ch. 2004) (although Delaware statute not identical to PA, Delaware Code limits liability of LLC members, and provides that member can seek judicial dissolution of LLC, which one member requested in lawsuit against other member).

We note that this is not a case where plaintiff is seeking money damages or personal liability of the defendants. Instead, plaintiff is exercising his legal right to petition the court to dissolve the LLC, of which these individual defendants are members. He is essentially asking the court to decide his rights as a member of an LLC vis-á-vis the rights of the other members of the LLC. The statute regarding dissolution, section 8972, does not set forth how a minority member must petition the court, only that the member has the right to do so. That section provides, “On application by or for a member, the court may order dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the operating agreement.” 15 Pa. C.S. §8972.

While it is true that plaintiff may ultimately recover money, if dissolution is ordered and a receiver is appointed to dissolve the company, dissolution is a statutory remedy. Plaintiff has not set forth a claim for money damages in any of the counts of this complaint. Therefore, defendants’ concerns about being named as defendants in their individual capacity are misplaced.

Based on this discussion, we will overrule defendants’ preliminary objection, in part, and allow the plaintiff’s complaint, naming the individual members of the LLC as defendant parties to this action to proceed.

However, we are concerned about plaintiff’s claim against the Macklins d/b/a Bee Property Management LLC. Defendants comment on this deficiency in a footnote to their brief. We do not believe that listing the individual Macklin defendants as d/b/a/ Bee Property Management LLC is a proper designation, because the Macklins are not the only members of the LLC. Since we agree with defendants that this is an improper designation, we are sustaining the preliminary objection in part.

Plaintiff must either name the LLC as a separate defendant, which was done in most of the cases we found (see Caplash, Horning, and Haley, supra) or drop the LLC as a party to the suit, which was also done in at least one of the cases we found. See e.g, Kirksey v. Grohmann, 754 N.W. 825 (S.D. 2008) (where two sisters sued the other two sister members of a farming LLC, requesting judicial dissolution, without naming the LLC as a party)-

Because we are sustaining the preliminary objection in part, as it relates to the designation of the individual Mackin defedants as d/b/a Bee Property Management LLC, we will give plaintiff 30 days to file an amended complaint consistent with this decision.

B. Does Plaintiff’s Complaint State a Legally Sufficient Claim for Dissolution of the LLC?

Defendants maintain that Count III of plaintiff’s complaint, for dissolution, should be dismissed under Pa. R.C.P. 1028(a)(4) because it is legally insufficient to state a claim. When we consider a preliminary objection in the nature of a demurrer pursuant to Pa.R.C.P. 1028(a) (4), this court “must accept as true all well-pleaded facts and all reasonable inferences deducible therefrom, and determine with certainty that no recovery is possible.” McNeil v. Jordan, 586 Pa. 413, 435, 894 A.2d 1260, 1273 (2006). (citations omitted) This standard of review sometimes is couched in terms of a prima facie case. For example, in Weber v. Bell Telephone Company, 415 Pa. 292, 295, 203 A.2d 554, 556 (1964), the Pennsylvania Supreme Court held that where the complaint does not facially disclose a prima facie case, the trial court does not err in sustaining a demurrer.

In order to set forth a prima facie case for dissolution of an LLC, section 8972 of the LLC law requires a plaintiff to allege that it is not reasonably practicable to carry on the business in conformity with the operating agreement. 15 Pa. C.S. §8972. Plaintiff fails to allege this necessary requirement in the complaint. Nowhere in the complaint does plaintiff allege that there is a deadlock in the management of Bee Property Management LLC. Plaintiff also fails to allege that the business is now a failure or is unprofitable. Plaintiff does not claim that the business cannot be run in conformity with the operating agreement.

Alternatively, a plaintiff can assert grounds for dissolution under the specific terms of the LLC’s operating agreement. The operating agreement in this case provides that the company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following: (a) the written direction of the members, or (b) the entry of a decree of judicial dissolution under section 8792 of the LLC law. Plaintiff does not allege either of these events in his complaint.

Because plaintiff does not assert facts which would allow him to proceed statutorily or contractually with a claim for dissolution, defendants’ preliminary objection in the nature of a demurrer as to Count III of the complaint is sustained.

Defendants are requesting us to dismiss this count of the complaint with prejudice. We do not believe this is appropriate at this juncture. “Where atrial court sustains preliminary objections on the merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend.” Jones v. City of Philadelphia, 893 A.2d. 837, 846 (Pa. Commw. 2006) (citing Harley Davidson Motor Co. v. Hartman, 296 Pa. Super. 37, 42, 442 A.2d. 284, 286 (1982 ). If the pleading can be cured by an amendment, a court “must give the pleader an opportunity to file an amended complaint. This is not a matter of discretion with the court but rather a positive duty.” Framlau Corporation v. County of Delaware, 223 Pa. Super. 272, 276, 299 A.2d 335, 337 (1972). (emphasis added) (citations omitted)

Plaintiff has alleged numerous facts, which may give him grounds to state a cause of action for dissolution. Therefore, we will grant him leave to file an amended complaint within 30 days.

C. Does Plaintiff’s Complaint Allege a Proper Basis Under Which Plaintiff Would Be Entitled to a Partition of the Property?

In Count II of his complaint, plaintiff seeks a partition of certain real property located in Beaver County. Plaintiff alleges that the property is held by the parties as tenants in common. Plaintiff attached a copy of the deed for the property in question to his complaint as an exhibit. The deed plainly identifies Bee Property Management LLC as the grantee and owner of the property. Thus, it is obvious on the face of this document, that the plaintiff and the individual defendants do not own the subject property as tenants in common.

The LLC law, 15 Pa.C.S. §8923, and the operating agreement both prohibit the individual members of the LLC from holding title to LLC property in their individual names.

Plaintiff cannot possibly state a valid cause of action for partition, and therefore, the preliminary objection as to Count II of the complaint is sustained. The count for partition in the complaint will be dismissed with prejudice. The trial court does not have to grant leave to amend a complaint where there is no possible recovery under a better statement of the facts. Jones v. City of Philadelphia, 893 A.2d 837, 846 (Pa. Commw. 2006). There is no way plaintiff’s claim for partition can be cured by an amendment. Because we are sustaining defendants’ preliminary objection regarding the partition claim based on the plain language of the deed itself, we need not address defendants’ arguments under Rules 1553 and 1554(b) of the Rules of Civil Procedure.

D. Does Plaintiff’s Complaint State a Separate Cause of Action for Accounting?

Defendants argue that Count I of the plaintiff’s complaint inappropriately asserts a separate cause of action for an accounting. Defendants’ brief is devoid of any Pennsylvania case law to support their claim, and our research found no cases from this jurisdiction regarding members of an LLC alleging a claim for accounting.

It appears from our research in other jurisdictions that a claim for an accounting is a common count in a lawsuit claiming dissolution of an LLC. See e.g, Fulp v. Holt, 284 Ga. 751. There are Pennsylvania cases where a party has successfully alleged a separate cause of action for accounting. Those cases did not involve an LLC, but involved other fiduciary relationships between individuals. See Lackner v. Glosser, 892 A.2d 21 (Pa. Super. 2006).

Defendants argue that in Pennsylvania, a party is only entitled to an accounting when there are underlying claims that warrant a recovery of damages. This is true for a claim of accounting at law. Under Rule 1021 of the Rules of Civil Procedure, a plaintiff may seek an accounting as part of his remedy at law. However, the right to relief “pursuant to Rule 1021 is merely an incident to a proper assumspit claim.” Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 555, 531 A.2d 1122, 1123 (1987).

In this case, plaintiff cannot assert a claim for an accounting pursuant to Rule 1021, because plaintiff did not assert a breach of contract claim or any other claim for assumpsit. Plaintiff did not allege that he paid funds to the defendants or to the LLC that were due and owing and properly payable. Plaintiff did not claim that he overpaid sums owed to the LLC or the Macklins. Thus, plaintiff has not stated a cause of action at law for an accounting.

A plaintiff in Pennsylvania may also assert a separate action for an accounting in equity, provided there is a sustainable underlying equity claim. See Koch v. First Union Corp., 2002 WL 372939 (Pa.Com.PL Phila. Cty. 2002). Thus, plaintiff must state another valid equitable cause of action in order to proceed with a claim for accounting.

In requesting an accounting, a complaint “seeks to turn over to the party wrongfully deprived of possession, all benefits accruing to defendant by reason of its wrongful possession.” Boyd & Mahoney v. Chevron U.S.A., 419 Pa. Super. 24, 36, 614 A.2d 1191, 1197 (1992). An equitable accounting is proper where a fiduciary relationship exists between the parties, where fraud or misrepresentation is alleged, or where the accounts are mutual or complicated, and plaintiff does not possess an adequate remedy at law. Rock v. Pyle, 720 A.2d 137, 142 (Pa. Super. 1998).

