author: MINORA, J.,

text:
    DeSimone v. Kessler

      C.P. of Lackawanna County,
    No. 2012-CV-2113

      Patrick J. Lavelle, for plaintiffs.

      Robert A. Ceddhini, for defendants.
    June 11, 2015
   MINORA, J.,

I. INTRODUCTION

This case stems from a property dispute amongst neighbors. Samuel DeSimone and Merrilee Ann DeSimone (hereinafter “plaintiffs”) and George H. Kessler and Anne M. Kessler (hereinafter “defendants”) executed a right of way agreement (hereinafter “the agreement”) to which defendants granted to the plaintiffs, their heirs, successors and assigns the right and privilege to utilize the right of way up to plaintiffs’ current gravel driveway for access to plaintiffs’ home located on their property.

In their complaint filed April 5, 2012, plaintiffs allege that they acquired an easement to and from the right of way described in the agreement. See plaintiffs’ complaint, at 6. Plaintiffs argue that the defendants’ limitation of plaintiffs’ access to the right of way prevents plaintiffs from receiving fuel deliveries and easy access to their property over the gravel driveway, which has been the common practice since 2001. Id, at 5.

Plaintiffs’ complaint makes two (2) claims against the defendants, one for an action to quiet title, and the other for trespass. According to the plaintiffs, defendants are now attempting to impose a further limitation for the use of the right of way. Plaintiffs argue that the agreement should be given the full force and effect of the law, and plaintiffs should be allowed to exercise all rights to utilize the right of way to obtain access to and from their gravel driveway. Id, at 5-6. Lastly, plaintiffs argue that as a result of the activities by defendants, a portion of plaintiffs’ land has been damaged and they have been deprived of the use and enjoyment of their land. Id, at 8.

Defendants filed their answer to plaintiffs’ complaint on June 19, 2012 and asserted two (2) counterclaims for ejectment and trespass. In their counterclaims, defendants allege that plaintiffs’ construction of a sand mound for sewage treatment encroached upon the defendants’ land and deprived the defendants of use and enjoyment of their land. See answer of defendants and counterclaim, at 3-4. Defendants further allege that the plaintiffs sand mound is “constructed in a [manner] which causes an unnatural drainage of water from the plaintiffs’ land onto the defendants’ land resulting in the accumulation of water ... and additional loss of use of the defendants’ land preventing them from mowing and maintaining the land.” Id., at 4.

On December 5, 2013, the Honorable Judge Thomas Munley entered an order appointing Thomas Helbig, Esquire as special trial master to conduct a mediation conference on the matter. Following an unsuccessful mediation, the case proceeded to trial de novo.

The undersigned presided over a two-day de novo non-jury trial that commenced on January 27, 2015. The record was left open to allow the parties to submit proposed findings of fact and conclusions of law. All parties submitted a joint statement of undisputed facts on March 10, 2015. Plaintiffs submitted their requested findings of fact and conclusions of law on March 13,2015. Defendants submitted their version of the same on the same day. We now consider the matter ripe for disposition and the rendering of a non-jury opinion as per Pa.R.C.P. 1038.

II. FINDINGS OF FACT

The findings of fact in this case as determined by the court are supported by the credible, probative, and relevant evidence established during the trial and accepted as true by the court:

1. The plaintiffs are both adult and competent individuals who own the property located at 102 Hidden Valley Drive, Clarks Summit, Lackawanna County, Pennsylvania, 18411.

2. The defendants are both adult and competent individuals who own the property located at 107 Hidden Valley Drive, Clarks Summit, Lackawanna County, Pennsylvania, 18411.

3. On October 26, 1989, Anthony P. DeAngelo filed the Hidden Valley Subdivision Map in the Lackawanna County Recorder of Deeds Map Book 6A at Page 1085.

4. A deed dated November 9, 1993 from Richard and Laurie Hrobuchak to Dr. Ralph DeMario was recorded in Deed Book 1453, Page 563. See Joint Statement of Undisputed Facts, at Fact 1.

5. Plaintiffs acquired title to Lot #5 of Hidden Valley Estates Newton Township, PA by virtue of a Deed filed on page 785 of Record Book 344 on November 20, 2000. Id., at Fact 2.

6. Defendants acquired title to their property from Dr. Ralph DeMario on November 30, 2004, which is filed as Instrument No. 2004-43785. Id., at Fact 3.

7. Defendants’ property abuts the plaintiffs’ property and consists of approximately 3.595 acres. Id.

8. Plaintiffs’ November 20, 2000 deed included a provision that stated that the parcel was subject to a fifty (50) feet wide easement for access, ingress, egress, and regress for open space lands of Hidden Valley Estates and said easement being fifty (50) feet wide and lying adjacent to the sideline common to Lot #5 and Lot #6. See Joint Exhibit 1.

9. Plaintiffs built their home on Lot #5 in 2001 and moved in that year. N.T. 1/27/15, at 18.

10. Plaintiffs had a sand mound and drain field for sewage treatment constructed in 2001 under the supervision of Ozbert Patton, the former Sewage Enforcement Officer for Newton Township. N.T. 1/28/15, at 114.

11. Plaintiffs constructed two (2) driveways that provided access to their home. The first is a paved driveway that provides access directly from Hidden Valley Drive to the garage on the upper level of the home. The second is a gravel driveway that is reached by driving a short distance over the paved driveway in what is the 50’ x 170’ long right of way owned by defendants. N.T. 1/27/15, at 18-21.

12. Plaintiffs believed they owned the land over which the 50’ x 170’ wide easement was located. Id., at 21,24.

13. The 5 0 ’ x 170 ’ driveway was used without restriction by plaintiffs, their relatives, friends, neighbors, delivery people, workers and anybody else driving or walking to plaintiffs’ home. Id., at 21-23.

14. Plaintiffs learned that they did not own the 50’ x 170’ piece of land in 2004 when Dr. Ralph DeMario decided to sell his home to defendants. Id., at 25-27.

15. Plaintiffs decided to accommodate Dr. Ralph DeMario and convey the 50’ x 170’ piece of land to defendants by a quit claim deed subject to the fact plaintiffs could continue to use the same access to and from the gravel driveway as they utilized before. Id., at 27-32; See also Joint Statement of Undisputed Facts, at Fact 4.

16. At the request of the defendants, on December 7, 2004, the parties and Dr. Ralph DeMario executed the agreement. See Joint Statement of Undisputed Facts, at Fact 5.

17. James Tressler, Esquire prepared the agreement in representation of Dr. Ralph DeMario. At the time, plaintiffs were represented by David Bianco, Esquire. Defendants were unrepresented by an attorney. N.T. 1/27/15, at 27-28; N.T. 1/28/15, at 8.

18. In the agreement, Dr. Ralph DeMario executed a deed conveying all his rights, title and interest in 102 Hidden Valley Drive, Clarks Summit, Pennsylvania, 18411 to Defendants. See Joint Exhibit 5.

19. In the agreement, the defendants also granted to the plaintiffs, their heirs, successors and assigns, as owners of Lot #5 the right and privilege to utilize the right of way up to plaintiffs current gravel driveway for access to Lot #5. Id; See also Joint Statement of Undisputed Facts, at Fact 5.

20. The agreement stated that the width of the right of way was to be no greater than the current width of plaintiffs’ driveway serving Lot #5. See Joint Exhibit 5; See also Joint Statement of Undisputed Facts, at Fact 5.

21. The agreement further stated the following:

The right of way shall, at all times, be owned by [defendants], their heirs, successors and assigns and shall be used by [plaintiffs], their heirs, successors and assigns only for access to Lot #5 as depicted on Exhibit ‘A’ and as set forth above and no additional rights for use of the right of way will be given by [plaintiffs] to any third party without the prior written consent and approval of [defendants].

See Joint Exhibit 5.

22. Plaintiffs continued to use the gravel driveway just as they had for the initial four (4) years between 2004 and 2011. N.T. 1/27/15, at 32.

23. In September of 2011, defendant George Kessler excavated a ditch alongside the paved driveway in the right of way that reduced the size of the right of way. Id., at32, 111.

24. The ditch was filled with sharp, jagged rocks referred to as riprap. Id., at 111.

25. Defendant George Kessler buried a 16 ’ foot drainage pipe at the entrance of the paved driveway, which also limited plaintiffs’ access to the right of way. Id., at 43.

