text:
    Detweiler v. Commonwealth

      C.P. of Monroe County,
    No. 972 CIVIL 2010

      Leo P. Jackson, for plaintiff.

      John W. Stahl, for defendant.
    May 22, 2015
   WILLIAMSON, J,

This matter comes before us on an Amended Motion for Summary Judgment filed by the Commonwealth of Pennsylvania, Department of Transportation (hereafter “Defendant”) on March 9, 2015. David G. Detweiler (hereafter “Plaintiff’) filed a Brief in Opposition to Defendant’s Amended Motion for Summary Judgment on April 30, 2015.

Background

Plaintiff alleges that, on July 6, 2009, he was injured as a result of a bicycle crash when he struck a pothole on Route 447, a state designated highway. Plaintiff alleges that Defendant had actual, written notice of the condition of the roadway based upon a Travel Advisory issued by Defendant on May 15, 2009. This Travel Advisory stated that Defendant would be performing pothole patching on Creek Road between US 209 and Pike County Line in Price Township, Monroe County, starting May 20, 2009, and to be completed by May 22, 2009.

On November 19, 2013, Defendant took depositions of Plaintiff and the sole eye witness to the alleged incident, Donald Shenk. Defendant provided the Affidavit of Robert P. Mudrick, the person in charge of Defendant’s maintenance and clerical employees in Monroe County at the time of the alleged incident. Mr. Mudrick has since retired from that position. Plaintiff has taken depositions of Mr. Mudrick, Lewis Morton, Stanley F. Storm, Jr., and Dale G. Evans.

According to these depositions, the work vehicles provided to Defendant’s employees were equipped with spray paint, including orange paint. Defendant alleges that someone had circled the pothole in question with orange spray paint prior to the alleged incident. There has been no evidence of any pothole repairs being done on the roadway at issue until after the alleged incident.

Argument

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

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

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

Generally, the Commonwealth is immune from lawsuits for damages resulting from a negligent act because of the defense of sovereign immunity. 42 Pa.C.S.A. § 8522. However, there are certain circumstances which provide for a waiver of the defense of sovereign immunity. 42 Pa.C.S.A. § 8522 delineates these exceptions to sovereign immunity and states, in relevant part:

(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
(5) Potholes and other dangerous conditions. — A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.

42 Pa.C.S.A. § 8522.

In their Brief in Support of Amended Motion for Summary Judgment, Defendant cites to a case from the Commonwealth Court of Pennsylvania. In Stevens v. Com., Dep’t. of Transp., the court held that evidence of a pothole which existed in the roadway located within a mile and a half of Pennsylvania Department of Transportation’s local maintenance shed, and that the Department repaired the pothole within four or five days of the accident in question, was not sufficient to charge the Department with actual advance written notice of existence of potholes so as to come within exception to sovereign immunity. Stevens v. Com., Dep’t of Transp., 492 A.2d 490 (Pa. Cmwlth. 1985). The court stated that the requirements of the statute are clearly written and create a very narrow exception to the defense of sovereign immunity for damages caused by potholes. Id. at 493. In that case, none of the witnesses testified that the Department was aware of the existence of the pothole prior to the accident and the court found that no reasonable person would have been able to resolve the issue of the Department having actual advance written notice of the pothole in order to satisfy the exception to sovereign immunity. Id.

In their respective briefs, both parties cite to another case from the Commonwealth Court of Pennsylvania. In Walthour v. Com., Dep’t of Transp., the court held that an exchange of letters between the Department and a Senator regarding necessary repairs on the road which contained the pothole at issue was a sufficient material factual dispute for the plaintiff to survive summary judgment based on the sovereign immunity defense. Walthour v. Com., Dep’t of Transp., 31 A.3d 762, 768 (Pa. Cmwlth. 2011). In that case, a State Senator had written a letter to the Department citing the specific road and city stating that the road had “fallen into disrepair” and discussed problems with patchwork repairs that needed subsequent repairs. Id. at 767. There was also evidence presented of a letter sent by the Department acknowledging receipt of the Senator’s letter and that the Department intended to make major improvements to that section of the roadway. Id.

In their Brief in Opposition to Defendant’s Motion for Summary Judgment, Plaintiff also cites to a case from the Commonwealth Court of Pennsylvania. In Merlingv. Com., Dep’t of Transp., the court held that the plaintiff had met his burden of proving actual written notice by producing letters written by DOT employees acknowledging having received written complaints concerning the poor condition of the highway. Merling v. Com., Dep’t of Transp., 468 A.2d 894, 897 (Pa. Cmwlth. 1983). A witness in that case testified to writing the letters to the Department complaining about the poor condition of the highway in question and receiving the letters from the Department which acknowledged receipt of the complaints. Id. The Department did not produce the employees who wrote the letters at trial and the jury was instructed that the letters spoke for themselves. Id.

Here, there is no evidence of any written complaints to Defendant about the specific road in question, and there is also no evidence of Defendant acknowledging receipt of any complaints. In both Walthour and Merlin, there was evidence of letters written from the Department that acknowledged they had received complaints regarding a dangerous condition of the road at question. In those cases, the pothole exception to sovereign immunity was met because there was evidence of actual written notice to the Department and evidence of the Department acknowledging the notice by writing letters addressing the issues in response.