In this case, plaintiff alleges numerous facts which seem to indicate that he believes the company has not been paid certain funds and/or that the defendants have not properly distributed profits of the LLC and have not provided information to him as a member of the LLC. Taking all well pleaded facts as true, for purposes of deciding these preliminary objections, plaintiff may be able to allege a separate cause of action if the defendants and/or the LLC is holding money that is properly due to him, but he has not alleged a legally valid claim at this point. In his complaint, plaintiff fails to allege any of the required elements of the cause of action for an accounting: the existence of a fiduciary relationship; fraud or misrepresentation; that the accounts are mutual or complicated, or that plaintiff does not possess an adequate remedy at law. Thus, Count I of plaintiff’s complaint in its current form is legally insufficient to state a separate cause of action for an accounting, and we will sustain defendants’ preliminary objection to this count.

At this point of the litigation, we are unsure whether plaintiff will be able to allege a legally sufficient claim for dissolution. Assuming he can, plaintiff should also be given the opportunity to amend his complaint to state a legally sufficient equity claim for an accounting. We will grant plaintiff leave of court to file an amended complaint within 30 days.

E. Should Certain Paragraphs of the Complaint Be Stricken Because They Contain Scandalous and Impertinent Matter?

Defendants filed a preliminary objection seeking to dismiss paragraphs 16, 17, 18 and 21 of the complaint because they allegedly contain scandalous and impertinent matter. Again, plaintiff offered no argument concerning the validity or necessity of the contested paragraphs.

Defendants maintain that because these paragraphs mention legal entities which are not at issue in this litiga-

tion, they are wholly unnecessary to the pleading. Pa.R.C.P. 1028(a)(2) permits a motion to strike for the purpose of preliminarily objecting to the pleading, based upon the inclusion of scandalous or impertinent matter. White v. George, 2004 WL 1739862 (Pa.Com.Pl. Mercer Cty. 2004); Calvert v. New Freedom Borough, 21 D.&C.4th 303 (York Cty. 1993).

Scandalous and impertinent has been defined as “immaterial and inappropriate to the proof of the cause of action.” Commwealth, Department of Environmental Resources v. Peggs Run Coal Company, 55 Pa. Commw. 312, 320, 423 A.2d 765, 769 (1980). The right to strike impertinent matter should be exercised sparingly; unless there is prejudice, the motion should not be granted. SEPTA v. Philadelphia Transportation Co., 38 D.&C.2d 653, 656 (Phila. Cty. 1965). Further, where matter is impertinent but not injurious, it need not be stricken. Id.

The allegations set forth in paragraph 16 appear to be a follow-up to the allegations of paragraph 15, where plaintiff alleges that the operating agreement of the LLC at issue in this case does not provide for a distribution of profits. In paragraph 16, plaintiff claims that, under a fictitious name, he personally had a separate agreement with another company to maintain trucks owned and leased by the other company. We fail to see how this paragraph relates to any of the counts in plaintiff’s complaint. The inclusion of this information in the complaint is immaterial to the causes of action and therefore inappropriate, and shall be stricken.

Paragraphs 17 and 21 set forth allegations concerning other legal entities, Bee Mac Trucking LLC, R & B Trucking and Bee Mac Equipment, none of which appear to be at issue in this case. Accordingly, the inclusion of this information is immaterial to the causes of action raised by the plaintiff. Thus, those paragraphs shall also be stricken.

Finally, paragraph 18 of the complaint contains allegations about a fuel tank which was located on the property owned by Bee Property Management which is the subject of plaintiff’s litigation. At this point, we cannot discern the relevance of this paragraph to plaintiff’s claims. Since we are allowing plaintiff to amend his complaint with respect to the counts for dissolution and accounting, and this information may be relevant to those claims, we will not strike this paragraph at this juncture. When plaintiff files an amended complaint, it will hopefully set forth other facts which might explain the relevance of these allegations.

F. Can Defendants State a Claim for Attorney s Fees?

Defendants’ final preliminary objection challenges plaintiff’s claim for attorney’s fees. Defendants maintain that these fees are not recoverable under Pennsylvania law absent express statutory authority, clear agreement between the parties, or the existence of some other established exception. We agree.

The defendants cite the Pennsylvania Supreme Court case of Corace v. Balint, 418 Pa. 262, 271, 210 A.2d 882, 887 (1965) to support their position. In that case, the Supreme Court cited authority dating back to 1906, for the premise that the courts have never allowed an adverse party to recover counsel fees absent some statutory authority that allows for a recovery of such fees. Smith v. Equitable Trust Company, 215 Pa. 413, 417, 64 A. 591, 592 (1906).

Since Plaintiff fails to allege the basis for his claim of attorney’s fees, the defendants’ preliminary objection is sustained. If plaintiff has a valid basis to allege the recovery of attorney’s fees, he may set forth this claim in his amended complaint.

CONCLUSION

Based on the discussion herein, we are sustaining the preliminary objections in part and overruling them in part. We therefore enter the attached order.

ORDER

And now, December 11, 2008, with respect to defendants’ preliminary objections to plaintiff’s complaint, it is hereby ordered and decreed as follows:

(1) The objection concerning the naming of the defendants in their individual capacity is overruled in part and sustained in part.

(2) The objection concerning the legal sufficiency of Counts I and III of the complaint are sustained. Those counts are dismissed without prejudice.

(3) The objection concerning the legal sufficiency of Count II of the complaint is sustained. This count is dismissed with prejudice.

(4) The objection concerning scandalous and impertinent matter contained in certain paragraphs of the complaint is sustained with respect to paragraphs 16,17 and 21. Those allegations are dismissed. The objection to paragraph 18 is overruled at this time.

(5) The objection concerning plaintiff’s request for counsel fees is sustained. This claim for relief is dismissed without prejudice.

(6) Plaintiff is hereby granted leave to file an amended complaint consistent with this memorandum opinion and order within 30 days.

      . We also believe it is inappropriate for plaintiff to name himself as a party who is d/b/a Bee Property Management LLC since he is not the only member of the LLC. This designation should be dropped from the caption on the part of the plaintiff.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Tolley v. Tolley

      C.P. of Monroe County,
    no. 3592 CV 2000.

      Timothy B. Fisher, for plaintiff.

      Barry J. Cohen, for defendant.

      Robert C. Lear, Divorce Master.
    August 2, 2006
   ZULICK, J.,

Plaintiff, Carolyn Tolley (Wife), and defendant, Roy R. Tolley (Husband), were married on June 1, 1988. On May 20, 2000, Wife filed a complaint requesting a divorce, equitable distribution, counsel fees, costs, alimony, custody and child support. Husband filed an answer, new matter and a counterclaim. The parties filed affidavits of consent at the initial master’s hearing on April 12, 2004.

The master filed a report on November 4, 2004. The parties both filed exceptions. On August 4, 2005, the Honorable Margherita Patti Worthington issued an order disposing of the parties’ exceptions to the master’s report. Wife’s exception seeking counsel fees was granted and Husband was directed to pay her counsel fees in the amount of $9,038.27. Wife’s petition to have Husband place the amount of her equitable distribution award, $325,675.08, in an escrow account in the names of both Wife’s attorney and Husband’s attorney pending final distribution was granted, the rest of Wife’s exceptions were dismissed. Husband’s request for a hearing on the tax ramifications of the distribution of property was granted and the case was remanded to the master for a further hearing on September 6, 2005. The rest of Husband’s exceptions were dismissed. The hearing on the tax ramifications before the master was held on January 12, 2006 after a number of continuances.

The master filed a supplemental report on January 30, 2006. At issue during the hearing on January 12, 2006 were the tax consequences of the sale or potential sale of two properties. The first was the sale of a condominium at 56 Stone Run Road in Bedminster, New Jersey, owned by Husband before the marriage and sold by him on September 24, 2004. The second was the proposed sale of the former marital residence at 30 Brook Trout Trail, Timber Trails, Pocono Pines, Monroe County, Pennsylvania. This property was awarded to Husband in the earlier master’s recommendation; Husband listed this property for sale in September 2005 for $629,000, but it had not been sold at the time of the 2006 master’s hearing. (NT 13.)

Wife and Husband filed timely exceptions to the master’s report. They submitted briefs and oral argument was heard on June 5, 2006.

FINDINGS OF FACT

(1) Husband and Wife married on June 1,1988. They separated on May 1, 2000.

(2) The parties have two children, Jennifer, bom December 19, 1990, and Ryan, bom August 24, 1992.

(3) Wife has primary custody of the two minor children.

(4) Husband owned a townhouse at 56 Stone Run, Bedminster, New Jersey before the parties married. He lived there from the date of purchase in 1984 until 1988. He rented the townhouse from 1988 to 2002. From May 1, 2002 to September 24, 2004, Husband lived in the townhouse. (NT 7.)

(5) Husband sold the New Jersey townhouse on September 24, 2004 for $409,900.

(6) The parties resided in a home at 30 Brook Trout Trail, Pocono Pines, during the marriage. Husband received this property in equitable distribution under the court’s order of August 4, 2005, and placed it on the market in September 2005, with a list price of $629,000. At the time of argument in this case, the property had not been sold.

(7) Husband had not filed his 2004 personal and corporate tax returns at the time of the hearing. He therefore had not yet taken the $250,000 tax exclusion for sale of a principal residence on the New Jersey townhouse. At the time of the hearing, he expected to take that exclusion. (NT 15.)