26. Plaintiff Sam DeSimone drove his vehicle into the ditch and the vehicle was damaged. Id., at 32-33.

27. On September 20, 2011, defendant George Kessler sent a letter to plaintiff Sam DeSimone that stated the letter would resolve and spell out exactly what the agreement allows. See Joint Statement of Undisputed Facts, at Fact 6; See also Joint Exhibit 6.

28. In the letter, defendant George Kessler further stated the following:

Paragraph 1 allows you to pass over my blacktop driveway, only as far as your driveway, and allows you to cross my land using the width of your current driveway. In other words the area you can use to cross my land is no greater than the width of your existing gravel driveway which is about 15 to 20 feet, You are not allowed to use, change, alter, make beams, cut trenches, park vehicles or equipment, place cones on, or use for snow removal, any part of my land that adjoins yours. You may only cross my land to access your driveway and only your driveway at the place provided and you do not have any other use of this land. You may not cross other parts of my land to access any other parts of your land.

See Joint Exhibit 6.

29. The letter also indicated the following regarding the agreement:

Paragraph 3 states that only [plaintiffs], their heirs, successors and assigns, (the people in your will and whomever you sell your house to), may use the ‘right of way’ and [plaintiffs] cannot give that right to third parties. Anyone other than the three DeSimones who live at 102 Hidden Valley Dr, must have the written permission of Kessler to use any part of the ‘right of way’ for any reason.
[Y]ou are warned that no one including your guests, delivery people, workers and anyone else you invite to your property may cross my property at any place or use the ‘right of way’, either walking, driving or by any other means. To be clear your guests and others you invite, must not access your gravel driveway or other parts of your property using the ‘right of way’ and must access your property through a way other than my property. In addition, because I am solely responsible for the maintenance and upkeep of the driveway at my expense, there will be no delivery trucks, gas, oil, wood delivery, equipment, furniture delivery or any other truck or delivery truck of any kind using the ‘right of way’ and passing over my blacktop driveway or any other part of my land.

Id.

30. Plaintiff Sam DeSimone never orally nor in writing agreed to defendant George Kessler’s September 20,2011 letter. N.T. 1/27/15, at 34.

31. Following the September 20,2011 letter, defendant George Kessler erected two (2) iron poles at the entrance to plaintiffs’ gravel driveway. Id., at 37-40.

32. The two (2) iron poles reduced the width of the access to plaintiffs’ gravel driveway and prevents delivery trucks from being able to drive into the gravel driveway from the right of way. Id., at 40-41,111.

3 3. Defendant George Kessler had surveyor pins erected over the boundary line that protrude approximately 1 ’ foot above the ground that create a hazardous condition. Id., at 37-38, 112.

34. Plaintiffs secured a field survey of their property performed by John M. Hennemuth, PLS that indicated that the mouth of the gravel driveway was reduced from 21 ’ feet in width to 15.54’ feet in width because of the two (2) iron poles placed by defendant George Kessler. Id., at 103-104,110-111; See also Joint Statement ofUndisputed Facts, at Fact 7.

35. Defendants secured two (2) survey maps of their property performed by Kevin M. Karsnak, PLS. See Joint Statement ofUndisputed Facts, at Fact 8-9.

36. Kevin M. Karsnak determined that the distance between the two (2) iron poles is 16.4’ feet and the width of plaintiffs’ gravel driveway is 12’ feet. N.T. 1/28/15, at 71, 75, 96; See also Defendants’ Exhibit 2.

37. Given his extensive background and experience, We find the conclusions of surveyor Hennemuth to be most credible, probative and persuasive.

III. CONCLUSIONS OF LAW

A. Action to Quiet Title and Easements

1. The purpose of an action to quiet title is to resolve a conflict over an interest in property. Pa. R.C.P. 1061.

2. “The courts have held that an easement is an interest in land for which an action to quiet title may be brought.” National Christian Conference Center v. Schuylkill Tp, 597 A.2d 248, 312 (Pa. Cmwlth. 1991), citing Versailles Township Authority v. City of McKeesport, 90 A.2d 581 (Pa. Super. 1952).

3. “An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” Restatement (Third) of Property (Servitudes) § 1.2 (2000).

4. An easement may be created 1) expressly; 2) by necessity; 3) by implication; or 4) by prescription.

5. Here, we have an express easement set forth in the agreement between the parties. See Joint Exhibit 5. With respect to the construction of express easements:

It is well-established that the same rules of construction that apply to contracts are applicable in the construction of easements.... In ascertaining the scope of an easement, the intention of the parties must be advanced. ‘Such intention of the parties is determined by a fair interpretation and construction of the grant and may be shown by the words employed construed with reference to the attending circumstances known to the parties at the time the grant was made.’

McNaughton Properties. LP v. Barr, 981 A.2d 222, 226-227 (Pa. Super. 2009), quoting Zettlemoyer v. Transcontinental Gas Pipeline Corp., 540 Pa. 337, 344, 657 A.2d 920, 924 (1995).

6. Therefore, when the words of an agreement are unambiguous and clear, the intent of the parties is to be ascertained from the language used in the agreement. Miller v. Poole, 45 A.3d 1143, 1146 (Pa. Super. 2012).

7. “A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Id.

8. “Ambiguous words are to be construed in favor of the grantee.” Lease v. Doll, 389 A.2d 1096, 1098 (Pa. Super. 1978).

9. Where the language of an easement agreement is ambiguous, the grantee shall have reasonable and necessary use of the right of way within the purpose of the easement and the intentions of the original parties to the grant. McNaughton, 981 A.2d at 227.

10. “[T]he scope of an express easement must be determined in strict conformity with the intentions of the original parties as set forth in the grant of the easement.” Id.; Zettlemoyer, 540 Pa. at 346, 657 A.2d at 925.

11. A grant of an easement being in general terms “must be construed to include any reasonable use to which the land may be devoted.” Lease, 389 A.2d at 1099.

12. “An easement may be used for all ordinary purposes if the manner in which it is used is reasonable.” Id.

B. EJECTMENT

13. “An action in ejectment can be a proper remedy for the recovery of land unlawfully encroached upon.” Murphy v. Frie, 32 Pa.D.&C.5th 299, 5 (C.P. Lackawanna 2013), quoting Big Bass Community Association v. Warren, 950 A.2d 1137, 1146 (Pa. Cmwlth. 2008).

14. With respect to actions in ejectment:

The plaintiffs’ burden in an action of ejectment at law is clear; they must establish the right to immediate exclusive possession. Recovery can be had only on the strength of their own title, not the weakness of defendant’s title. The crux of an ejectment action, therefore, rests with the plaintiffs’ ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of to which they are out of possession but for which they maintain paramount title.

Riverwatch Condominium Owners Ass’n v. Restoration Development Corp., 980 A.2d 674, 681-682 (Pa. Cmwlth. 2009), quoting Doman v. Brogan, 592 A.2d 104, 108 (Pa. Super. 1991).

15. “Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.” Murphy, 32 Pa.D.&C.5th 299 at 5.

16. “To sustain an action in ejectment, the evidence must be sufficient to identify the land in dispute and establish the plaintiff’s right to possession thereof, and the burden of identifying and locating the land clearly rests upon the plaintiff.” Id.

C. Trespass

17. “One who intentionally enters the property of another without the privilege to do so is chargeable with trespass.” Id.

18. “Pennsylvania has adopted the Restatement (Second) of Torts § 158 which imposes liability for trespass if the intruder enters or remains on the land of another without consent.” Id.

19. “To succeed with a trespass claim, there must be in the plaintiff either actual possession or the right to immediate possession flowing from the right of property; and she must have been deprived of it by the tortuous act of another.” Id.

IV. NATURE AND EXTENT OF EASEMENT

1. It is the conclusion of this court that the December 7, 2004 agreement creates the easement in which defendants granted to the plaintiffs the right and privilege to utilize the right of way up over defendants’ paved driveway to plaintiffs’ gravel driveway for access to plaintiffs’ home. In ascertaining the scope of the agreement, this court must determine the intention of the parties by interpreting the language with reference to the attending circumstances known to the parties at the time the agreement was made. McNaughton, 981 A.2d at 226-227.

2. Here, the language of the easement grants plaintiffs “the right and privilege to utilize the right of way up to their current gravel driveway.” See Joint Exhibit 5. The agreement further states that “[t]he right of way shall... be used by [plaintiffs], their heirs, successors and assigns only for access to Lot #5...and no additional rights for use of the right of way will be given by [plaintiffs] to any third party without the prior written consent and approval of [defendants].” Id.