The facts of this case more closely resemble those found in Stevens because no witness has testified that Defendant had actual written notice of the dangerous condition of the pothole in question. In this case, the only evidence Plaintiff has provided suggesting Defendant had actual written notice is the Travel Advisory. In both Walthour and Merlin, the notice given to the Department mentioned dangerous conditions on specific roadways. Here, the Travel Advisory states that Defendant would be performing pothole patching on Creek Road between US 209 and Pike County Line in Price Township, Monroe County. Pl’s Br. in Opp’n to Mot. for Summ. J. Ex. B. The length of the roadway known as Creek Road covers more than twenty (20) miles and stretches through multiple townships. Id. Also, the location of the pothole in question is not even within the parameters mentioned in the Travel Advisory, For example, there is more than one road in Monroe County referred to as “Creek Road.” Furthermore, the area mentioned in the Travel Advisory, from Route 209 through to the Pike County line in Price Township is not located in the stretch of road where Plaintiff had the accident. The “Creek Road” Plaintiff claims to have had the accident is actually State Route 447, and while Route 447 runs to the Pike County line, near where Plaintiff had the accident, the Monroe County township that borders Pike County, and where the accident occurred, is Barrett Township. The Travel Advisory is not sufficient written notice of the dangerous condition of the pothole which allegedly caused Plaintiff’s accident.

Conclusion

Plaintiff has not produced evidence of any written complaints regarding that pothole in that specific area, nor is there evidence of any written acknowledgements by Defendant regarding the dangerous condition of the pothole which allegedly caused Plaintiff’s accident. The only evidence Plaintiff has presented regarding actual written notice to Defendant is the Travel Advisory. This court believes that no reasonable jury could find that the contents of the Travel Advisory are sufficient to establish the element of actual written notice required to satisfy the very narrow pothole exception to the defense of sovereign immunity. Therefore, we will grant Defendant’s Amended Motion for Summary Judgment.

ORDER

AND NOW, this 22nd day of May, 2015, upon consideration of the Amended Motion for Summary Judgment by Defendant, Defendant’s Amended Motion for Summary Judgment is GRANTED.

      . Plaintiff states in his Complaint the accident occurred on Route 447 north of Canadensis, Pennsylvania. That location is in Barrett Township as anything north of Canadensis on Route 447, and still in Monroe County is Barrett Township.


source: Caselaw Access Project

author: BELTRAMI, J.,

license: Public Domain

text:
    Senick v. Presby

      C.P. of Northampton County,
    No. C-48-CV-2013-3818

      Pro se plaintiff.

      Robert A. Pinel, for defendant.
    May 28, 2015
   BELTRAMI, J.,

matter is before the Court on Defendant’s “Preliminary Objections to Plaintiff’s Amended Complaint,” filed on October 14, 2014. On November 7, 2014, Plaintiff filed a Response to the Preliminary Objections. Briefs have been filed, and the matter was submitted to the undersigned for disposition, on briefs, at the April 27,2015, session of Argument Court.

The procedural history of the case was succinctly stated in the Opinion filed by the Honorable Paula A. Roscioli on September 5, 2014, as follows:

In or about May 2011, Plaintiff David Senick (Plaintiff) purchased an automobile from Mark’s Automotive, Inc., of which Defendant Mark Presby (Defendant) is an owner. Perceiving various mechanical failures with respect to the vehicle, Plaintiff filed a lawsuit in or about August 2011 against Mark’s Automotive, Inc. before Magisterial District Justice Joseph K. Bamer, at case number MJ-3203-CV331-2011. Following the magistrate’s entry of judgment in favor of Mark’s Automotive, Inc., Plaintiff filed an appeal in this Court on November 9, 2011, at case number C-48-CV-2011-10745, asserting a cause of action for breach of warranty (Warranty Action). Plaintiff filed the Complaint in that matter soon thereafter, to which Mark’s Automotive, Inc. filed preliminary objections. Following the Court’s decision thereupon, Plaintiff filed an Amended Complaint on October 11, 2012. On February 13, 2013, Mark’s Automotive, Inc. filed a Motion for Summary Judgment. On or about March 15, 2013, the parties in the Warranty Action found themselves before the Court with respect to a discovery motion. Following some discussion between Plaintiff and counsel for Mark’s Automotive, Inc., the parties reached an agreement to settle the entire matter, and on April 22,2013[,] a praecipe to settle, discontinue, and end was filed in the Warranty Action by Mark’s Automotive, Inc. As a result of various disagreements between the parties with respect to the settlement of that case, on April 29, 2013[,] Plaintiff filed a Motion to Continue Complaint and Vacate Praecipe to Settle, Discontinue, and End. That motion was denied by Order of Court dated May 10, 2013.
On April 25, 2013, Plaintiff filed the Complaint in the present matter, purporting to set forth claims for slander, defamation of character, emotional distress, harassment, fraud, and verbal and physical threats, all with respect to events which took place between the parties after March 15, 2013. . . . On July 25, 2014, Defendant filed ... preliminary objections.