(8) Husband did not present expert testimony on the tax ramifications of the master’s recommended scheme of equitable distribution. Instead, he offered defendant’s exhibit R-3, a letter report from his certified public accountant, Ronald L. Binetti, to address the alleged tax consequences of the sale of the Bedminster, New Jersey townhouse. He also offered defendant’s exhibit R-4, a letter report from Mr. Binetti providing an estimate of possible taxes should the Pocono Pines property be sold. Both of these exhibits were admitted by the master over Wife’s hearsay objection.

(9) The Pocono Pines, Pennsylvania property had not been sold at the time of the hearing. This property became Husband’s principal residence after he sold the New Jersey property on September 24,2004. Husband had to hold the Pennsylvania property as his principal residence for two years from the sale of his previous principal residence, the New Jersey townhouse, in order to qualify for the $250,000 principal residence exclusion. The two-year holding period will elapse on September 24, 2006.

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, 551 A.2d 219, 225 (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).

“[Ajlthough 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).

The parties each filed exceptions to the master’s supplemental report and recommendation. I will first address Wife’s exceptions, which contended that the master improperly admitted the letter reports of Ronald Binetti C.P.A., offered by Husband.

The additional master’s hearing was scheduled due to Husband’s exception requesting the court to consider the tax consequences of the sale of the real property awarded to him. The original master’s recommendation simply awarded this real estate to Husband; it did not require him to sell these assets. Husband actually sold one of the properties, the Bedminster, New Jersey property, after the last master’s hearing, but before the master’s report and recommendation were filed. The master recommended that the New Jersey property become Husband’s asset, but did not require its sale. Likewise, the master recommended that Husband receive the Pocono Pines property but did not direct its sale. As the master noted in his supplemental report filed January 30, 2006, Husband was under no compulsion to sell anything.

Despite the fact that the hearing was being provided to allow Husband the opportunity to present evidence on tax ramifications, Husband did not offer expert tax testimony. Instead, Husband offered two letter reports from his accountant. Defendant’s exhibit R-3 was a letter report from Ronald L. Binetti, Husband’s certified public accountant, which addressed the alleged tax consequences of the sale of the Bedminster, New Jersey townhouse. Husband also offered defendant’s exhibit R-4, a letter report from Mr. Binetti, providing an estimate of possible taxes should the Pocono Pines, Pennsylvania property be sold. Both of these exhibits were admitted by the master over Wife’s hearsay objection. This was error.

The accountant’s written reports were hearsay under Pa.R.E. 801, which defines hearsay as follows:

“(c) Hearsay — ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Hearsay is not admissible pursuant to Pa.R.E. 802, unless a hearsay exception applies, which is not the case here. The master considered Mr. Binetti’s calculations in making his determination that Wife share in the tax consequences. Wife’s exception to the admission of these reports is granted.

The master’s supplemental report adjusted Wife’s share of equitable distribution by requiring her to accept $3,592.11 of the potential tax consequences of the sale of the Bedminster, New Jersey property. The master recommended no adjustment for the potential sale of the Pocono Pines property.

The Pennsylvania Divorce Code provides in 23 Pa.C.S. §3502(a) that the court shall equitably divide the parties’ marital property after consideration of relevant factors. One of these factors is found in subparagraph 10.1, which provides:

“(10.1) The federal, state, and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.”

The parties’ last equitable distribution hearing before remand was held on June 3, 2004. While the parties waited for the master’s recommendation, Husband took it upon himself to sell the Bedminster, New Jersey property, which was in part marital property, and to keep the proceeds of $409,900. The master calculated a tax consequence of $3,592.11 attributable to Wife’s share of the marital proceeds of this sale in his supplemental report and recommended that Wife’s share of distribution be lowered by that amount. A critical fact used by the master to make this determination was the basis assigned to this property in the improperly admitted report of Mr. Binetti. The master was presented with no other credible evidence relating to these facts. Therefore, the master’s recommendation will not be followed. Husband, having not met his burden of proof on this issue, will be given no adjustment to Wife’s share of this property for tax considerations.

Likewise, Husband is entitled to no adjustment for the “proposed” sale of the Pocono Pines property This property was owned by Husband before the marriage and was valued in the master’s first report and recommendation at $204,000 in May 1988 (the date of the marriage), and at $285,000 in May 2000 (the date of separation), for an $81,000 gain during the marriage. The master referred to Husband’s exhibit R-4 to determine the original cost of the land, house and improvements and the depreciation taken over the years. This was error, but I will not disturb his conclusion, because there is insufficient evidence in the record to make any determination of tax consequences for this asset.

I will next address Husband’s exceptions:

1. Husband contends that the master erred in calculating the portion of the tax that can be attributed to the marital relationship for the sale of the townhouse at 56 Stone Run, Bedminster, New Jersey, as the master did not consider both alternatives based on the Internal Revenue Service’s ruling on whether the townhouse was Husband’s principal residence at the time of sale.

Husband’s exception will be denied. Husband failed to provide evidence upon which the master could determine applicable tax consequences arising from the New Jersey real property sale. In addition to that lack of evidence, there was still a question at the time of the 2006 master’s hearing of whether Husband would be entitled to the principal residence exclusion of $250,000. Husband had not filed his 2004 U.S. tax return at the time of the January 2006 hearing. Additionally, as the master noted in his report, it was Husband’s decision to sell this property and create the tax issues.

Wife received IRA accounts as part of her share of marital property. If she elected to liquidate those accounts, she would have owed a penalty because she was not 59 1/2 years of age, in addition to having to pay income tax on the funds. No tax considerations were considered for her benefit on these assets, because she was not required to liquidate them.

The same holds true for Husband. He elected to sell this property and create tax consequences; the sale of the property was not mandated by the first master’s report, and recommendation on equitable distribution. Further, a witness who could have provided insight on the likely tax ramifications of this property sale, Husband’s accountant, was not secured to appear at the time of the remand hearing. Husband failed to present sufficient evidence for consideration of this exception.

2. Husband contends that the master erred in not considering the alternative that the sale of the property at 30 Brook Trout Trail, Timber Trails, Pennsylvania would not be subject to the $250,000 capital gain exclusion if that property were sold before September 24, 2006.

The sale of the Pocono Pines property is currently a hypothetical sale. Although Husband has listed the property for sale, he may or may not sell it in the near future. In any event, Husband failed to meet his burden of proof on this issue by failing to present expert evidence on the property’s basis and potential capital gain liability.

This exception is denied.

3. Husband contends that the master erred in concluding that there would be no federal tax and/or Pennsylvania tax due on the hypothetical sale of 30 Brook Trout Trail as a result of incorrectly applying the $250,000 capital gain exemption leaving the potential gain of $203,457 subject to taxation.

This exception is likewise denied because Husband failed to present admissible evidence upon which the master could consider potential tax ramifications of a sale of the Pocono Pines home. As noted above, this property has not been sold and, to the best of the court’s knowledge, no sale is imminent. Should Husband sell the home, he alone shall bear any tax liability.

4. Husband contends that the master erred in failing to admit evidence of Husband;'s deteriorated physical condition resulting from injuries sustained after the completion of the prior divorce hearings.

On November 15, 2005, Husband filed a motion to expand the subject content of the testimony at the hearing on the limited topic of the tax ramifications of the sale of the two properties. Argument was held on this matter before the Honorable Margherita Patti Worthington. On December 7,2005, Judge Worthington issued an order denying Husband’s motion. This ruling is now the law of the case and will not be disturbed. “Under [the] law of the case doctrine, a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of the same court or by a higher court in the earlier phases of the matter.” Signora v. Liberty Travel Inc., 886 A.2d 284, 290 (Pa. Super. 2005). This exception is denied.

ORDER

And now, August 2, 2006, upon consideration of plaintiff, Carolyn Tolley’s (Wife) and defendant, Roy R. Tolley’s (Husband) exceptions to the master’s supplemental report and recommendations of January 30,2006, it is ordered and decreed as follows:

(1) Wife’s exceptions are granted.

(2) Husband’s exceptions are denied.

(3) Carolyn Tolley, plaintiff and Roy R. Tolley, defendant, are divorced from the bonds of matrimony. The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered. Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending.

(4) All other provisions of this court’s order of August 4,2005 and the master’s recommendations filed with this court on November 4, 2004 not inconsistent with this order are incorporated herein by reference and the parties are directed to comply with them.

      . As noted by the master, Husband was under the obligation to pay Wife the sum of $325,675 to carry out the equitable distribution scheme. However, Husband could have obtained this cash from other sources, including by mortgaging real estate, that would not have required a sale.

      . Husband did not argue at trial that a hearsay exception applied to the reports. Husband’s counsel told him to bring his accountant as a witness, which Husband did not do. Husband testified that he thought his accountant could testify by telephone, but no such arrangements were made by Husband, his counsel or the master. (NT 11.)

      . Husband had not filed his 2004 U.S. tax return as of the time of the January, 2006 hearing, so his actual tax obligation had not been determined at that time.