3. While the section of the agreement addressing the purpose of the easement is unambiguous, and therefore the intent of the parties must be ascertained from the language, we find that the grant is ambiguous and is stated in general terms. Therefore the grant must include all ordinary purposes and reasonable manners which it was and is used. Miller, 45 A.3d at 1146; Lease, 389 A.2d at 1099.

4. When the parties entered into the agreement, defendant George Kessler testified that he was aware that Dr. Ralph DeMario allowed plaintiffs to have third parties access plaintiffs’ property over the paved driveway. N.T. 1/27/15, at 138-139. Plaintiff Sam DeSimone testified that the paved driveway was used, without restriction, by plaintiffs, their relatives, friends, neighbors, delivery people, workers and anybody else visiting plaintiffs’ home. Id., at 21-23. Because defendants were aware of plaintiffs’ prior use of the right of way prior to the execution of the written agreement coupled with the plaintiffs’ ordinary and reasonable use, we legally conclude that plaintiffs are entitled to exercise all prior rights and privileges in the utilization of the right of way without the limitations attempting to be unilaterally imposed by defendants. The typical parties permitted to use the right of way include, without limitation, plaintiffs, their relatives, friends, neighbors, invitees, delivery trucks (such as septic tank services, fuel, US Postal Service and UPS), workers (such as landscapers and contractors), and any third party visiting plaintiffs’ home or property at plaintiffs’ invitation and with plaintiffs’ consent.

5. Defendants argue that paragraph three (3) of the agreement, which states “no additional rights for use of the right of way will be given by [plaintiffs] to any third party without the prior written consent and approval of [defendants],” prohibits third parties from using the right of way. See Joint Exhibit 5. In order to read this clause consistent with the ambiguous granting language, we legally conclude that plaintiffs are not attempting to grant third parties any additional rights. Plaintiffs are only attempting to secure and use the right of way in the same manner exercising the same rights that they have peacefully enjoyed since 2001 when they constructed their home.

V. WIDTH OF EASEMENT

6. Since we have concluded that plaintiffs have acquired an easement to use the right of way on defendants’ property, as outlined above, We must now determine the width of the easement. Surveyor John M. Hennemuth, PLS determined that at the time the parties entered into the agreement, the entrance to the right of way was 21’ feet wide. N.T. 1/27/15, at 110; See also Plaintiffs’ Exhibit 2. Following defendant George Kessler’s construction of the ditch filled with riprap and the two (2) iron poles, John M. Hennemuth, PLS determined that the entrance to the right of way was reduced to 15.54’ feet. N.T. 1/27/15, at 110; See also Plaintiffs’ Exhibit 2. The agreement states that “the width of [the] right of way shall be no greater than the current width of [plaintiffs’] driveway serving Lot #5.” See Joint Exhibit 5 (emphasis added). Since the width of the right of way was 21 ’ feet at the time the parties entered into the agreement, We find and order the defendants to restore the width of the entrance to the right of way to the original width of 21’ feet. Therefore, defendants are ordered to remove the two (2) iron poles and riprap that caused the right of way to be reduced in size. Additionally, the defendants are also ordered to and must also extend the 16’ foot pipe located underground in order to restore access to the previous agreed upon width of 21 ’ feet.

7. Additionally, We find that defendant George Kessler’s September 20, 2011 letter to plaintiff Sam DeSimone has absolutely no bearing on this court. The letter has no affect on the agreement creating the right of way. Plaintiffs never agreed to, orally or in writing, the contents of the defendant’s unilateral letter. The September 20,2011 letter drafted by defendant George Kessler was simply a failed attempt to bully the plaintiffs and to unilaterally impose his terms and place his limitations on the controlling agreement.

8. The absurdity of Kessler’s self serving unilateral letter allegedly interpreting the right of way agreement can be best illustrated by a review of finding of fact 29, wherein Kessler in interpreting paragraph three (3) of the right of way agreement states “[a]nyone other than the three DeSimones who live at 102 Hidden Valley Drive must have the written permission to use any part of the ‘right of way’ for any reason.” (emphasis added). Taking Kessler’s unrealistically expansive view of the right of way agreement, if the DeSimones has another child, or chose to adopt one, there would now be four DeSimones or god forbid more with all additional family members needing Kessler’s written permission. Further, should someone become ill and be unfortunately located on the DeSimone’s property, the responding emergency medical team may also need Kessler’s written permission to make the most expedient response and rescue. The interpretation of defendant Kessler fails and its failure is due to its extremity and the examples illustrate the need to ignore Kessler’s letter.

VI. CROSSCLAIMS FOR EJECTMENT AND TRESPASS

9. We also legally conclude that defendants’ evidence is not sufficient to establish their right to ownership or possession of the land upon which the plaintiffs’ septic sand mound and septic drain field is located, and therefore defendants ejectment claim fails. The survey map of John M. Hennemuth, PLS shows that the sand mound and drain field are entirely within the boundaries of plaintiffs’ property. See Plaintiffs’ Exhibit 1.

10. In support of the trespass claim, defendants argue that the plaintiffs’ sand mound causes an unnatural drainage of water from plaintiffs’ property onto the defendants’ property. See defendants’ proposed findings of fact, at fact 45. Defendants argue that this prevents them from properly maintaining their property. We legally conclude that the credible survey evidence established that plaintiffs’ sand mound and drainage field are not located on defendants’ property. Moreover, we find that defendants had open and obvious knowledge of this pre-existing sand mound when they purchased the realty from Dr. Ralph DeMario. After all this is not a concealed and subterranean septic tank, but an obvious three dimensional sand mound visible at a distance with the untrained eye. Finally, even if defendants were correct, which we believe they are not, then defendants have not presented sufficient evidence of any real harm or compensable damages that they suffered due to the alleged encroachment. As a result, a verdict will be entered in favor of plaintiffs with respect to defendants’ ejectment and trespass counterclaims.

NON-JURY VERDICT PER PA.R.C.P. 1038

And now, this 10th day of June 2015, upon consideration of the competent, credible and relevant evidence introduced during the non-jury proceedings on January 27, 2015, and January 28, 2015, and the parties’ later supplemental submissions, after reproduction of the record and based upon the findings of fact and conclusions of law set forth in Sections II and III above, the following non-jury verdict is rendered pursuant to Pa. R.C.P. 1038:

1 .Anon-jury verdict is entered in favor of plaintiffs and against defendants regarding plaintiffs’ action to quiet title claim set forth in Count I of the complaint with all beneficial interpretations related thereto as contained within this non-jury verdict.
2. A non-jury verdict is entered in favor of plaintiffs and against defendants as to defendants’ ejectment claim as set forth in Count I of defendants’ answer and counterclaims, with all defendants’ obligations to correct driveway width and remove the offending stakes.
3. A non-jury verdict is entered in favor of plaintiffs and against defendants as to defendants’ trespass claim as set forth in Count II of defendants’ answer and counterclaims.
4. Plaintiffs have acquired an easement to use the right of way on defendants’ property in accordance with the terms set forth in the December 7, 2011 agreement as interpreted by this court in these findings of fact and conclusions of law and this non-jury decision per Pa.R.C.P. 1038.
5. Plaintiffs are entitled to exercise all rights and privileges to utilize the right of way to obtain access to and from their gravel driveway as found in these findings of fact and conclusions of law and this non-jury decision as per Pa.R.C.P. 1038.
6. Defendants are prohibited from restricting plaintiffs, their family members, neighbors, delivery people, workers, or anyone else who may seek to obtain access to plaintiffs’ property via the right of way to enter the gravel driveway per the authority granted by this decision and a violation of this order shall subject defendants to the court’s contempt powers.
7. Defendants are ordered to remove the two (2) iron poles and riprap placed on both sides of the plaintiffs’ gravel driveway and to extend the 16’ foot long pipe so that access to the right-of-way is restored from 15.54’ feet to its original width of 21’ feet no later than thirty (30) days after the date of this order.
8. Defendants are ordered to remove the surveyor pins placed over the boundary line on plaintiffs’ property, which create a hazardous condition because they are protruding approximately (1’) foot above the ground with all deliberate speed and no later than thirty (30) days after the date of this order. If defendants fail to do so in a timely fashion, plaintiffs are authorized to remove the surveyor pins.
9. Defendants are to comply with the terms of this order immediately or suffer contempt. Defendants are to take and complete all corrective repairs within thirty (30) days of the date of this order.