(Op. 2-3, Sep. 5, 2014.) All of the causes of action contained in Plaintiff’s Complaint were based upon a cease and desist letter (“Cease and Desist Letter”) issued to Plaintiff by Defendant’s counsel on April 11, 2013, following the settlement of the Warranty Action. (See Compl. ¶ 14, Ex. 9.) On September 5,2014, Judge Roscioli sustained Defendant’s demurrer to Plaintiff’s Complaint, determining that the Cease and Desist Letter did not support the claims contained in Plaintiff’s Complaint. (See Op. 5-6, Sep. 5, 2014.) Judge Roscioli granted Plaintiff leave to file an amended complaint within twenty days.

On September 23, 2014, Plaintiff filed an Amended Complaint. Although Plaintiff has now added facts outlining the procedural history and the actions he has taken since filing the Complaint (See Am. Compl. ¶¶12-43.), it is clear that all of Plaintiff’s claims are still based upon the Cease and Desist Letter. (Id. ¶ 44, Preliminary Statement.) Based upon that letter, Plaintiff seeks damages and punitive damages for “slander,” “harassment,” “fraud,” “mental cruelty,” and “libel” in Count I of the Amended Complaint. In Count II, Plaintiff does not state a cause of action but, rather, seeks “costs and attorney’s fees” for the causes of action purportedly stated in Count I.

In his Preliminary Obj ections to the Amended Complaint, Defendant raises three objections. First, Defendant asserts a demurrer, arguing that Plaintiff’s Amended Complaint fails to set forth a cause of action. The question presented by a demurrer is whether, on the facts pleaded, the law says, with certainty, that no recovery is possible. Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1021 n.7 (Pa. Commw. 2014). The Court must resolve a demurrer solely on the basis of the pleadings, without reference to testimony or other outside evidence. Hill v. Ofalt, 85 A.3d 540, 546 (Pa. Super. 2014). When considering a demurrer, the Court must accept, as true, all material facts averred in the challenged pleading, as well as all inferences that can be reasonably deduced therefrom. Schemberg v. Smicherko, 85 A.3d 1071, 1073 (Pa. Super. 2014).

Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Id.

Because all of Plaintiff’s claims originate from the Cease and Desist Letter sent to Plaintiff by Defendant’s counsel on April 11, 2013, the Court will reproduce it here, verbatim:

Dear David Senick:

I represent Marks Automotive, Inc., Mark Presby and Karen Presby.
This CEASE AND DESIST letter is to inform you that your persistent actions against my clients, including but not limited to trespass, harassment, verbal and physical threats, defamation, and stalking [sic]. You are ORDERED TO STOP such activities immediately as they are being done in violation of the law. You are also ORDERED TO STOP any contact with their family, relatives, friends, relations, employees, agents and the like, including but not limited to employees and customers of Marks Automotive, Inc., and any friends and family of Mark and Karen Presby. My clients have the right to remain free from your activities as they constitute trespass, harassment, stalking, and defamation. You are not allowed on any property owned, lease [sic] or used by Marks Automotive, including but not limited to its employees and agents, or by Karen and Mark Presby, including but not limited to their friends and relatives.
My clients will pursue any legal remedies available to me against you if these activities continue. These remedies include but are not limited to: contacting law enforcement to obtain criminal sanctions against you, and suing you civilly for any harassment or damages they incur as a result of your actions.
You risk incurring severe legal consequences if you fail to comply with this demand. This letter acts as your final warning to discontinue this unwanted conduct before my clients pursue legal actions against you. At this time, my clients are not contacting the authorities or filing a civil suit against you, as they hope to resolve this without authoritative involvement.
My clients are not under any circumstances, however, waiving any legal rights they have presently, or future legal remedies against you by sending you this letter. This order acts as your final chance to cease your illegal activities before my clients exercise their rights.

(Am. Compl. Ex. 5.) The Cease and Desist Letter is signed by Defendant’s counsel and indicates that a copy was sent to Defendant and his wife, Karen Presby. (Id.)

Initially, the Court notes that the Amended Complaint violates Pennsylvania Rule of Civil Procedure 1020(a), which states that “[e]ach cause of action and any special damage thereto shall be stated in a separate count containing a demand for relief.” Pa.R.C.P. No. 1020. The Amended Complaint violates Rule 1020 because Plaintiff purports to claim multiple causes of action in Count I, while Count II does not state a cause of action yet makes a demand for costs and attorney’s fees. The Court will ignore these procedural defects and will analyze Defendant’s demurrer as to each purported cause of action alleged by Plaintiff in Count I.

First, Plaintiff alleges slander and libel, which are causes of action for defamation, with slander being oral defamation and libel being written defamation. See Agriss v. Roadway Express, Inc., 483 A.2d 456, 469 (Pa.Super. 1984). The elements of defamation are as follows:

(а) Burden of plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(б) Special harm resulting to the plaintiff from its publication.
(7)Abuse of a conditionally privileged occasion.

42 Pa.C.S.A. § 8343(a)(1)-(7). As noted above, the second element of a defamation claim is publication by the defendant. “[Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.’’'’ Agriss, 483 A.2d at 463 (emphasis added). In this case, there is no allegation that the Cease and Desist Letter was sent to anyone other than Plaintiff. Thus, Plaintiff’s Amended Complaint fails to state a cause of action for defamation.

Next, Plaintiff alleges “harassment.” “Pennsylvania courts have not heretofore recognized a separate tort of harassment.” DeAngelo v. Fortney, 515 A.2d 594, 596 (Pa. Super. 1986). Thus, Plaintiff cannot recover for “harassment.”