      . The master concluded that even if Husband sells this property in the near future, which is speculative, there would be no tax consequences because of the $250,000 principal residence exclusion of 26 U.S. §121.


author: DiBONA, J.,

text:
    Grooms v. Ems

      C.P. of Philadelphia County,
    November Term 2003,
    no. 3792.

      Samuel Fishman, for plaintiffs.

      Amy F. Loperfido and Cy Goldberg, for defendants.
    March 1, 2006
   DiBONA, J.,

The plaintiffs brought this action against the defendants for alleged injuries sustained by the plaintiff, Caroline Grooms, in her motor vehicle accident with defendant driver, Kristina Ems, on January 11, 2002. Plaintiff Grooms was hit from the rear by defendant Ems so there was no contest as to liability. This case was tried between October 31, 2005 and November 2,2005, before this court with a jury. On November 2, 2005, the jury rendered a verdict in favor of the defendant.

This court believes that the jury was unfairly influenced by the prejudicial question of defendant’s counsel propounded to plaintiff Grooms on cross-examination concerning the amount that she purportedly received in a 1998 workers’ compensation action. Plaintiff’s counsel moved for a mistrial which this court took under advisement. This court, believing that said jury verdict could not be allowed to stand, granted a new trial to plaintiff Grooms.

In response to this court’s order pursuant to Pa.R.A.P. 1925(b) dated January 20, 2006, the defendant has filed a statement of matters complained of on appeal. However, the defendant has not filed a concise statement as Pa.R.A.P. 1925(b) requires. Therefore, this court will set forth the issue essentially raised in the statement.

ISSUE PRESENTED

Whether this court improperly granted a new trial to plaintiff based on the prejudicial question that defendant’s counsel asked the plaintiff on cross-examination?

LAWDISCUSSION

The grant of a new trial is a matter peculiarly within the competence of the trial court. The trial court’s discretion is considerable and its action will not be disturbed on appeal except where there has been a clear abuse of discretion, Cooley v. Jefferson Bank, 355 Pa. Super 1, 512 A.2d 713 (1986). In an action where damages are sought, any statement to the jury by counsel that calls the jurors’ attention to claims or amounts not supported by the evidence is prejudicial, Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657 (1969).

Here, defendant’s counsel brought into the trial a spurious question as to whether the plaintiff had received a payment of $100,000 in a prior workers’ compensation case entirely unrelated to the current action. Knowledge of this sum of money received by plaintiff could only prejudice the plaintiff’s case in front of the jury. In naming an amount which had previously been paid to plaintiff, counsel was suggesting to the jury something which in their minds takes the place of evidence. This question was clearly inflammatory and made the grant of a new trial by this court necessary because of the injustice of the jury’s verdict. The jury was obviously influenced by this prejudicial question.

In Clark v. Essex Wire Corporation, 361 Pa. 60, 63 A.2d 35 (1949), the Supreme Court said at pages 65 and 37, respectively:

“This court has said that the propriety of counsel’s arguments and remarks to the jury is to be determined by the trial court under all the existing facts and circumstances at trial and that an application... [for a mistrial] ... is addressed to the sound discretion of the trial court, and the refusal of a motion to that effect, because of objectionable remarks to the jury by counsel, is reviewable for abuse of discretion only.”

Under all the existing facts and circumstances at this trial, this court could not allow the jury’s verdict to stand because of defense counsel’s prejudicial question.

Accordingly, the grant of a new trial for p) aintiff should be affirmed.

      . Defendant Steven Coleman was the owner of the vehicle and not the driver. Accordingly, he was dismissed from the case.

      . Plaintiff Jesse Grooms had a claim for loss of consortium but failed to appear at the arbitration hearing. Therefore, this court dismissed his claim.

      . The statement filed by defendant is five pages long with 15 enumerated paragraphs.


author: CHESLOCK, J,

text:
    Kwak v. Ottaway Newspaper Inc.
    C.P. of Monroe County,
    no. 3423 Civil 2008.

      James M. Scanlon, for plaintiff.

      James P. Gregorowicz and Gayle C. Sproul, for defendant.
    October 16, 2008
   CHESLOCK, J,

This matter was commenced by plaintiff, Katarzyna Kwak, for defamation after a newspaper article reported that she was involved in an automobile accident whereby the plaintiff struck Kathryn R. Stevens on Route 611 near Pocono Creek Drive, Monroe County, Pennsylvania. After preliminary objections were filed to the initial complaint, plaintiff filed an amended complaint on July 17, 2008. On August 5,2008, the defendants, Ottaway Newspaper Inc., Ottaway Newspapers of Pennsylvania L.P., Ottaway Community Newspapers, Dow Jones and Company Inc., CT Corporation, News Corporation and Mike Sadowski (defendants) filed preliminary objections to plaintiff’s amended complaint. The defendants filed the following preliminary objections: (1) that the news reports are not materially false; (2) that the news reports are not capable of defamatory meaning; (3) that the amended complaint fails to allege defendants intended the alleged defamatory implication; and (4) the amended complaint is not properly verified. The matter was praeciped for oral argument and the court heard oral argument on October 6, 2008. At the time of oral argument, the defendants indicated that the plaintiff had properly verified her amended complaint and, therefore, that issue was moot. We will now determine the remainder of the defendants’ preliminary objections.

In her complaint, the plaintiff seeks damages for defamation as a result of two news reports regarding an automobile accident in which a pedestrian was hit and died. The preliminary objections filed by the defendants are in the nature of a demurrer. When considering preliminary objections in the nature of a demurrer, the court must accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom. Webb Manufacturing Company v. Sinoff 449 Pa. Super. 534, 537, 674 A.2d 723, 724 (1996). (citation omitted) The court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Title Insurance Company v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995), allocatur denied, 543 Pa. 699, 670 A.2d 145 (1995). (citation omitted) A demurrer maybe sustained only where the complaint is clearly insufficient to establish the pleader’s right to relief. MacGregor v. Mediq Inc., 395 Pa. Super. 221, 225, 576 A.2d 1123, 1125 (1990). (citation omitted)

If a demurrer is sustained, the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. Hoza v. Hoza, 302 Pa. Super. 72, 78, 448 A.2d 100, 103 (1982). (citation omitted) Atrial judge’s denial of amendment is proper only in limited circumstances, such as where the plaintiff has repeatedly failed to successfully amend the complaint or is unable to do so. Pennfield Corporation v. Meadow Valley Electric Inc., 413 Pa. Super. 187, 200, 604 A.2d 1082, 1089 (1992). (citation omitted)

Defendants, in their preliminary objections, argue that the plaintiff has failed to set forth a cause of action against them. The tort of defamation is in reality two separate and distinct causes of action. 12th Street Gym Inc. v. General Star Indem. Co., 93 F.3d 1158, 1163 (3d Cir. 1996). The two causes of action that fall under the umbrella of defamation are: slander and libel. Slander has been defined as: “defamation by words spoken”, that is the speaking of base and defamatory words which tend to prejudice the reputation, office, trade, business, or means of getting a living of another. Id. (citations omitted) A libel has been defined by the courts of this Commonwealth as: “a maliciously written or printed publication, which tends to blacken a person’s reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business profession.” Beckman v. Dunn, 276 Pa. Super. 527, 533, 419 A.2d 583, 586 (1980). (citation omitted) In essence, slander is defamation by spoken word, while libel is defamation via written or printed material. Sobel v. Wingard, 366 Pa. Super. 482, 531 A.2d 520 (1987).

Under Pennsylvania law, in order to support a claim for defamation, a plaintiff must allege and prove: (1) a defamatory communication; (2) pertaining to the plaintiff; (3) published by the defendant; (4) to a recipient who understands the communication to have a defamatory meaning with respect to plaintiff; (5) the recipient understands the communication in question was intended to apply to the plaintiff; and (6) the statement results in plaintiff’s injury. Puchalski v. School District of Springfield, 161 F. Supp.2d 395 (E.D. Pa. 2001). A defamatory statement is one that tends to harm the reputation of another so as to lower him in the estimation of the communication or deter third persons from associating or dealing with him. Id. (citation omitted) Accordingly, we must initially examine the alleged defamatory statement in context and determine if it is capable of defamatory meaning. Whether a statement made by a defendant can be construed as defamatory is a question of law for the court to decide. Rockwell v. Allegheny Health, Education and Research Foundation, 19 F. Supp.2d 401 (E.D. Pa. 1998). (citation omitted)

Two news reports were published by the defendant concerning the accident. The first report, published on April 17, 2007, was titled “Woman hit by car, killed on Route 611 in Tannersville last night,” and states in full:

“Kathryn R. Stevens, 32, of Tannersville, was walking on Route 611 near Pocono Creek Drive shortly before 11 p.m. when she was hit by a car and killed last night.

“The driver, KatarzynaKwak, 32, of Stroudsburg, was headed north, driving a 2003 BMW 5251.

“Pocono Township Police are investigating.

“Stevens was pronounced dead at the scene by Monroe County Deputy Coroner Robert Allen.”