      . While Kevin M. Karsnak determined the entrance of the right of way to be a greater' width of 16.4’ feet, We conclude that John M. Hennemuth’s testimony and survey map are more credible because of his educational background and superior experience in surveying.


source: Caselaw Access Project

author: MCINERNEY, J.,

license: Public Domain

text:
    Nationwide Mutual Insurance Co. v. Rainone

      William T. Salzer, for plaintiff.

      Brian D. Kent, Jefrey F. Laffey, Christopher P. Spina, Gavin P. Lentz, Albert M. Belmont, III, Speros J. Kokonos and Joseph W. Gibley, for defendants.
    April 24, 2015
   MCINERNEY, J.,

The motion for summary judgment requires this court to determine whether plaintiff, a business insurer, owes any duty to defend its insureds in an underlying action. For the reasons below, the court finds that plaintiff owes no duty to defend its insureds in the underlying action.

BACKGROUND

Defendant Jacqueline Rainone (“Rainone”), was an employee at a gasoline station (the “Sunoco Station”), located in East Stroudsburg, Pennsylvania. At all times relevant to this action, an individual named “Quinones,” was the manager of the Sunoco Station; an entity named “Sunoco, Inc.” owned the business thereon.

On the night of January 21, 2012, near the end of her work shift, Rainone asked Quinones permission to leave. Apparently in response to this request, Quinones “hugged” Rainone and “wouldn’t let her go,” and when Rainone asked to be released and allowed to leave, Quinones not only refused to comply, but continued to restrain her until an incoming telephone call compelled him to momentarily relinquish his grasp. Upon release, Rainone began to head toward the time-clocking machine with the intent to clock-out and leave; however, Quinones seized her again, pulled her to the floor, reached inside her garments, and touched her inappropriately. Eventually, Rainone was able to escape from Quinone’s control: she immediately ran out of the Sunoco Station and called the police. At the time of these events, the Sunoco Station was insured under a business policy issued by herein plaintiff, Nationwide Mutual Insurance Company (“Nationwide Insurance”). The “Business Policy” issued by Nationwide Insurance contained the following “Definitions”:

V. DEFINITIONS
3. “Bodily Injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
4. “Coverage Territory” means: a. The United States....
5. “Employee” includes a “leased worker”. “Employee” does not include a “temporary worker”. ***
13. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

The business policy also contained a liability coverage form, No. PB 00 06 (01-01), which provided coverage for bodily damage and property damage. This portion of the policy (the “liability coverage section”), specifically stated:

I. COVERAGES
A. COVERAGE A-BODILY INJURY AND PROPERTY
DAMAGE LIABILITY
1. INSURING AGREEMENT
a. We will pay those sums up to the applicable limit of insurance that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages under this policy.
However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injuiy” or “property damage” to which this insurance does not apply.
b. This insurance applies to “bodily injury” and “property damage” only if:
1. The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territoiy”; and
2. The “bodily injury or “property damage” occurs during the policy period....

The premier business owners liability coverage form also contained an “exclusions section” stating that the insurance policy, including any duty to defend any suits thereunder, did not apply in a number of specifically listed circumstances. The exclusions section stated in pertinent part as follows:

2. Exclusions
This Insurance, including any duty we have to defend “suits”, does not apply to:
e. Employer’s liability
“Bodily injury” to:
1) An “employee” of the insured arising out of and in the course of:
a) Employment by the insured; or
b) Performing duties related to the conduct of the insured’s business....

The exclusions section contained additional exclusions from coverage under an “abuse and molestation” clause and an “employment practices” clause. These clauses specifically stated as follows:

This insurance, including any duty we have to defend “suits”, does not apply to....
r. Abuse or molestation
“Bodily injury” or “property damage” arising out of
2) The negligent:
a) Employment;
b) Investigation;
c) Supervision;
d) Reporting to the proper authorities, or failure to so report; or
e) Retention;
Of a person for whom any insured is or ever was legally responsible and whose conduct would be excluded by paragraph 1) above.
t. Employment practices
Bodily injury to:
1) A person arising out of any:
c) Employment-related practices, policies, acts or omissions, such as coercion, demotion evaluation, reassignment, discipline, defamation, harassment, humiliation or discrimination directed at that person....

On January 14, 2014, Rainone commenced the underlying action against Sunoco, Inc. and other entities and individuals associated with, or succeeding to, the interests of Sunoco, Inc. (the “Sunoco defendants”). Among the entities and individuals sued by Rainone are Sri Maruti Enterprises, LLC (“Maruti Enterprises”), Tarisa Realty, LLC (“Tarisa Realty”), and Jay Patel (“Patel”), collectively referred to as the “Insureds” under the policy issued by Nationwide Insurance. According to the “underlying complaint,” Rainone suffered a number of physical and psychological injuries, as well as financial damages, caused directly and proximately by the actions of Quinones. The injuries and damages suffered by Rainone include mental trauma, bruising, emotional distress, post-traumatic stress, depression, fear, miscarriage and loss of earning capacity. In the underlying complaint, Rainone asserts against the Sunoco defendants the claims of negligence, negligent infliction of emotional distress and negligent failure to rescue; in addition, Rainone asserts the claims of assault, battery and intentional infliction of emotional distress against Quinones. After the underlying action was commenced, Nationwide Insurance undertook to defend its Insureds, but declined to provide any coverage to Quinones.

On May 20, 2014, Nationwide Insurance commenced the instant “declaratory judgment action.” The motion for summary judgment of Nationwide Insurance seeks an order ruling that Nationwide Insurance is under no duty to defend the Insureds in the underlying action.

DISCUSSION

Summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.

An action for declaratory judgment is available to obtain a declaration of the existing legal rights, duties, or status of the parties where the declaration will aid in the determination of a genuine, justiciable controversy.... A declaratory judgment action is particularly appropriate in construing contracts of insurance in order to determine whether an insurer is obligated to defend and/or indemnify one claiming under the policy.... The proper construction of an insurance policy is an issue which may be resolved as a matter of law in a declaratory judgment action.

A court’s first step in a declaratory judgment action concerning insurance coverage is to determine the scope of the policy’s coverage. After determining the scope of coverage, the court must examine the complaint in the underlying action to ascertain if it triggers coverage. If the complaint against the insured avers facts that would support a recovery covered by the policy, then coverage is triggered and the insurer has a duty to defend until such time that the claim is confined to a recovery that the policy does not cover.

I. The bodily injury suffered by Rainone is removed from coverage under the “employer’s liability” clause of the business policy.

In the motion for summary judgment, Nationwide Insurance asserts that Rainone was employed by the Insureds at the Sunoco Station and was performing duties on their behalf at the time she was allegedly assaulted by Quinones. Nationwide Insurance argues that any bodily injury suffered by Rainone is excluded from coverage pursuant to the “employer’s liability” exclusion contained in the business policy. Thus, Nationwide Insurance concludes that it is exempted from defending the Insureds in the underlying action by operation of the aforementioned exclusion.

In the response in opposition, defendants Rainone and the Insureds deny that Rainone was performing any duties related to the business of the Sunoco Station at the time she was assaulted. Rainone and the Insureds assert that at the time of the assault, Rainone had “completed her shift and was attempting to vacate the premises.” Thus, Rainone and the Insureds argue that determining whether Rainone was acting within the scope of her employment at the time of the assault is a matter of fact for the jury, and may not be decided at summary judgment. The court is not persuaded by this argument.

In Pennsylvania, an injuiy suffered by an employee is deemed to occur in the course of employment, provided that the injury occurs within the proximate time of work. In this case, the underlying complaint asserts that at approximately 9:50 P.M. of Saturday, January 21, 2012, Rainone was assaulted by Quinones while she was on the clock. Although Rainone’s shift was nearing its end, she was on the clock at the time of the alleged assault, and as an employee of the Insureds, she continued to be engaged in the performance of the conduct of their business. The business policy specifically states that the insurance “does not apply to” any “bodily injury” suffered by “an employee” while “performing duties related to the conduct of the insured’s business,” or arising out of employment by the insured. Since Rainone’s bodily injury is excluded from coverage, Nationwide Insurance is under no duty to defend the Insureds in the underlying action.

II. The bodily injury suffered by Rainone is removed from coverage under the “abuse and molestation” clause in the business policy.