Plaintiff next alleges fraud. Rule 1019(b) states that “ [a] verments of fraud ... shall be averred with particularity.” Pa.R.C.P. No. 1019(b). Although Plaintiff’s Amended Complaint violates this rule, the Court will ignore the violation and will address the merits of Defendant’s demurrer to the claim.

In order to prove fraud the following elements must be shown: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012). In this case, even if the Court assumes, for the sake of argument, that the allegations contained in the Cease and Desist Letter are false, there is no averment that Plaintiff relied upon those allegations, let alone was injured by such reliance. Thus, Plaintiff’s Amended Complaint fails to state a cause of action for fraud.

Finally, Plaintiff alleges “mental cruelty,” which the Court will broadly interpret as a claim for intentional infliction of emotional distress. “The elements of intentional infliction of emotional distress are: (1) a person who by extreme and outrageous conduct (2) intentionally or recklessly causes (3) severe emotional distress to another.” Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw. 2010). “‘Outrageous or extreme conduct’ has been defined by the appellate courts of this Commonwealth as conduct that is ‘so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.’” Swisher v. Pitz, 68 A.2d 1228, 1230 (Pa. Super. 2005) (quoting Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1122 n.5 (Pa. Super. 2004)). In Swisher, the Superior Court affirmed the trial court’s sustaining of the defendant’s demurrer to the plaintiff’s claim for intentional infliction of emotional distress after the trial court determined that the defendant’s conduct was not outrageous or extreme, as a matter of law, “for purposes of the tort of intentional infliction of emotional distress.” Id. at 1231. Likewise here, having reviewed the Cease and Desist Letter, the Court can determine, as a matter of law, that it does not constitute extreme and outrageous conduct. Therefore, Plaintiff’s Amended Complaint fails to state a cause of action for intentional infliction of emotional distress.

For all of the above reasons, Plaintiff’s Amended Complaint fails to state any cause of action, and Defendant’s demurrer will be sustained. In light of the Court’s sustaining of Defendant’s demurrer, the Court need not consider Defendant’s other objections.

Plaintiff was granted leave to file an amended complaint by Judge Roscioli and has alleged no new facts in his Amended Complaint other than facts in the nature of procedural history occurring after the filing of his Complaint. More importantly, it is evident that the sole genesis of Plaintiff’s purported claims is the Cease and Desist Letter. Having reviewed that letter, which does not create any cause of action under Pennsylvania law, it is evident to the Court that no amended pleading by Plaintiff will convert that letter into a viable cause of action. Thus, granting Plaintiff leave to amend would be an exercise in futility, and the Court will not do so. See Hill, 85 A.3d at 557 (leave to amend following sustaining of demurrer may be refused where there is no reasonable probability that amendment will cure defect).

WHEREFORE, the Court enters the following:

ORDER OF COURT

AND NOW, this 28th day of May, 2015, Defendant’s “Preliminary Objections to Plaintiff’s Amended Complaint,” filed on October 14, 2014, are hereby SUSTAINED, in part. Plaintiff’s Amended Complaint, filed on September 23,2014, is hereby DISMISSED, with prejudice.

      . The warranty attached to Plaintiff’s Complaint lists Defendant’s business name as “Mark’s Automotive, Inc.” (Compl. Ex. 1.) In the “cease and desist” letter, Defendant’s counsel refers to the business as “Marks Automotive, Inc.”

      . Defendant’s counsel sent the Cease and Desist Letter acting as the attorney for Defendant and his wife. Thus, the fact that a copy of the letter was sent to Defendant and his wife is not publication to a third party. Likewise, if Plaintiff contends that the defamatory matter is information about Plaintiff’s alleged conduct that Defendant conveyed to his counsel in order for his counsel to draft the letter, once again, this would not be publication to a third party, but rather confidential attorney/ client communication.


author: TUNNELL, J.,

text:
    In re Estate of Miller

      C.P. of Chester County,
    No. 1514-0948

      Daniel B. Evans, for executor/fiduciary.

      Jacques H. Geisenberger, Jr. and Andrew J. Throckmorton, for respondent.
    June 3, 2015
   TUNNELL, J.,

The Executor of the Estate of Scott P. Miller filed a Petition to Sell Real Property, pursuant to 20 Pa. C.S.A. §3353 of the Decedents, Estates and Fiduciaries Code (the “PEF Code”), entitled “Order of Court”, namely in regard to a parcel containing a dilapidated commercial building. Attached to this is an apartment where the decedent resided with Respondent, Julia Koliopulos, a good friend, for several years before his death. Because of the condition of the property, the Petitioner alleged that the right of occupancy granted to the Respondent was illegal, impossible of fulfillment and void from inception. Ms. Koliopulos responded that she had a life estate, and that the sale of the property was neither desirable nor necessary for the proper administration and distribution of the estate.

After trial by the court, sitting without a jury, on March 16,2015, and having considered the parties’ briefs, the court determines that Ms. Koliopulos has a right of occupancy, not a legal life estate, but that notwithstanding the dilapidated condition of the commercial building to which her apartment is attached, it is against the testator’s intention to dispossess her and make her gift virtually worthless under the circumstances presented. The court makes the following:

FINDINGS OF FACT

1. Scott P. Miller (the “decedent” or “testator”), died on May 19,2014, at the age of 62, a resident of Lower Oxford Township, Chester County, Pennsylvania. [Petition and Answer, ¶1.]