The second report, published on April 18, 2007, was titled “Pedestrian hit, killed on Route 611,” and stated in full:

“Pocono Township Police are investigating an accident Monday night that killed a woman pedestrian.

“Police said that the woman, Kathryn R. Stevens, 32 of Tannersville was in the road on Route 611 near Pocono Creek Drive when she was hit by a northbound car.

“The driver, KatarzynaKwak, also 32, of Stroudsburg, apparently did not see Stevens in the road and could not stop her car in time to avoid hitting her.

“Stevens was pronounced dead at the scene by Deputy Coroner Robert Allen. An autopsy was scheduled for Tuesday morning.”

Applying the foregoing criteria to the above quoted communication, we conclude it is not a defamatory communication and is not the basis for injury to the plaintiff.

Our initial function is that of determining whether the communication at issue is capable of defamatory meaning. Black’s Law Dictionary defines defamation as the act of harming the reputation of another by making a false statement to a third person. Black’s Law Dictionary, West Group 1999 (7th ed.). Instantly, the plaintiff argues that the news reports are materially false in that the April 17,2007 article, states that Kathryn R. Stevens was walking along Route 611 when she was hit by a car driven by plaintiff. Plaintiff contends that the victim was lying in the road and not walking in the road and that clearly the April 17,2007 article states that she was walking in the road which was false. Although the plaintiff argues that the news reports are materially false, defendants argue that the report must be read in context and must convey a materially false fact about her. The facts in this case are that the victim was in the road whether lying or walking, the plaintiff struck her and the victim died as a result thereof. Although it may be false or misleading that the victim was walking in the road, we do not believe that it was a materially false representation and, therefore, we conclude that it is not a defamatory communication.

Defendants also argue that the reports are not capable of a defamatory meaning because it does not intend to harm the reputation of the plaintiff. In evaluating the news reports, we must consider the effects the article is fairly calculated to produce, “the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” Baker v. Lafayette College, 350 Pa. Super. 68, 80, 504 A.2d 247, 253 (1986). (citation omitted) We find there is nothing in these articles which would tend to harm the reputation of the plaintiff so as to lower her in the estimation of the community or deter third persons from associating or dealing with her. Although we agree it may be more significant for plaintiff to hit someone walking as opposed to lying in the roadway, we do not agree that this publication had the defamatory impact of creating the kind of harm which has grievously fractured her standing in the community. We find that the article clearly lists that the accident happened just shortly before 11 p.m. when it was dark and that the victim was a pedestrian who was unable to be seen by the plaintiff. Furthermore, the news reports indicate that the Pocono Township Police are investigating the matter and assigns no blame to the plaintiff. Further, we find that in a defamation action, plaintiff must establish either negligence or malice in order to recover damages. Negligence for the purposes of defamation actions is defined as a lack of reasonable care or diligence in ascertaining the truth. Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa. Super. 163, 185, 484 A.2d 72, 83 (1984). The news articles in question clearly state that the police are investigating and although we find that the first report indicated that the victim was walking, the second report published on April 18, 2007 indicates that the victim was in the road on Route 611 when she was hit. Accordingly, we find that the defendants took steps for reasonably ascertaining the truth as to the stance of the victim. We find that the news report is not capable of defamatory meaning.

Finally, defendants argue that plaintiff’s claim must fail because she has not alleged defendants intended to convey the alleged defamatory implication. Based on the reasoning above, we believe that this issue need not be addressed as we have found that the news reports are not materially false nor capable of defamatory meaning. We also believe that, given the fact that the plaintiff has amended her complaint unsuccessfully and given the specific facts of this case, we do not believe that an amendment can be accomplished successfully.

Accordingly, we will sustain the defendants’ preliminary objections in the nature of a demurrer and dismiss plaintiff’s amended complaint.

In light of the foregoing, we enter the following order;

ORDER

And now, October 16, 2008, upon consideration of defendants’ preliminary objections and the plaintiff’s response thereto, it is hereby ordered that defendants’ preliminary objections in the nature of a demurrer are sustained.


author: ASHWORTH, J„

text:
    Commonwealth v. Lawrence

      C.P. of Lancaster County,
    no. 5131-2006.

      Susan Mover, assistant district attorney, for Commonwealth.

      MaryJean Glick, senior assistant public defender, for defendant.
    November 3, 2008
   ASHWORTH, J„

Alvin Earl Lawrence has filed a direct appeal to the Superior Court of Pennsylvania from his judgment of sentence entered on August 22,2008, as finalized by this court’s denial of his post-sentence motions on September 3, 2008. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

I. BACKGROUND

At the conclusion of a jury trial on May 9, 2008, appellant Lawrence was found guilty of delivery of a controlled substance in a school zone. The basis for appellant’s conviction was a hand-to-hand cocaine sale to an undercover Lancaster City police officer on September 20, 2006.

On August 22, 2008, appellant was sentenced to a period of incarceration of 33 to 76 months in a state correctional institution. Appellant filed post-sentence motions, specifically a motion to modify sentence and a motion to vacate jury verdict as against the weight of the evidence. These motions were denied by order of September 3,2008. Atimely appeal to the Superior Court of Pennsylvania was filed on October 2, 2008.

Pursuant to this court’s directive, appellant furnished a statement of matters complained of on appeal which raises just one issue: whether the verdict was against the weight of the evidence.

II. DISCUSSION

Appellant solely raises a weight of the evidence challenge. Appellant claims the jury’s verdict of guilty of delivery of cocaine was so unreliable as to shock one’s sense of justice. (See appellant’s 1925(b) statement at ¶1.) A claim that the verdict is contrary to the weight of the evidence “concedes that there is sufficient evidence [to sustain the verdict], but nevertheless contends that the trial judge should find the verdict so shocking to one’s sense of justice and contrary to the evidence as to make the award of a new trial imperative.” Commonwealth v. Robinson, 834 A.2d 1160, 1167 (Pa. Super. 2003). See also, Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006). Our Supreme Court has summarized the standard to be applied in addressing a “weight of the evidence” issue:

“The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses____An appellate court cannot substitute its judgment for that of the finder of fact.... Thus, we may only reverse the lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice.” Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003). (citations omitted)

The Commonwealth’s evidence presented at the trial in this matter can be summarized as follows. On September 20,2006, Office Garrett Lowe, with the Selective Enforcement Unit in the Lancaster City Bureau of Police, was supervising a buy-bust detail operation in the City of Lancaster. (Notes of testimony, trial (N.T.T.) at 37, 39-42.) Officer Willard Smith and Officer Hyson were the undercover officers whose role it was to go into the high drug areas of the city and try to buy controlled substances from drug dealers. (Id. at 44, 46.)

Officer Smith testified that on September 20,2006, he and Officer Hyson parked their vehicle at the intersection of New Dorwart Street and Manor Street in the southwest area of the city. (N.T.T. at 48.) Officer Smith, who was seated in the passenger side of the car, spoke to a black male, whom he identified at trial as appellant, as he approached the vehicle. (Id. at 48, 55-56.) Officer Smith said he was interested in buying $20 worth of crack cocaine. (Id. at 49.) Appellant said he would be right back, crossed the street and entered a store on the corner. (Id.) When appellant returned to the vehicle, he handed Officer Smith a .2 gram bag of crack cocaine and Officer Smith handed appellant a marked $20 bill. (Id.) Appellant walked back toward the comer store. (Id. at 54.)

Officer Smith identified appellant as wearing a black baseball cap with an insignia on it, a black zip-up sweatshirt that was tied, a white t-shirt and blue jean denim “knickerbocker” shorts to his ankles. (N.T.T. at 52, 64, 68.) After the completion of the drug deal, Officer Hyson called the surveillance team and provided a description of appellant. (Id. at 53-54.) There was sufficient artificial lighting to clearly see appellant who was standing less than three feet from Officer Smith. (Id. at 54-55.) The officers then left the area and the surveillance team moved in and made the arrest of appellant. (Id. at 59.) Within minutes, Officers Smith and Hyson were called back to the area to identify the suspect, which they did. (Id. at 60.) Officer Smith positively identified appellant at trial as the individual in the arrest photos taken of appellant that same night. (Id. at 58; Commonwealth exhibit no. 2.)

The next witness for the Commonwealth was Officer Stanley Roache, a member of the Street Operation Group, who was assisting Officers Smith and Hyson with the drug detail on September 20, 2006. (N.T.T. at 84-86.) Office Roache testified that after receiving a “good deal sign” from the surveillance officer, Detective Rowland Breault, he and his partner drove to the intersection of Manor and Dorwart Streets and observed the subject, identified at time of trial as appellant, exiting the comer store. (Id. at 87.) They immediately took the subject into custody. (Id. at 87-88.) A search of appellant did not reveal the buy money so Officer Roache entered the comer store, which was unoccupied except for the store clerk, and found the marked $20 bill in the cash register. (Id. at 90-92.) Officer Roache positively identified appellant as the individual in the arrest photographs marked as Commonwealth exhibit no. 2. (Id. at 89, 94.)