The underlying complaint avers that Rainones was sexually assaulted and molested by Quinones. Indeed, the underlying complaint specifically avers that Quinones reached inside Rainone’s shirt, touched her breast and tried to kiss her, then “pulled [her] to the floor, putting his hands insider [sic] her pants and underclothes to touch her buttocks and genitals.” Nationwide Insurance argues that the averments in Rainone’s underlying complaint remove from coverage any bodily injury or property damage sustained by Rainone, pursuant to the “abuse and molestation” exclusions contained in the policy. Therefore, Nationwide Insurance concludes that it has no duty to defend the Insureds in the underlying action.

Opposing the motion, Rainone and the Insureds assert that the issue of molestation may not be resolved at summary judgment because it involves a question of fact for the jury. However, a reading of the above-cited abuse and molestation clauses clearly shows that the insurance does not apply to “bodily injury” or “property damage” arising out of the “actual or threatened abuse or molestation by anyone of any person while in the care, custody or control of any insured.” In addition, any personal and advertising injury arising out of facts grounded in abuse and molestation are also excluded from coverage.

In this case, Rainone suffered bodily injury or property damage arising out of the acts of sexual molestation allegedly inflicted upon her by Quinones. At the time she suffered such bodily injury or property damage, Rainone was clearly in the care, custody and control of her employer, the Sunoco Station, and of the Insureds who owned the business. The policy provisions in the business policy, when read in conjunction with the averments in the underlying complaint, convince the court that no genuine issue of material fact exists, any injury allegedly suffered by Rainone is excluded from coverage, and Nationwide Insurance has no duty to defend the Insureds in the underlying action.

III. The “Employment Practices” exclusion removes from coverage any bodily injury allegedly suffered by

Rainone.

Nationwide Insurance asserts that any bodily injury allegedly suffered by Rainone is removed from coverage pursuant to the “employment practices” exclusion contained in the business policy. According to Nationwide Insurance, the underlying complaint avers that the Insureds are liable to Rainone for negligently hiring Quinones, and for failing to enforce policies and procedures designed to prevent the type of assault allegedly perpetrated by Quinones. An examination of the underlying complaint reveals inter alia the following averments: first, the Insureds failed to properly supervise Quinones and to enforce measures for preventing the type of assault suffered by Rainone; second, the Insureds failed to make the premises safe for Rainone and did not warn her about the risks of being near Quinones; and third, the Insureds negligently hired Quinones when they knew or should have known of his alleged predatory proclivities. A simultaneous reading of the pertinent exclusionary language in the policy convinces this court that any bodily injuiy suffered by Rainone, which arose out of the “employment-related practices, policies ... acts or omissions” of the Insureds, is excluded from coverage. For these reasons, Nationwide Insurance is under no duty to defend the Insureds in the underlying action.

The motion for summary judgment of plaintiff Nationwide Insurance is granted.

ORDER

And now, this 24th day of April, 2015, upon consideration of the motion for summary judgment of plaintiff, Nationwide Mutual Insurance Company, the responses in opposition of defendants, Jacqueline Rainone, Sri Maruti Enterprises, LLC, Tarisa Realty and Jay Patel, and the respective memoranda of law, it is ordered that the motion for summary judgment is granted. Plaintiff Nationwide Mutual Insurance Company has no duty to defend in the action captioned Jacqueline Rainone v. Sunoco. Inc. et al., Case No. 1401-01235, filed in the Court of Common Pleas, Philadelphia County.

      . Unless noted otherwise, the facts in this memorandum opinion are gleaned from the allegations asserted in an action captioned Jacqueline Rainone v. Sunoco, Inc. et al. Case No. 1401-01235 (the “underlying action”), Philadelphia County Court of Common Pleas, case no. 1401-01235, Complaint, ¶¶ 29-37.

        .Id. at¶30.

      . Id. at ¶¶ 30-31.

      . Id. at ¶¶ 32-35.

      . Id. at ¶¶ 36.

      . Premier Business Owners Policy ACP BPRM 5404912929, Exhibit B to plaintiff’s motion for summary judgment, V., Definitions.

      . Id. Premier Business Owners Liability Coverage Form, PB 00 06 (01-01).

      . Id. at I.A.2.e.

      . Id. at I.A.2.r.

      . Id. atI.A.2.t.l(c).

      . Jacqueline Rainone v. Sunoco, Inc. et al., Case No. 1401-01235.

      . The period for discovery in this case ends on June 1, 2015.

      . Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 329; 908 A.2d 888, 895-96 (2006).

      . Warner v. Cont’l/CNA Ins. Companies, 455 Pa. Super. 295, 301; 688 A.2d 177, 180(1996).

      . Gen. Ace. Ins. Co. of Am. v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997).

      . Plaintiff’s motion for summary judgment, ¶¶ 7-11.

      . Response in opposition of Rainone and the Insureds, ¶ 7 (incorporating ¶ 3 therein).

      . Id. at ¶¶ 11,3,7.

      . Epler v. N. Am. Rockwell Corp., 482 Pa. 391, 397, 393 A.2d 1163, 1165 (Pa. 1978).

      . Underlying complaint, ¶¶ 29-32.

      . Premier Business Owners Liability Coverage Form, PB 00 06 (01-01), at I.A.2.e.l); I.A.2.e.2). In Pennsylvania, the term “bodily injury” includes emotional, psychic or mental injury. Glikman v. Progressive Cas. Ins. Co., 2007 Pa. Super 41, ¶ 7; 917 A.2d 872, 873 (2007) (finding that a psychic or mental disease known as post traumatic stress disorder is included within the definition of “bodily injury”).

      . Underlying complaint, ¶¶ 34-35.

      . The verb “to abuse” is defined as “[t]o injure (a person) physically or mentally.” Black’s Law DICTIONARY 110 (7th ed. 1999). Molestation is defined as “[t]he act of making unwanted and indecent advances to or on someone, esp. for sexual gratification.” Id. at 1021.

      . Motion for summary judgment of nationwide insurance, ¶¶ 14-lb.

      . Response in opposition of Rainone and the Insureds, ¶¶ 14-15, (incorporating ¶ 3 therein).

      . Premier Business Owners Liability Coverage Form, PB 00 06 (01-01) at I.A.2.r.l). In addition, bodily injury is removed from coverage also under Coverage I.A.2.r.2), arising out of the Insureds’ negligent employment, investigation, supervision, failure to report, and retention of a person for whom any insured is... legally responsible....”

      . Premier Business Owners Liability Coverage Form, PB 00 06 (01 -01); Coverage I.B.2.a. 12) (Personal and Advertising Injury Liability).

      . The same conclusion applies to the business policy’s exclusions under “personal and advertising injury liability” provision of the Business policy, I.B.2.a.12).

      . Underlying complaint, ¶ 42.


author: ZULICK, J.,

text:
    Purpura v. Barton Heights Veterinary Hospital

      C.P. of Monroe County,
    No. 9358 CV 2014

      Tullio DeLuca, for plaintiff.

      Michael P. Shay and Sharon F. Harvey, for defendants.
    April 30, 2015
   ZULICK, J.,

This matter comes before the court on defendants’ preliminary objections to plaintiffs’ complaint. Plaintiffs Peter and Kathleen Purpura commenced this tort action by complaint filed on November 12, 2014. The Purpuras allege that defendants Abby Worton, DVM and Sean Ott, DYM, both employed by defendant Barton Heights Veterinary Hospital (Barton Heights), incorrectly diagnosed the condition of plaintiffs’ pet dog and subjected the dog to surgeries that caused it further harm. Dr. Worton filed preliminary objections on November 26, 2014 arguing that plaintiffs’ demand for punitive damages failed to conform to law or rule of court, or was legally insufficient; that the statute of limitations precludes plaintiffs’ claim against Worton; and that plaintiffs’ complaint does not contain a notice to plead. Plaintiffs filed a reply on December 10, 2014. Dr. Worton withdrew her preliminary objections by praecipe filed on December 19, 2014.

On January 12, 2015, all defendants filed preliminary objections. The January 12 preliminary objections argue that plaintiffs’ request for punitive damages was improper and legally insufficient, failing to conform to law, and scandalous or impertinent matter; that plaintiffs’ request for damages for the physical pain of their dog failed to conform to law and was scandalous or impertinent matter; that plaintiffs’ request for veterinary expenses failed to conform to law and was scandalous or impertinent matter; and that the complaint was insufficiently specific as it did not itemize and describe the measure of damages.