2. The will of the decedent dated February 18,2014, was probated by the Register of Wills of Chester County, No. 1514-0948, and letters testamentary were granted to the petitioner, Pamela M. Miller. [Petition and Answer, ¶ 3.]

3. A later will was discovered, dated May 8,2014, which was identical in its provisions to the will admitted to probate (the “Will”). Upon the petition of the petitioner, the Register of Wills amended its records to admit the later will to probate as the last will of the decedent. [Petition and Answer, ¶ 4.]

4. Testator in Item Second of the Will gave to his friend, Julia Koliopulos (the “Respondent”) a vehicle of her choice from the estate. [Will, 5/8/14, at 1.]

5. Testator in Item Third of the Will directed that all personal effects be sold and added to the residue of his estate. [Will, 5/8/14, at 1.]

6. Testator gave the residue of his estate to his daughter, Pamela M. Miller, the Petitioner. [Will, 5/8/14, at 2.]

7. Julia Koliopulos resided with the decedent at the time of his death at 448 Calvary Road, Nottingham, PA 19362. [Petition and Answer, ¶ 5.]

8. By Item Third of his wills dated February 18, 2014, and May 8, 2014, the decedent specifically devised his property known as 448 Calvary Road, Nottingham, Pennsylvania, upon the following terms:

In the event that I own the property located at 448 Calvary Road, Nottingham, Pennsylvania at the time of my death, I give and bequeath said real property to my daughter, PAMELA MAY MILLER of Marcus Hook, Pennsylvania; provided, however, that if my friend, JULIA KOLIOPULOS, survives me she shall have the personal right to use and occupy said property, rent free, for the remainder of her life, or until such time as she vacates the property and takes up residence elsewhere, whichever event shall occur first.
Such right shall be subject to the condition that JULIA KOLIOPULOS shall be responsible for the timely payment of utilities. However, I direct that my daughter, PAMELA MAY MILLER, shall be responsible for the timely payment of all real estate taxes and homeowners’ insurance and repairs and maintenance. JULIA KOLIOPULOS shall not have any right to reimbursements from the estate or from my daughter with respect to any expenditures which she makes related to the said property.

[Petition and Answer, ¶ 6.]

9. In addition to those powers conferred by law, Testator expressly granted Petitioner a number of discretionary powers to be exercised without court approval in Item Ninth including “(b) To sell any and all real estate held as an asset in my estate and trust estate at such times, at public or private sale, for such prices and upon such terms as deemed advisable, then to make, execute and deliver any deed or deeds therefore, conveying title thereto, in fee simple absolute, or for any less estate to any purchaser or purchasers.” [Will, 5/8/14, at 3.]

10. Julia Koliopulos resided with Testator for some years prior to his death in a house owned by decedent at 450 Calvary Road.

11. Decedent subdivided this property into two (2) parcels (448 and 450 Calvary Rd.) several years prior to commencing the relationship with Julia Koliopulos. When decedent sold 450 Calvary Road, he retained 448 Calvary Road and he and Ms. Koliopulos moved into an apartment there, where they lived together for at least three (3) years preceding his death. [N.T., pp. 74-75.]

12. The main improvement on the property is a commercial building, at one time used as part of a mushroom farm operation. [N.T., p. 8,11. 15-21.]

13. The apartment was added at some point to the rear of the mushroom building. [Ex. P-1.]

14. There is no other residential building on the property. [N.T., p. 8,11. 14-15.]

15. The apartment shares a common wall with the mushroom building.

16. The apartment is fully functional as a residential unit, equipped with an on-site well and septic system, hot and cold water, electricity, indoor plumbing including a shower and toilet, and other infrastructure required to provide utilities to the apartment. [N.T., p. 83.]

17. John Smirga, who testified for the Petitioner regarding the property’s condition, is a licensed professional engineer and was qualified as an expert witness on building construction and building code requirements.

18. The roof over the mushroom house has partially collapsed.

19. There are numerous areas of the concrete block walls of the mushroom building that are cracked. [Ex. P-1.] The slab on the southern side of the building attached to the apartment is cracked, and the wall adjacent to that crack has the worst damage of the building. [N.T., p. 11, 1. 22, to p. 12, 1.3.] In sections of the wall near the apartment, the blocks are separated by a couple of inches. [N.T., p. 11,11. 15-19.]

20. No certificate of occupancy was issued by the Township of Lower Oxford for the property. [Ex. P-2.]

21. The Respondent has not applied for a certificate of occupancy. [N.T., p. 107, 11.19-20.]

DISCUSSION

Grant of Life Estate or Only Right of Occupancy

In Pennsylvania, the right of a person to do what he wishes with his own property has always been liberally construed. Cannistra’s Est., 384 Pa. 605, 121 A.2d 157 (1956). Atestator has aright to dispose of his property with such restrictions and limitations that are not repugnant to law as he sees fit, and his intentions ought to be carried out unless they contravene some positive rule of law or are against public policy. Moorehead’s Est., 289 Pa. 542, 137 A. 802(1927).

The pole star in construction of any will is the intention of the testator. Britt’s Est., 369 Pa. 450, 87 A.2d 243 (1952) Did the testator in this case intend to devise an estate in land, or did he merely intend the gift of a privilege, personal to the recipient, to reside until she might move away or die?