Detective Breault identified Commonwealth exhibit no. 5 as a photocopy of a $20 bill made by him just prior to the drug detail on September 20, 2006. (N.T.T. at 99-100.) The serial number on the $20 bill retrieved from the comer store by Officer Roache matched the serial number on the photocopy of the money made by Detective Breault. (Id. at 106-107; see Commonwealth exhibit no. 4.)

Appellant took the stand in his own defense at trial. He testified that after playing video games with his friend, Quentin Murray, he left for home between 11:15 and 11:25 p.m. (N.T.T. at 143.) Appellant stopped in the comer store at Dorwart and Manor Streets to buy a 250 drink and a 250 cake with the 500 in his pocket. (Id. at 144, 151-52.) When he exited the store, he was surrounded by police and arrested. (Id. at 145.) He denied talking to the police, selling them drugs and giving the clerk in the comer store a $20 bill. (Id. at 143-44.) Appellant claimed when he entered the comer store there were four men, three black and one Puerto Rican, and one female in line at the counter. (Id. at 147-48.) He could not remember what these individuals were wearing, their ages, or whether the men had facial hair. (Id. at 148-50.) Appellant did state that the arrest photos of him were an accurate depiction of how he looked on the night of September 20, 2006. (Id. at 148.)

Quentin Murray confirmed appellant’s testimony. Specifically, Mr. Murray testified that he and appellant were playing video games at his house on the evening of September 20, 2006, and that appellant did not leave his home until approximately 11:30 p.m. (N.T.T. at 132-34.) Mr. Murray’s home at that time was approximately two or three blocks from the intersection of Dorwart and Manor Streets. (Id. at 135.) Mr. Murray positively identified appellant as the individual in the arrest photos taken on September 20,2006. (Id. at 137; Commonwealth exhibit no. 2.)

Lastly, through a stipulation with the Commonwealth, the defense offered the fact that on Officer Smith’s report of the “buy-bust,” in the area for the description of the suspect, he failed to check the boxes for whether the suspect had a mustache and a beard.

Appellant claims that the evidence which he presented proves that “it would be impossible for him to be the perpetrator of the cocaine delivery.” (See motion to vacate jury verdict as against the weight of the evidence at ¶11.) Initially, appellant disputes Officer Smith’s testimony that the suspect was wearing “long shorts,” when the photo of appellant showed him wearing pants that went down to his ankles. This is a disingenuous argument given the rather lengthy testimony and explanation regarding appellant’s clothing. When Officer Smith first described what appellant was wearing below the waist, he used the term “knickerbocker shorts, or they are pretty much long shorts.” (N.T.T. at 52.) By the term “knickerbocker,” Officer Smith meant, “capris for men” that went just to the ankle. (Id. at 64, 68.) He explained they were not traditional blue jeans because they were not tapered down the leg. (Id. at 68.) Rather, they were ill-fitting “flood water jeans” that only went to the ankle. (Id.) Appellant cannot honestly argue that this dispute about whether his pants went far below the knee or above the ankle makes it “impossible” for him to have been the suspect in this case.

Next, appellant claims the arrest report indicated that the seller did not have a beard or a mustache. There was no testimony by any police officer as to appellant’s facial hair or lack thereof. The arrest photo, introduced by the Commonwealth, did evidence a “slight mustache” and “little beard.” (N.T.T. at 148.) These photos were displayed to the jury and it was for them to decide whether the testifying officers’ descriptions of appellant were accurate and credible.

Additionally, appellant argues that the contradictory testimony of Officer Smith, who testified that the drug sale took place while the seller was outside the car, and Detective Breault, who testified that the seller was inside the car, indicates that they were referring to two different people. Officer Smith identified the suspect that approached his car and ultimately sold him crack cocaine as a black male “wearing a black fitted baseball cap” with an insignia on it, “black zip-up hoodie that was tied, and... a white t-shirt and knickerbocker shorts.” (N.T.T. at 48,52.) Detective Breault testified unequivocally that a black male “wearing a black hooded sweatshirt, white t-shirt underneath, and a black hat,” made contact with Officer Smith, entered the comer store, exited the comer store, and returned to Officer Smith’s vehicle. (Id. at 100-101,103,110-11.) Detective Breault noted that these undercover operations are a “dangerous business, so as soon as one of our officers comes into contact with somebody, [he] put[s] the description of this individual out on the radio right away.” (Id. at 102.) Thus, before any drug deal occurred, in or out of the car, Detective Breault broadcast a description of the suspect that was identical to the one given by Officer Smith to the surveillance team following the drug transaction. (Id. at 53-54.) These two trained officers were not referring to two different people as suggested by appellant.

Appellant further contends that the uncontradicted evidence at trial that, at the time of his arrest, he had no money, no drugs and no merchandise that had a value of $20, proves that he could not have entered the store with the $20 in buy money that was recovered from the store’s cash register. According to appellant, such would indicate that appellant received no compensation for the drug sale. Yet, defense counsel raised the specter of appellant’s “compensation” when he asked the prosecuting officer if appellant had been tested for the presence of cocaine in his system, and Officer Lowe responded in the negative. (N.T.T. at 121.) Appellant could very well have received his “compensation for the sale” in the form of cocaine, which he may have consumed prior to his arrest.

Lastly, appellant argues there was credible evidence that other persons were in the comer store that evening, and no evidence that these individuals who had allegedly been in the store could not have exited through a back door. Appellant did testify that when he entered the comer store there were four men, three black and one Puerto Rican, and one female lined up at the counter. (N.T.T. at 147-48.) He could not, however, remember what these individuals were wearing, their ages, or whether the men had facial hair. (Id. at 148-50.) Thus, there was no credible evidence that any of these alleged customers matched the general description of the individual identified by the undercover team and surveillance team: “Black male, approximately . . . five-eight, five-eleven in height, black ball cap, black zip-up hoodie, white t-shirt, blue knickerbocker shorts.” (Id. at 56, 101.)

After carefully reviewmg the entire record and considering the relevant facts and law, this court cannot find that the verdict in this case was so contrary to the weight of the evidence that it shocks its sense of justice. Although there were contradictions between the appellant’s and the Commonwealth’s evidence, as well as disputed contradictions within the exhibits, the weight to be given such contradictions is for the jury, not for the court. The jury was free to believe all, part, or none of the testimony presented at trial. The verdict as rendered by the jury clearly indicates that the jury resolved the inconsistencies in the testimony in the Commonwealth’s favor, and to appellant’s detriment. This trial court cannot and should not overturn a jury’s verdict merely because of a conflict in the testimony. Commonwealth v. Edwards, 588 Pa. 151, 168, 903 A.2d 1139, 1148 (2006). A review of the record in this case shows that the totality of the evidence presented in this case, as received, evaluated and judged by the jury, was clearly of adequate weight to support the verdicts of guilty on all counts. For these reasons, appellant’s appeal based upon a weight of the evidence claim should be denied.

III. CONCLUSION

For the reasons set forth above, appellant’s issues on appeal are meritless and his conviction should be affirmed.

Accordingly, I enter the following:

ORDER

And now, November 3,2008, the court hereby submits this opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      . 35 Pa.C.S. §780-113(A)(30).

      . In atypical “buy-bust” operation, the Selective Enforcement Unit selects target locations in the City of Lancaster that are identified as drug dealing areas. (N.T.T. at 97-98.) Undercover officers are sent into these areas to make purchases of controlled substances at the street level. (Id. at 97.) A surveillance team is responsible for coordinating the actions of the undercover officers, as well as coordinating the arrest with the several arrest teams that are involved in the “buy-bust” detail. The “buy money” is proceeds from other drug investigations by the Lancaster County Drug Task Force. (Id. at 98-99.) The surveillance officer is responsible for photocopying the money before it is used in a drug purchase. (Id. at 99.) The arresting officers then confirm the presence of the buy money by checking the serial number. (Id.)


author: SCHMEHL, J.L., P.J.,

text:
    Department of General Services v. Firetree Ltd.

      C.P. of Berks County,
    no. 08-6671.

      David L. Narkiewicz, for Commonwealth/appellee.

      Daniel F. Schranghamer, for defendant/appellant.
    October 17, 2008
   SCHMEHL, J.L., P.J.,

At issue is an appeal by defendant/appellant Firetree Ltd. from this court’s order of July 16, 2008.

I. BACKGROUND

On March 22, 2004, Firetree entered into a four-year written lease with the Department of General Services (DGS), so that Firetree could operate a drug and alcohol treatment and community correction center at the Wernersville State Hospital. On May 24 and 29,2007, DGS informed Firetree in writing that DGS was exercising its option not to renew the lease, which was proper notice under the terms of the lease and the law. On May 27, 2008, DGS filed a complaint and confession of judgment in ejectment against Firetree Ltd. for possession of buildings 18, 19, 27, 29 and 30. On June 14, 2008, Firetree was personally served with a “confession of judgment package.”

On July 10, 2008, Firetree filed a petition to strike and/or open judgment by confession, to stay proceedings pending resolution, and to strike impertinent and irrelevant allegations with counterclaim for damages. On July 14,2008, this court ordered DGS to show cause in five days regarding Firetree’s petition. On July 15, 2008, DGS filed its answer, as well as its motion to dismiss counterclaims for lack of jurisdiction and new matter.