Dr. Worton again filed preliminary objections on January 14, 2015, arguing that plaintiffs’ request for punitive damages was legally insufficient or scandalous or impertinent matter; that the statute of limitations bars plaintiffs’ claim as to Worton; and that plaintiffs’ claim for damages relating to the physical pain of the dog are legally insufficient. All parties filed briefs relating to both sets of preliminary objections, and oral arguments were held in this court on April 6, 2015. Plaintiffs did not object to Dr. Worton’s “double” preliminary objections by different defense counsel; or that she withdrew her initial objections and re-filed them. Her objections filed by defense counsel representing her separately from the other defendants will be considered here.

The facts as alleged in the complaint are as follows. On October 25, 2012, plaintiffs took their dog to Barton Heights Veterinary Hospital. Complaint ¶ 8. Dr. Worton recommended removal of a mass in the dog’s rectum and suggested possible diagnoses of lipoma, adenoma/ adenocarcinoma, epithelioma, and follicular neoplasia. Id. On November 7, 2012, plaintiffs returned to Barton Heights stating that the lump near the dog’s rectum had increased in size. Id. at ¶ 9. Dr. Ott examined the dog and noted a tentative diagnosis of “peri anal gland adenoma” and recommended immediate surgical removal. Id. The dog underwent surgery on November 13, 2012. Dr. Ott performed the surgery, “noting that an opened neuter with scrotal ablation was performed, as well as removal of “a 4x3 cm very vascular, irregular, multilobulate mass.” Id. at ¶ 10. Dr. Ott noted further that “one side of the mass was attached to the right side of the colon and/or muscle wall supporting colon, with no perineal (sic) hernia being found.” Id.

The same day, plaintiffs returned to Barton Heights stating that the dog was unable to urinate. Complaint at ¶ 11. The dog was examined by Jeremy Wentz, DVM, who diagnosed a urethral obstruction due to the earlier surgery. Id. He further recommended that the dog be placed under anesthesia to try to pass a urinary catheter, and, if that was not successful, to explore the surgical site through a second surgery. Dr. Ott assisted Dr. Wentz; however, they were not able to pass the catheter, and they proceeded to surgery on November 14, 2012. Wentz and Ott performed a wound exploration/bladder marsupialization on the dog; at the time of surgery, it was discovered that a transection of the mid-urethra had resulted from the previous surgery performed by Dr. Ott. Id. 13. The November 15, 2012 histopathology report states that the dog’s prostate gland was also removed during the original surgery. Id. at ¶ 15. As a result of the actions of Dr. Ott, including the unnecessary removal of the dog’s prostate and transection of the urethra, a tube was required to be placed for purposes of removing urine. Id. at ¶16. The tube will have to be replaced every six months. Id. at ¶ 17.

DISCUSSION

Punitive Damages

All defendants first object to plaintiffs’ request for punitive damages. The standard for demurrer is “whether, on the facts averred, the law says with certainty that no recovery is possible.” Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 613 A.2d 1235, 1238 (Pa. Super. 1992). “Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.” Id.

“Punitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or reckless indifference to the rights of others.... As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct.” Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005). Furthermore, “this court has stressed that, when assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless, or malicious.” Id.

A review of plaintiffs’ complaint reveals no suggestion that any of defendants’ actions were intentional, reckless, or malicious. Counts I and II are explicitly entitled “negligence.” Count III against Barton Heights states that Barton Heights was negligent in supervising and training its veterinarians. The use of the words “tortious misconduct” within the complaint does not indicate an intentional or reckless act that could justify a request for punitive damages. This preliminary objection will be sustained.

Statute of Limitations

Dr. Worton next argues that the claim against her is barred by the statute of limitations. She diagnosed the dog on October 25, 2012, and did not treat the dog again. The complaint was filed on November 12, 2014. The statute of limitations for a negligence action is two years. 42 Pa.C.S. Section 5524. Plaintiffs correctly point out that the statute of limitations is an affirmative defense that must be pleaded as new matter, pursuant to Pa.R.C.P. 1030. See also Farinacci v. Beaver County Indus. Development Authority, 511 A.2d 757, 758-59 (Pa. 1986).

However, “[wjhere a party erroneously asserts substantive defenses in preliminary objections rather than to [sic] raise these defenses by answer or in new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections.” Preiser v. Rosenzweig, 418 Pa. Super. 341, 614 A.2d 303, 305 (1992); Borough of Nanty Glo v. Fatula, 826 A.2d 58, (Pa.Cmwlth.2003). Plaintiffs did not file preliminary objections, so Dr. Worton’s statute of limitations defense may be considered at this juncture.

Plaintiffs respond to her statute of limitations defense by citing the discovery rule. The discovery rule applies to toll the limitations period if the jury finds “the plaintiff’s suit was filed within two years of the date from which the plaintiff could have first reasonably discovered (his or her damages) and that it [sic] was caused by the conduct of another person.” Wilson v. El-Daief 964 A.2d 354, 364 (Pa.2009). Factual issues pertaining to the plaintiff’s notice and diligence are for the jury. See Fine v. Checcio, 870 A.2d 850 (Pa.2005), Wilson v. El-Daief, 600 Pa. 161, 181, 964 A.2d 354, 365-366 (Pa.2009).

Here, plaintiffs contend that they were misled by Dr. Worton’s initial advice, and it was not until after the second surgery was performed, on November 14, 2012, that the Purpuras were aware that there was a misdiagnosis and professional negligence.

This objection will be denied due to factual questions of when plaintiffs reasonably should have discovered their cause of action.

Objection to Claim for Dog’s Severe Physical Pain

Defendants object to Paragraph 36 of the complaint, which alleges:

36. As a further result of the defendant’s negligent and tortious misconduct, plaintiff’s pet dog, Floyd, has been obliged to endure severe physical pain and will continue to suffer same for an indefinite time in the future, to plaintiff’s great detriment and loss.

Complaint, ¶ 36.

Defendants argue that Pennsylvania does not recognize a cause of action for pain and suffering of an animal. Plaintiffs respond that this allegation is present to support plaintiffs’ claim for punitive damages.

The “Dog Law” 3 Pa.C.S. § 459-102 defines a dog as “(t) he genus and species known as Canis familiaris”. 3 Pa.C.S. § 459-601 (a) states inter alia, “All dogs are hereby declared to be personal property...” Plaintiffs have not cited any cases authorizing a cause of action for pain and suffering of an animal. The superior court has bluntly held that “(u)nder no circumstances, under the law of Pennsylvania, may there be recovery for loss of companionship due to the death of an animal.” Daughen v. Fox, 539 A.2d 858, 865 (Pa. Super. 1988). The Daughen case dealt with a dog that allegedly died due to veterinarian malpractice.

Paragraph 36 of the complaint will be stricken as impertinent matter, pursuant to P.R.C.P. 1028 (a)(2). The claim for punitive damages is being dismissed; Pennsylvania does not recognize a claim for pain and suffering of an animal, nor a claim for loss of companionship of an animal.

Measure of Compensatory Damages

Finally, the defendants argue that the plaintiffs’ complaint does not conform to law as plaintiffs seek recompense for the dog’s pain and suffering and their own emotional distress, as well as damages based on veterinary expenses. Defendants also contend that the plaintiffs failed to itemize their damages. As has been discussed, plaintiffs’ allegations supporting a claim for punitive damages for veterinarians’ negligence, their dog’s pain and suffering and loss of companionship of their dog will be stricken.

“Under Pennsylvania law, a dog is personal property.” Daughen v. Fox, 539 A.2d 858, 864 (Pa. Super. 1988). The fundamental purpose of damages for an injury to or destruction of property by tortious conduct of another is to compensate the injured party for actual loss suffered. Commonwealth of Pennsylvania, Department of Transportation v. Crea Estate, 483 A.2d 996 (Pa. Cmwlth.1977). Where the property has been destroyed, the measure of damages would be the value of the property prior to its destruction. See Miller v. C.P. Centers, Inc., 483 A.2d 912 (Pa. Super. 1984).

Here, the Purpura’s dog was not killed by the alleged malpractice, but required a second surgery, and “it will be necessary to have the tube which has been inserted in the pet dog in order to remove urine from his system, replaced approximately every 6 months.” Complaint, ¶ 17.