Of initial consideration is the phrase “use and occupy”. Our courts have interpreted this phrase in various ways depending on its use and position in the will and the purpose for which its interpretation is sought. As stated by Mr. Justice Bell in Fry v. Stetson, 370 Pa. 132, 134, 87 A.2d 305, 307 (1952):

The authorities in this and other states are not in accord as to whether the words ‘use and occupy’ have a fixed meaning or create a personal license or a life estate. Their meaning must depend on the language employed in each case.

An examination of the cases well illustrates what was said in Long’s Est., 270 Pa 480, 487, 113 A. 675, 677 (1921):

precedents are of little value in the construction of wills, because when used under different circumstances and with different context, the same words may express different intentions. When the intent of the testator, and by that is meant his actual intent, can be fairly gathered from his words, the fact that another testator has used the same words with a different meaning is of no avail.

It would therefore scarcely be helpful to analyze in detail cases which involved a question similar to that here presented since the decisions naturally depended upon their own peculiar facts. Baldesberger v. Baldesberger, 378 Pa. 113, 105 A.2d 713 (1954).

The normal indicia of a life estate may be said to be these. A life estate is an estate in land which the devisee holds only for the duration of his or her life. A life tenant is entitled to possession of the property as long as the estate endures. Herd Est., 20 Fid. Rep. 2d. 149, 151 (O.C. Div. Allegh Co. 2000), annotated in Fiduciary Review, Sept. 2005. The life estate endures even though the life tenant chooses to live elsewhere and to convey his or her interest. Id. Consequently, a life estate is alienable. Ordinary repairs and maintenance are indicia of a life estate, as are the payment of taxes and mortgage payments, but the payment of rent is not. Id. at 151-152; accord, duPontEst., 13 Chester Co. Rep. 302, 316 (1965)(“obligations for taxes, repairs and other costs of maintenance [are] normally incidental to a life estate”). The burden of current carrying charges, including real estate taxes, interest on encumbrances and repairs is upon life tenant. See generally, 45 Dickenson Law Review 218. A life tenant is responsible for normal repairs but not for capital improvements. Worley v. Wolfe, 14 Fid. Rep. 2d. 104, 105 (O.C. Div. Adams Co. 1993). There are exceptions to these rules either based on the contrary intent of the creator of the interest, the agreement of the parties, if improvements were commenced before the life estate came into existence, or if improvements were made pursuant to government compulsion. Id. {citing RESTATEMENT OF PROPERTY, §139 (1936)), annotated in Fiduciary eview, May 1994.

By contrast, a right to occupy the residence is ordinarily a personal privilege or license, not a life estate in land. Davis Est, 16 Mont. Co. L.R. 523, 22 D. & C. 2d. 755, 760 (1960)(Opinion by Taxis, P.J.). The enjoyment of a right to occupy a residence depends upon the express condition that the person shall continue to reside there. Id. This right is not alienable, and is not liable to judgment and execution by the creditors of the holder of the privilege. Id. Whereas a life tenant pays no rent, the payment of rent by the holder of a right of occupancy is an appropriate incident. Id.

A life estate is valuable. A legal life tenant can lease his estate. Waldron v. Wahl, 286 Pa. 237, 133 A. 252 (1926). Upon the sale of the residence, a life tenant has been held entitled to receive the portion of the proceeds attributable to the value of her life estate. Hewitt Est., 554 Pa. 486, 721 A.2d 1082 (1998). The common law rule deems that an estate for life is equal in value to one-third of the whole. Paget Est., 15 Fid. Rep. 2d. 339 (O.C. Div. Mont. Co. 1995)(Judge Ott awarding the same to the widow free of trust). By contrast, the holder of a personal right of occupancy has no such valuable estate and has nothing to sell. The grant of the privilege is personal to him or her.

Whereas a life estate is subject to an inheritance tax, Kinert Est. v. Pa. Dept. of Rev., 693 A.2d 643 (Pa. Cmwlth. 1997), a right to occupy has been ruled not subject to inheritance tax. See Shipley Est., 45 Pa. Super. 570 (1910).

Again, all of this is in the absence of a contrary intention appearing in the instrument.

In looking closely at the Will, the court notes that some of its expressions more esemble the gift of a life estate and others more the gift of the personal privilege of a right f occupancy. The Respondent:

shall have the personal right {right of occupancy) to use and occupy {equally indicative and thus of no import) . . . rent free {more like a life estate) for the remainder of her life {used in both contexts) or such time as she vacates the property and takes up residence elsewhere, whichever event shall occur first {right of occupancy).

(Will, 5/8/14, at 1-2.)

The next paragraph continues:

Such right {right of occupancy) shall be subject to the condition that JULIA KOLIOPULOS shall be responsible for the timely payment of utilities {true for both life tenants and holders of right to occupy). However . . . my daughter, PAMELA MAY MILLER, shall be responsible for the timely payment of all real estate taxes and homeowners’ insurance and repairs and maintenance {ordinarily borne by a life tenant).

{Id. at 2.)

Decedent’s Will describes in his own words his intention to convey a “personal right” to Ms. Koliopulos. Also significant is that the decedent relieved his good friend of paying for anything other than utilities, that is to say, what was necessary for her personal consumption. On the other hand, he was explicit that the Respondent would not have any right of reimbursement for any expenditure that she made herself to the property. (Id.)