This court heard a full day of arguments on July 15, 2008, and entered an order on July 16, 2008 which: denied defendant Firetree’s petition to strike and/or open judgment by confession; dismissed as moot Firetree’s petition to strike impertinent and irrelevant allegations; denied and/or transferred to the Pennsylvania Board of Claims Firetree’s counterclaim for damages; and, granted a 30-day period in response to Firetree’s request for stay of ejectment proceedings.

On July 18, 2008, Firetree filed with the Commonwealth Court a notice of appeal of the July 16, 2008 order. On July 21, 2008, this court entered an order directing Firetree to file a concise statement of matters complained of on appeal (Rule 1925(b) statement), which Firetree later timely filed. On August 6,2008, the Commonwealth Court of Pennsylvania denied Firetree’s application for expedited stay, and allowed DGS to proceed with the scheduled ejectment on August 31, 2008. The Commonwealth Court based its ruling on Firetree’s failure to meet the four requirements for a stay, or supersedeas.

On August 11, 2008, Firetree filed its Rule 1925(b) statement.

II. ANALYSIS

This case involves a commercial lease entered into by DGS and Firetree on March 22,2004. Firetree is a nonprofit corporation that operates drug and alcohol treatment and community correction centers in several locations in central and eastern Pennsylvania. Firetree entered into the lease with DGS so that Firetree could operate a drug and alcohol treatment and community correction center at the Wernersville State Hospital in Wemersville, Berks County, Pennsylvania.

In its Rule 1925(b) statement, Firetree based its appeal on three claims: the trial court denied Firetree’s petition prematurely; the confessed judgment was riddled with fatal defects and irregularities; and the confessed judgment should be opened because the condition precedent for confessing judgment has not been satisfied.

A. Whether the Trial Court Denied Firetree’s Petition Prematurely

In its Rule 1925(b) statement, Firetree argues that the July 15,2008 hearing was converted into a final hearing. This court finds neither this line of reasoning, nor the cases Firetree cited, to be persuasive. Firetree argued that because the court ruled on all of the motions Firetree had brought before the court in its July 10,2008 filings, this converted the July 15, 2008 hearing into a final ruling on the entire case. Firetree itself put the motions before this court and argued those motions at the July 15 hearing, and the court subsequently ruled on them. The court was trying to limit this prolonged action, and further delay tactics by the part of Firetree. It would have been pointless to retry the issues of the petition to strike and/ or open judgment by confession and to strike impertinent and irrelevant allegations separately, as these claims were argued before the court and resolved by evidence given at the July 15 hearing. There would have been no point in relitigating these issues separately from the stay proceedings, especially when the other matters were already before this court.

In the cases Firetree relied on in its 1925(b) statement, both fact patterns related to preliminary injunctions which prejudiced the defendant, the moving party. In the instant case, however, Firetree brought its own motions before the court and argued for them at the hearing. After a full day’s hearing, this court found that the terms of the contract between Firetree and DGS were clear, and that Firetree was not entitled to the relief sought. It was within the court’s purview to dismiss Firetree’s July 10, 2008 filings at the hearing on July 15.

B. Whether the Confessed Judgment Was Riddled With Fatal Defects and Irregularities

In its Rule 1925(b) statement, Firetree argues that there were numerous defects with the confessed judgment because DGS allegedly didn’t provide Firetree with: proper notice of Firetree’s rights as mandated by Pa.R.C.P. 2973.3(a); a copy of lease document attached to the complaint attested to by agreement of the parties or by the prothonotary as mandated by Berks County Local Rule 2951 (a); all of the allegations mandated by Pa.R.C.P. 2971(a)(1) in the complaint; and the order of judgment executed by the prothonotary.

Thus, Firetree has claimed it did not receive various necessary portions of the confessed judgment, and other necessary documents. After hearing a full day of testimony on July 15,2008, the court is satisfied that Firetree received these documents. The court believes DGS to have been compliant, and if not, any noncompliance was de minimis.

Firetree argued it did not receive the two pages of the confessed judgment. All other defendants, as well as the prothonotary, received those pages. In this “he said, she said” argument, where one party says it did not receive a document, it was this court’s judgment, based on the totality of the circumstances, that the full document was sent. All evidence points to the likelihood Firetree received these documents.

C. Whether the Confessed Judgment Should Be Opened Because the Condition Precedent for Confessing Judgment Has Not Been Satisfied

As explained above, the condition precedent has been satisfied, and as this court held in its July 16,2008 order, the confessed judgment should not be opened. The language of the lease clearly lays out the terms for terminating the lease. The lease between Firetree and DGS states that if tenant Firetree did not vacate the property within 90 days of notice of termination of the lease, there would be a confessed judgment against Firetree. This court previously found, and still believes, that Firetree’s arguments that these provisions should not be enforced are without merit.

Under the term of lease section of the lease, paragraph (D)(1), the lease was to be effective for a term of four years after the March 22,2004 date of execution. Under that same paragraph, the lessee was to be provided the “option of two five-year renewal periods provided that neither lessee nor lessor had terminated the lease agree- merit by giving written notice 90 days prior to the end of said term.” (emphasis added)

Under the confession of judgment section of the lease, paragraph (G)(1), “[ujpon proper termination of the lease agreement as herein provided, any attorney may immediately appear for the lessee in an amicable action of ejectment to be brought by lessor in any competent court, for the recovery of the demised premises and damages for the detention thereof, and therein confess judgment against the lessee, for which this lease agreement (or a true copy thereof) shall be a sufficient warrant...

Under the general rent section of the lease, paragraph (A)(1), “[t]he lessor agrees to provide the lessee with a dollar for dollar offset of the rental for any lessor-approved renovations made to the premises under paragraph (C)(2) of this agreement. It is hereby mutually agreed that that total amount of the offset is up to $1,600,000 at Wernersville for the present occupation. The rental offset will be prorated on a monthly basis over the term of the lease or renewal of the lease . . ..” (emphasis added)

In accordance with lease and the above sections, if Firetree did not vacate the premises after 90 days’ notice, Firetree would be subject to ejectment from the property. Firetree claims DGS’ treatment was improper because Firetree was not allowed to offset the total value of the improvements made over the term of its tenancy, and as a result, the lease had not yet expired. However, whether the improvements made should be offset against the rent during the term of the lease is a monetary question which can still be litigated by Firetree against DGS in the Pennsylvania Board of Claims. It should not affect the ejectment action, nor the timing of it. The Commonwealth is entitled to the use of their property. As this court held in its July 16, 2008 order, the terms of the lease could not be clearer: Firetree was given notice of termination, 90 days elapsed, and the confessed judgment provision then took effect. Further, under 71 P.S. §632(i), relating to grounds, buildings, and monuments in general in the Administrative Codes, Commonwealth leases are limited to a period of five years. Additionally, Firetree has been evicted for some time, additional litigation has commenced, and this court questions whether or not this matter is in fact moot.

Therefore, for all of the above reasons, this court respectfully recommends that the instant appeal be denied.


text:
    In re German

      C.P. of Lehigh County,
    no. 2007-1060.

      Richard Orloski, for appellant.

      Shannon Piergallini, for appellee.
    October 10, 2008
   REIBMAN,/.,

Alma Iiuber, sister of the incapacitated person, Geraldine Dreher German, has appealed the order entered in this matter on August 18, 2008, in which the court held Ms. German had the requisite mental capacity to revise her will and to change the named beneficiaries denoted in her assets. This memorandum opinion is filed in accordance with Pa.R.A.P. 1925(a) to set forth the reasons for the judgment from which appellant now seeks relief.

Ms. German, born on July 4, 1931, was declared an incapacitated person by decree dated October 5, 2007, and entered on October 9, 2007, upon finding by this court that she had a diminished ability to review and communicate information effectively. Accordingly, Robert Roth, Esquire, was appointed plenary guardian of her estate and the Guardianship Support Agency Inc., was appointed guardian of her person.

Several months later, and desirous of changing the beneficiary of her will, as well as the payable-on-death beneficiaries named on her assets, Ms. German, on February 29,2008, and through counsel, filed a petition for a review hearing pursuant to 20 Pa.C.S. §5512.2. A hearing on the petition was convened on July 24, 2008.

The standard by which requisite testamentary capacity is measured has been firmly established in this Commonwealth. As the Superior Court has recently explained,

“The test for determining the existence of testamentary capacity, a quality every person suijuris is presumed to possess, is ‘whether a man or woman has an intelligent knowledge regarding the natural objects of his bounty, the general composition of his estate, and what he desires done with it, even though his memory may have been impaired by age or disease.’ In re Brantlinger’s Estate, 418 Pa. 236, 247, 210 A.2d 246, 252 (1965).” In re Estate of Angle, 777 A.2d 114, 125 (Pa. Super. 2001).

In Angle, the court further recognized that a person may possess periods of lucidity while suffering from a prevailing condition that otherwise affects mental functioning. 777 A.2d at 123 (discussing and rejecting proposition that presence of Alzheimer’s disease will ipso facto render person incapable of executing or modifying a will).