There are several different methods to calculate damages arising from personal property which has not been destroyed. In one method, the plaintiffs must prove what the property was worth before the incident, and what the property was worth afterwards. See Vogler v. Harrisburg Rys. Co., 85 Pa. Super. 483, 487 (1925). Where market value is unascertainable, replacement cost is often an acceptable alternative for measuring damages to personal property. See Pennsylvania Dept. of General Services v. U.S. Mineral Products, Co., 898 A.2d 590, 613 (Pa. 2006); Lynch v. Bridges & Co., Inc., 678 A.2d 414, 415 (Pa. Super. 1996). Cost of repair is also a method used to determine damages. Romesburg v. Caplan Iron & Steel Co., 122 A.2d 53, 54 (Pa. 1956). However, if the cost of repair exceeds the property’s fair market value, fair market value is the measure of damages. Pennsylvania Dept. of General Services v. U.S. Mineral Products Co. 898 A.2d 590, 596 (Pa. 2006).

Plaintiff’s complaint is not sufficiently specific as to damages. Plaintiffs have not set forth the fair market value of their dog at the time of injury nor have they itemized the cost of veterinary treatment to remedy the injury caused by the alleged malpractice. To the extent that this treatment, including future veterinary expenses, exceeds the fair market value of their dog at the time of the injury, their damages will be limited to that fair market value. This objection will be sustained.

ORDER

And now, this 30th day of April, 2015, upon consideration of the defendants’ preliminary objections, plaintiffs’ response thereto, and the briefs and arguments of all parties, it is ordered as follows:

1. The defendants’ demurrers as to plaintiffs’ request for punitive damages are sustained and that claim is stricken.

2. Defendant Abby Worton’s preliminary objection regarding the statute of limitations is denied.

3. The defendants’ preliminary objection for lack of specificity is sustained and Paragraph 36 of the complaint is stricken.

4. The defendants’ preliminary objection regarding the plaintiffs’ calculation of compensatory damages is sustained. Plaintiffs’ claims for unliquidated damages are stricken.

5. The plaintiffs shall have twenty days in which to amend their complaint in accordance with the accompanying opinion. Plaintiffs shall include a notice to plead with the amended complaint.

      . The record indicates that defendant Worton’s first preliminary objections were stricken from the January argument list.


author: PADILLA, J.,

text:
    Powelton Village Civic Association v. Zoning Board of Adjustment

      David George Orphanides, for appellants.

      Sharon Lee Suleta, for appellee Philadelphia Zoning Board of Adjustment.

      Andrew S. Ross, for appellee City of Philadelphia.

      Eileen B. Quigley and Neil Sklaroff, for appellee AT&T Wireless.
    May 14, 2015
   PADILLA, J.,

Appellants, the Powelton Village Civic Association, Donald White, Robert Roomet, Richard Lowe, Carolyn Healy, John Phillips, Marilyn Taylor, Mark Brack, Steve Bell, and Joan White appeal from this Court’s Order quashing their appeal from the final adjudication of the Zoning Board of Adjustment (“appellee”).

FACTUAL AND PROCEDURAL HISTORY

On June 17, 2014, AT&T Wireless (“applicant” or “intervenor”) applied to the Philadelphia Department of Licenses and Inspections (“L&I”) for a zoning/use registration permit for the proposed installation of six wireless telecommunications antennas in the bell tower of an existing church and the erection of an equipment shed and fence in the back yard of the property, located at 3500 Baring Street in the City and County of Philadelphia, Pennsylvania. See application for zoning/use registration permit no. 516496; findings of fact ¶ 1, 8. The property is a 33,441 square foot lot located at the southwest comer of Baring Street and North 35th Street, in an RSA-3 Residential district, consisting of an existing church and parking lot. See findings of fact ¶ 7.

On February 4, 2014, L&I issued a notice of refusal as the proposed wireless facility required a special exception for the RSA-3 residential zoning district, and that the proposed facility, located on a parcel used as a church, violated Section 14-40 l(4)(a) of the Philadelphia Zoning Code, prohibiting more than one principal use per lot in RSA zoning districts. See notice of refusal, 2/4/14; findings of fact ¶ 2.

On March 5, 2014, applicant filed an application for special exception. See findings of fact ¶ 3.

On March 6, 2014, applicant filed an appeal from the refusal to appellee. See findings of fact ¶3.

On April 23, 2014, all parties appeared at a public hearing on the matter before appellee.

Prior to the hearing, intervener’s attorney objected to the standing of the Powelton Village Civic Association. See findings of fact ¶ 5; N. T. 4/23/14 at 2-3.

Michael Clearey, a civil engineer retained by intervenor, testified that the antennas would be installed on both sides of the existing tower, behind louvers that would be replaced with fiberglass louvers to look “exactly as they are presently constructed.” Findings of fact ¶ 9, N. T. 4/23/14 at 31-32. The bell tower is 97.8 feet tall and structurally sufficient to support the antennas; cabling would be run from the tower, along the church’s roof, through the attic, down the back of the building, and to the proposed equipment shelter twenty (20) feet from the church. See findings of fact ¶ 10-11; N. T. 4/23/14 at 31-33.

The shelter would be 11’ 5” by twenty-eight (28) feet and approximately ten (10) feet high, enclosed by board fencing that would shield it from view, replacing an existing chain link fence. See findings of fact ¶ 12; N. T. 4/23/14 at 34-36. The entire enclosure would measure 812 square feet, housing an emergency generator on one side and telecommunications equipment on the other. See findings of fact ¶ 12-13; N. T. 4/23/14 at 31-33. The shelter would be equipped with a fire prevention system and emergency alarms, as well as a timed flood light for the technician. See findings of fact ¶ 14; N. T. 4/23/14 at 44-45. The generator would run continuously only during some power outages, but also contained a DC battery backup; other than emergencies, it would run for twenty (20) minutes each week for maintenance purposes at times least intrusive to the neighborhood. See findings of fact ¶ 15; N. T. 4/23/14 at 39, 42. Cleary testified that the generator would not produce any more noise than that used by AT&T across the board. See findings of fact ¶ 17; N.T. 4/23/14 at 42, 51-52.

Cleary testified that the installation would not cause congestion in the streets, overcrowd the land, place a burden on public facilities, impair or permanently injure the use of other conforming properties, impair an adequate supply of light or air to adjacent properties, endanger the public safety, or alter the essential character of the neighborhood. See findings of fact ¶ 18; N. T. 4/23/14 at 51-52.

Matt Caffrey, a site acquisition specialist, testified that he works with wireless carriers to help them identify properties based upon the specific requirements they possess, based upon a search ring provided by the carrier’s radio frequency engineer. See findings of fact ¶ 22-23; N. T. 4/23/14 at 4-5. He then identifies properties meeting the specifications as possible, and assisting with leasing, permitting, and zoning. See findings of fact ¶ 24; N. T. 4/23/14 at 5. Several sites on Drexel University’s campus were considered, but were rejected for various reasons. See findings of fact ¶ 25-27; N. T. 4/23/14 at 6-8, 13-17. The church was then identified as an ideal site. See findings of fact ¶ 28; N. T. 4/23/14 at 8-9. In addition to the zoning approvals, the installation would require building permits, electrical permits, and the approval of the State Historic Preservation Office. See findings of fact ¶ 29; N. T. 4/23/14 at 9.

Caffrey testified that the proposed structure met all requirements for special exceptions and variances, and would not overcrowd the land, cause congestion in the streets, or burden public facilities. See findings of fact ¶ 31-32; N. T. 4/23/14 at 10-12. With regard to unnecessary hardship, Caffrey testified that this was the only site that fit the specifications and did not also require a building height variance. See findings of fact ¶ 33; N. T. 4/23/14 at 11. The approvals were the minimum necessary to afford relief, and the proposed use would not cause significant environmental damage or alter the essential character of the neighborhood. See findings of fact ¶ 34; N. T. 4/23/14 at 12.

Brock Riffel, a radio frequency design consultant, testified on behalf of intervenor. He testified as to coverage maps to show where AT&T had existing reliable coverage, and where AT&T would like to have reliable coverage. See findings of fact ¶ 38-39; N. T. 4/23/14 at 58. He explained that changing cellular usage, including a 1,300 percent increase in data usage, with sixty (60) percent of that usage in the home, had driven intervenor to provide services closer to residential areas. See findings of fact ¶ 41-42; N. T. 4/23/14 at 61-64. Riffel testified that the property is located at the center of the depicted coverage gap, but the installation would fill only a subset of the area. See findings of fact ¶ 43; N. T. 4/23/14 at 63-65. Riffel testified that the range of antennas proposed is limited due to high population density and old houses built closely together. See findings of fact ¶ 44; N. T. 4/23/14 at 63. However, moving the site north to an area with less restrictive zoning, would still leave a “hole” where the majority of the residential usage is located. See findings of fact ¶ 45; N. T. 4/23/14 at 66, 74-75. Riffel testified that the proposed facility would be “well within” FCC guidelines for electromagnetic exposure levels and met the requirements for the grant of a variance and special exception, and the denial would affect intervener’s ability to provide service in the subject area. See findings of fact ¶48-49; N. T. 4/23/14 at 67, 74-75.