As mentioned, resort to other cases is only of modest utility in this area. However, this case is very much like Betz Est., 57 Lane. L.R. 315, 318 (1960). There, the testator said that if his son “desires to occupy my farm situated in Lancaster Township on the Wabank Road, whereon he now resides, he shall have the privilege to do so.” The court opined “[t]hus, he specifically described the petitioner’s interest in the farm as a ‘privilege’ of occupancy, effective only if he (his son Jacob) so desires. It has been held that a gift of this nature is only a privilege or license (of occupancy) and not the devise of a life estate.” Id. (citing Shipley’s Est., 45 Pa. Super. 570 (1910)). Similarly, a direction that testator’s wife “shall have the right to use and occupy for and during the full term of her natural life, free of all charges for taxes, repairs and other costs of maintenance,” was determined to be a grant of no more than a privilege to use and occupy the property in question, in duPont Est., 13 Ches. Co. Rep. 302 (1965). But see, La Rosa v. McVicker, 185 Pa. Super. 95, 137 A.2d 861 (1958).

From a careful reading and review of the provisions of the Will of the decedent as a whole, and the other evidence adduced at the hearing, it is clear to this court that the decedent’s intention was that the real estate owned by him at the time of his death, while devised to his daughter, remain available to his good friend for as long as she wished to reside there, or for her life, as the case might be.

When A Gift is Violative of Public Policy

Petitioner also argues that the court should not give effect to the occupation of the property by Ms. Koliopulos because the structure to which her apartment is attached violates the local building codes. Additionally, neither decedent nor she received a certificate of occupancy for the apartment where Respondent resides. Given the deteriorated condition of the mushroom building wall to which Ms. Koliopulos’ apartment abuts, Petitioner doubts that any certificate of occupancy could be acquired. From the evidence of record, Petitioner urges that the property cannot be repaired without demolishing the apartment and that any right of occupancy under the Will is unenforceable as against public policy.

The public policy of a state is established (1) by the constitution and laws of the state, or (2) by the judicial decisions of the courts of the state, or (3) by general consent. General consent is usually manifested in numbers (1) or (2). For example, there is a general consent that contracts entered into for the purpose of rewarding criminal acts where effectuating some illegal obj ect are void and the court will strike such contracts down. A bequest for the purpose of financing the forcible overthrow of the government would likewise be proscribed by general consent and by the courts. Ordinarily, the decision as to whether any acts or contracts or bequests or any other private arrangements contravene the recognized interests of society rests on the determination whether they conflict with the expressions or clear implications of the state’s organic law or its statutes or judicial decisions. Mohler’s Est., 343 Pa. 299, 22 A.2d 680 (1941). Under these principles, it has been held that a direction in a will to the executors that they destroy the dogs that the testatrix owned at her death is invalid as against public policy. Capers’ Est., 34 D. & C. 2d. 121 (1964). A provision in a will that the testatrix’s jewelry of considerable value be buried with her was void as contrary to public policy in that it would invite desecration of the grave. Meksras’ Est., 63 D. & C. 2d. 371 (1974). A bequest intended to induce a separation or divorce is void as against public policy. Morton’s Est., 13 D. & C. 2d. 148 (1957).

Petitioner relies on a number of decisions in support of her argument that the provision in question in favor of Ms. Koliopulos contravenes statute or public policy, including Borden v. Baldwin, 444 Pa. 577,584,281 A.2d 892 (1971). However, that case, like many in this area relied upon by Petitioner, see e.g., Wanamakers’Est, 335 Pa. 241, 6 A.2d 852 (1939), simply struck a provision for violating the rule against perpetuities. The provision in Devlin’s Trust Est., 284 Pa. 11, 130 A.2d 238 (1925) that conditioned a bequest upon one’s remaining an adherent to a particular church was declared to be void as against public policy. The will in Manners v. Phila. Library Co., 93 Pa. 165 (1880) contained the testamentary direction to publish illegal or immoral works and suffered the same fate. All of these cases may be distinguished from the present one because each testamentary direction was inherently objectionable. They were malum in se, unlawful in themselves and void on their face.

Such is not the case with the gift of a right of occupancy to Ms. Koliopulos. The bequest itself offends no social policy and Petitioner has given no authority to the contrary. This is not a municipal enforcement action, and the Township is not a party here. The decedent certainly had the right to give this privilege to his good friend.

Proper Administration and Distribution of Estate

Respondent opposes Petitioner’s request for a forced sale regardless of the building’s condition because, examining the Will as a whole, such action would be violative of the intent of the Testator, citing to Klingerman Est, 81 D. & C. 397 (1952). Respondent also argues that the provision in the PEF Code which forms the basis for Petitioner’s request for a judicial sale under these circumstances, 20 Pa. C.S. §3353, is unavailing. According to Ms. Koliopulos, a sale is only authorized under §3353 in instances where the governing instrument denies the personal representative the power of sale or where the court finds that such sale is desirable for the administration and distribution of the estate.