In relation to the more specific situation in which a person has been declared incapacitated and thereafter seeks to change a will, the Superior Court has instructed that a more exacting standard will be applied to a proponent of that instrument before it will be admitted into probate:

“An adjudication of mental incompetency near the date of execution of a will does not necessarily prove lack of testamentary capacity. Where a person is adjudicated a mental incompetent and thereafter executes a will, the burden is shifted to the proponent of the will to show by clear and convincing evidence that at the time the will was made such person possessed testamentary capacity.” In re Estate of Vanoni, 798 A.2d 203, 207 (Pa. Super. 2002).

Here, of course, no one is yet seeking to admit a will to probate. Instead, it is only a determination of whether testamentary capacity exists at the present time. In light of that distinction, it may be that a contemporaneous determination by this court of requisite capacity upon a preponderance-of-the-evidence standard will, in the absence of other evidence at the time of some future probate proceeding, suffice to satisfy the clear-and-convincing standard applicable at that later date. However that interesting juridical inquiry might ultimately be resolved in some other setting, it may be dispensed with in this case because, through her demeanor and testimony adduced in support of her claim, Ms. German established by clear and convincing evidence that, as of the date of the hearing, she possessed the requisite testamentary capacity to modify her will and designate the beneficiaries named on her financial instruments.

First, in respect to her knowledge regarding the natural objects of her bounty and the general composition of her estate, she testified cogently and coherently about the extent of her assets, despite the fact that the guardian of her estate now manages her financial affairs. (See notes of testimony, July 24,2008 (N.T.), at 17-19, 31, 37-40.) Testimony by Attorney Gerald Barr, who had been commissioned as the scrivener of the revised will, further bolstered that conclusion. He explained that in the course of his meeting with Ms. German on July 8, 2008, she demonstrated an accurate knowledge of her assets and was clear in her desires about how to dispose of them. (See N.T. at 6-10.)

Secondly, she was quite clear and lucid about her wish to change the manner in which her estate should be bequeathed, explaining her desire to provide for the issue of her best friend, Rosie Dorward. (N.T. at 24, 29.) By contrast, she recounted a troubled history with appellant. (N.T. at 23-28.) That unfortunate history was corroborated by Barbara Gustafson, executive director of the Guardianship Support Agency Inc., who testified that Ms. German’s feelings about her sister have remained consistent since Ms. Gustafson’s appointment as guardian in October 2007. (N.T. at 40-41.) Appellant offered no credible evidence at hearing to rebut that testimony.

Finally, appellant presented no credible evidence of any undue influence to support the conclusion that, in spite of Ms. German’s testamentary capacity, she may have been subjected to any coercive influence so as to “overcome her free agency” and “prejudice her mind.” See Angle, supra, 111 A.2d at 123. To the contrary, she offered succinct, if at times saddening, reasons as a basis for her desire to implement changes to her will and financial assets. (See N.T. at 23-28.)

As such, and the court having based its determination upon direct observation of Ms. German and with full opportunity to assess the credibility of all the witnesses who testified, it was apparent by clear and convincing evidence that she possessed testamentary capacity and was thus entitled to the adjudication she sought in her request for a review hearing under the Guardianship Act at 20 Pa.C.S. §5512.1.

      . In other words, if a proponent in probate can adduce evidence that the relevant orphans’ court had determined contemporaneously that the testator possessed the requisite mental capacity at the time of execution of the will in spite of the adjudication of incapacity, the probate court would appear to be free to consider that as sufficient evidence to carry a clear-and-convincing standard in the subsequent probate proceeding, especially if no contrary evidence were proffered.


author: MILLER, J,

text:
    Henry v. Summit Lanes
    C.P. of Monroe County,
    no. 2524 Civil 2006.

      T. Axel Jones, for plaintiffs.

      Bernard T. Kwitowski, for defendants.
    September 29, 2008
   MILLER, J,

Plaintiffs, Patrick Henry and Sandra Henry, initiated this action against Summit Lanes alleging that on December 3,2005, plaintiff Husband slipped on a liquid substance and fell while he was bowling at defendant’s facility. We heard oral argument on defendant’s preliminary objections to plaintiffs’ amended complaint on September 8, 2008.

The Pennsylvania Rules of Civil Procedure provide, in pertinent part:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(2) failure of the pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

“(3) insufficient specificity in a pleading.” Pa.R.C.P. 1028(a)(2)(3).

The defendant asserts that the plaintiffs’ complaint fails to specify facts that support a claim for punitive damages; therefore, the “recklessness” language in sub-paragraph 10 of the plaintiffs’ amended complaint should be stricken.

Punitive damages may be awarded for conduct that is outrageous. Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984). Where there exists no indication of evil motive, then a plaintiff must establish that a defendant acted with reckless indifference to the rights of others. Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990). Punitive damages can be found where the evidence shows the defendant knows, or has reason to know, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act in conscious disregard of that risk. Id. at 181; Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1097 (1985). A claim for punitive damages must plead facts sufficient to summarize and support the claim, including facts tending to cast the alleged actions in a light justifying the label of outrageous conduct. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980).

After reviewing the complaint, we find that the plaintiffs have not alleged facts to support a claim for punitive damages based on recklessness. The complaint clearly does not aver facts that justify a claim of outrageous conduct. As such, we sustain the defendant’s first preliminary objection to strike the “recklessness” language in paragraph 10 of the plaintiffs’ complaint.

The defendant’s second preliminary objection asserts that subparagraph 10(j) of the plaintiffs’ complaint should be stricken for lack of specificity.

A complaint should formulate those facts essential to support a claim. Smith v. Wagner, 403 Pa. Super. 316, 321, 588 A.2d 1308, 1310 (1991). The standard in the court’s determination of preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). Under Pennsylvania Rules of Civil Procedure, when pleading a cause of action, the material facts upon which the action is based must be stated in a concise and summary form. Pa.R.C.P. 1019(a).

We find the language of subparagraph 10(j) stating, “otherwise conducting themselves in a negligent and careless manner,” is not clearly stated. We, therefore, grant the defendant’s preliminary objection to strike subparagraph 10(j) of the complaint.

The defendant further alleges that subparagraphs 10(a) and 10(b) should be stricken because neither demonstrates how the defendant failed to comply with a duty owed to the plaintiff.

To establish a negligence, a plaintiff must aver in his complaint: (1) a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) a failure on the person’s part to conform to the standards required; (3) a reasonably close causal connection between the breach of duty and the resulting injury; and (4) actual loss or damage resulting. Ferry v. Fisher, 709 A.2d 399, 402 (Pa. Super. 1998).

We do not find the language in subparagraph 10(a) which states, “failing to use due care and to employ reasonable skills in the performance of their duties and in their duty of care toward plaintiff” and of 10(b), “failing to exercise the judgment, care, and skill of reasonable persons under similar circumstances,” specific as to how the defendant violated the standard of care owed to the plaintiff.

Since the complaint does not aver any facts that suggest how the defendant violated a duty, as such, we grant defendant’s preliminary objection to subparagraphs 10(a)-(b) of the complaint.

Finally, defendant requests that the court find subparagraphs 10(c), 10(e), 10(f), 10(g) and 10(i) such that the meaning of the terms “condition,” “defect” and “defects” as used in these subparagraphs be limited to the facts set forth in paragraphs 7 through 9 of the plaintiffs’ amended complaint.

Paragraphs 7 through 9 of the complaint, in relevant part, state:

“(7) there existed on the bowling lane a quantity of liquid which constituted a defect or irregularity.

“(8) he fell to the ground as a result of slipping on the liquid in the bowling lane.

“(9) defendant had . . . knowledge or notice of the existence of the liquid . . . .” Plaintiffs’ amended complaint, paragraphs 7 through 9.

Subparagraphs 10(c), 10(e), 10(f), 10(g) and 10(i) reference to “unsafe or dangerous condition,” as follows:

“(c) permitting the bowling lane to remain in an unsafe, unsuitable, and dangerous condition, despite knowledge of the defect;

“(e) failing to warn plaintiff of the defects;

“(f) unreasonably exposing plaintiff to a dangerous condition;

“(g) permitting the bowling lane to remain in a dangerous, unsuitable and unsafe condition;

“(i) failing to correct, remedy, repair and/or to eliminate the dangerous condition and defects.” Plaintiffs’ amended complaint, paragraphs 10(c) through 10(i).

The plaintiff refers to the defect in question as “a quantity of liquid” in paragraph 7, as “slipping on the liquid” in paragraph 8, and as the “existence of the liquid” in paragraph 9 of the complaint. In paragraphs 7 through 9, plaintiff repeatedly asserts that the defect that existed was that of a liquid substance. As such, we grant defendant’s request to have the term “defects” in subparagraphs 10(c), 10(e), 10(f), 10(g) and 10(i) be limited to mean liquid substance.

Accordingly, we enter the following order.

ORDER

And now, September 29,2008, the preliminary objections of the defendant are sustained, and plaintiffs shall have 20 days from the date of this order to file an amended complaint which complies with the Pennsylvania Rules of Civil Procedure.