John Phillips (“Phillips”), residing at 3503 Baring Street, appeared as vice president of the Powelton Village Civic Association, as a representative of the RCO, and on behalf of himself as an immediate neighbor. See findings of fact ¶ 6; N. T. 4/23/14 at 113-114. Phillips testified that he did not want another use of the residential building, and was concerned about: noise from the generator; the potential for co-location by other carriers, and historic and structural changes involved in installing the antennas in the bell tower. See findings of fact ¶51-52; N. T. 4/23/14 at 87-88. Phillips also submitted a petition signed by area residents opposing a “tower” at the property. See findings of fact ¶ 52; N. T. 4/23/14 at 87-89.

On July 31, 2014, a scheduling order was issued by this court. Appellant’s brief was due October 6, 2014; appellee’s brief by November 3, 2014. Oral arguments were to take place December 1, 2014.

On September 13, 2014, and September 28, 2014, this court received the full certified record from appellee. In its conclusions of law, appellee found that, based on the evidence of the record, the arguments presented, and applicable code provisions, the requested relief was properly granted with the two provisos; specifically, appellee found that the criteria for a special exception were met and that L&I erred in concluding that a variance was required. See conclusions of law ¶ 1. However, if a variance was required, appellee also found that intervenor had satisfied the requirements as the specific allowance of wireless facilities in RSA-3 districts by special exception governed over the general provision prohibiting more than one principal use per lot. See conclusions of law ¶ 1-9. Additionally, the board found that giving effect to the provision prohibiting more than one principal use per lot would yield “the absurd result” of allowing antennas to be attached only to vacant buildings. See conclusions of law ¶ 9.

Additionally, appellee found that intervenor had satisfied the criteria for the grant of a special exception by presenting expert testimony and/or submitted exhibits establishing compliance with the requirements for grant of a special exception, and that there was no credible, objective evidence of record showing that the proposed facility would have an adverse impact greater than would normally be expected of such a use, or that it would be substantially likely to cause a detrimental impact on the health, safety, and welfare of the neighborhood, or failed to conform with the purpose, spirit, and intent of the zoning code. See conclusions of law ¶ 10-17.

Additionally, although appellee found that a variance was not required, intervenor had also satisfied the requirements of a variance grant due to the modified standard of hardship outlined in the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), and that intervenor had established that the requested variance was the least necessary to afford relief, would not alter the character of the neighborhood, impair the use of surrounding properties, or adversely affect the public health, safety or welfare. See conclusions of law ¶ 24-31; Philadelphia Code § 14-303.

On October 6, 2014, appellee filed a motion for extraordinary relief due to the late filing of the certified record in order to allow both parties to file their briefs.

On October 23, 2014, this court granted appellant’s motion for extraordinary relief and rescheduled oral argument for December 23,2014. Appellant’s brief was to be due November 12, 2014 and appellee’s brief was to be due December 12, 2014.

On December 12, 2014, intervenor filed a motion to quash. In the motion, intervenor noted that appellant’s brief was due November 12, 2014 and that appellant had neither filed a brief nor a motion for extraordinary relief, and thus failed to prosecute the appeal and deprived intervenor of the timely adjudication of said appeal. Consequently, intervenor requested that this court quash the appeal pursuant to Philadelphia County Court Rule 320(c) and established case law that failure to strictly comply with procedural and time requirements will result in the quashing of a zoning appeal. See Ottaviano v. Society Hill Civic Ass ’n, 457 A.2d 1041, 1042 (Pa. Commw. Ct. 1982); see also King Productions v. City of Pittsburgh, 367 A.2d 322 (Pa. Commw. Ct. 1976).

On December 16, 2014, appellants filed a motion for extraordinary relief. Appellant’s counsel averred that he elected to continue with representation of appellants despite the impending birth of his next child, however, “issues did arise leading up to the scheduled due date of counsel’s next child and appellants’ counsel was thus unable to file the appellants’ brief by the date provided for by this court’s October 21, 2014 order...” Appellant’s counsel averred that he had contacted appellees as well as counsel for intervenor and that there was no objection to the granting of said motion or entering of the proposed order.

On January 13, 2015, this court granted appellants’ motion. Appellants’ brief was due January 9, 2015; appellees and intervenors’ briefs were now due February 17,2015, and oral argument would be held March 4,2015.

On February 3, 2015, this court denied intervenors’ motion to quash.

On February 4, 2015, following further consideration of the motions and record, this court vacated its previous orders and quashed appellants’ appeal.

On March 6, 2015, appellant filed a timely notice of appeal to the Commonwealth Court of Pennsylvania.

On March 9, 2015, this court issued its order pursuant to Pa.R.A.P. 1925(b), directing appellants to file their concise statement of matters complained of on appeal within twenty-one (21) days.

On March 30, 2015, appellants filed their concise statement of matters complained of on appeal. However, said statement was in no way concise; however, in eight (8) pages, appellants did identify several court errors, including: that this court abused its discretion when it did not rule on appellants’ motion for three (3) weeks; that this court erred when it quashed appellants’ appeal; that this court erred in failing to provide appellants the opportunity for a fail trial; that this court erred “given the breakdown in the administrative process which established the non-negligent failure on the part of appellants to prosecute their appeal;” that this court erred when there were unique and compelling circumstances in appellants’ failure to prosecute; that this court erred when appellants had “demonstrated a manifest intent to prosecute” their appeal; and finally that this court erred by not modifying the terms of appellants’ proposed order when there was a “substantial change of circumstances” justifying modifications of the order.

DISCUSSION

Appellant challenges this court’s denial of its statutory appeal from the final adjudication of the zoning board of adjustment. The standard of review from a case in which the trial court did not take additional evidence is limited to determining whether the zoning board committed an abuse of discretion or error of law in rendering its decision. Township of Exeter v. Zoning Hearing Board, 599 Pa. 568, 962 A.2d 653, 659 (Pa. 2009). An abuse of discretion may be found only where the zoning board’s findings are not supported by substantial evidence, which is “relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached.” Id. Arguments not made before the zoning board are considered waived for purposes of appeal. 1700 Columbus Associates, LLC v. City of Philadelphia, Zoning Bd. of Adjustment, 976 A.2d 1257, 1268 (Pa. Commw. Ct. 2009). An appellate court errs when it substitutes its judgment on the merits for that of a zoning board. Id.

On appeal, all of appellants’ issues relate to this court’s grant of intervener’s motion to quash for failure to prosecute the appeal. Failure to strictly comply with procedural and time requirements will result in the quashing of a zoning appeal. Ottaviano v. Soc ’y Hill Civic Ass ’n, 73 Pa. Cmwlth. 307, 309-10, 457 A.2d 1041, 1042 (1983); see also King Productions, Inc. v. Board of Adjustment *310 of the City of Pittsburgh, 27 Pa. Commonwealth Ct. 256, 367 A.2d 322 (1976). In the instant case, although this court originally granted appellants’ motion for extraordinary relief, the record reflects that appellant failed to comply with scheduling requirements.

The first extension of time was granted October 6, 2014, at the request of appellee, extending appellants’ scheduling deadline until November 12, 2014. During that time, appellants did not file a request for extension of time nor did they file their brief. It was not until December 16,2014, four days after intervener’s motion to quash was filed, that appellants filed a motion for extraordinary relief.

Additionally, this court did not rule on the motions until January 13, 2015. In the intervening time, appellant did not file a brief. Finally, when this court entered an order on intervenors’ motion to quash on February 3, 2015, almost a month later, appellant still had not filed a brief. Consequently, this court did not abuse its discretion in quashing appellants’ appeal for failure to prosecute.

CONCLUSION

For all of the reasons stated above, this court’s decision should be affirmed and appellant’s appeal dismissed.

      . Although this order was not docketed until January 13, 2015, appellant did not file a brief in the intervening time.