In Klingerman, supra, the executor filed a petition to sell a decedent’s house under the predecessor statute to 20 Pa. C.S.A. §3353. The house was occupied by the testator’s widow. It was alleged that the house was in significant disrepair and that funds were needed to pay estate expenses and costs. The court determined from the will that the widow had a right of occupancy only but nonetheless denied the petition to sell with the following observation:

The sole inquiry in these proceedings, in our opinion... is to decide the most desirable procedure for the proper administration and distribution of the estate, keeping in mind, however, the context of the will as a whole and the true intent of testator by the words used in the will. It is a matter of common knowledge that when the contents of a will are clear that the court need not resort to rules of construction. It is likewise a matter of well-established law that in order to determine the true intent of testator, the will as a whole must be considered.

Klingerman Est., at 399-402.

The court also noted:

We believe that because of the widow’s advanced years, and knowing how persons of this age are reluctant to leave their home and take up a new abode, that to sell this property and dispossess this widow would not be carrying out the wishes of testator as expressed in his will. Likewise, there is no immediate compelling reason for such action.

Id.

In fact, the executor was ordered to take out a mortgage to pay for certain administrative costs, bequests and minor repairs to the structure. Id.

The court agrees with the Petitioner only to this extent: all of us live under the law, and the day may come when, for you or I or any of us, an enforcement action may arrive and change the circumstances under which we currently dwell. But what is before the court is whether to grant the Executrix’s administrative request which would effectively dispossess the Respondent and deprive her of her gift. This the court will not do based on the interpretation of the decedent’s will and the circumstances of this case.

CONCLUSIONS OF LAW

1. Testator by will conferred on Respondent Koliopulos the personal right to occupy the real estate at 448 Calvary Rd. rent free for the remainder of her life or until such time as she resided elsewhere; this was not a life estate.

2. This testamentary gift was within the right of the testator to make.

3. The grant of this personal right of occupancy contravenes no positive rule of law nor is it against public policy.

4. No part of the proper administration and distribution of this estate require the sale of the property at the present time.


author: REICHLEY, J.,

text:
    Samar v. Grady

      C.P. of Lehigh County,
    No. 2015-C-1472

      Joshua Gildea, for plaintiff.

      David Dunn, for defendants.

      June 3, 2015
   REICHLEY, J.,

Plaintiff Richard Samar (Petitioner) has filed a civil action against Defendants Duane and Christine Grady (Respondents) asserting a nuisance and trespass action in connection with lighting illuminating Respondents’ in-ground pool and yard area which Petitioner avers brightly shines on his house late into the evening and renders him unable to sleep. After careful consideration of the petition and the testimony heard in this matter, the Court hereby grants Petitioner’s request for a preliminary injunction.

Findings of Fact

The parties are neighbors. Petitioner resides at 3411 School Street, Whitehall Township, Lehigh County, Pennsylvania. Respondents reside at 3014 N. Fourth Street, Whitehall Township, Lehigh County, Pennsylvania. The rear of Petitioner’s property is adjacent to the rear of Respondents’ property.

For a number of years, the parties have engaged in extensive litigation regarding Respondents’ encroachment upon a swale in the land which controls water runoff. This litigation involves Respondents’ construction of a pool in their back yard.

In 2014, the pool construction was completed. In conjunction with the swimming pool construction, Respondents installedfivebrickpillars, each approximately eight feet tall, and on top of those structures, Respondents installed pool lights. Respondent Duane Grady testified that the pool lights are five forty-watt lightbulbs encased in thirteen-inch, hammered glass housings located atop the brick structures. The glass housings allow light to pass through all 360 degrees.

Petitioner avers that from April 20, 2015 and almost every evening since that date, Respondents shined their pool lights onto Petitioner’s property during all hours of the night, keeping the lights on as late as 4:00 a.m. Petitioner testified that the lighting is bright enough to illuminate his yard and the side of his house. He further testified that the lights shine into his bedroom, keeping him up at night.

Petitioner contacted the Whitehall Township Police Department on approximately two occasions to report the brightness of the pool lights. The responding officers advised Petitioner to go to the magistrate and file a criminal complaint for harassment if Petitioner believed that to be the case.

Tim Kern, a neighbor of both parties, testified that the lighting from Respondents’ pool is bright enough to illuminate Petitioner’s property in the evening. Two photographs Kern took were entered as exhibits purporting to show the impact of the lights on Petitioner’s property.

Respondents testified and acknowledged that they have had their pool lights on as late as 4:00 a.m. as Petitioner averred. They explain that the lighting is a safely precaution to avoid liability in the event children or teens trespass on their property and use their pool late at night. They further explain that they have had their home burglarized twice, so they keep the lights on in the yard. However, Respondent Christine Grady indicated that there are additional lights in the yard that serve as a security measure to counteract potential burglars.

Respondents further testified that the pool lights are not bright enough to illuminate Petitioner’s home as he alleges. They indicated that they feel they are permitted to swim or otherwise use their pool at any time they wish without limitation. Respondents adamantly refused to agree to a time during which the lights would be turned off, and refused to agree to consistently dim the lights in the evenings.

Procedural History

Petitioner filed the petition seeking a preliminary injunction along with a civil complaint on May 7, 2015. The Court scheduled the matter for a hearing on May 19, 2015, but Respondents’ counsel requested that it be continued. The Court granted the continuance and listed the case for May 28, 2015. The Court took testimony and received evidence at that hearing and took the matter under advisement. Petitioner’s counsel submitted amemorandum of law at the close of the hearing. Respondents’ counsel submitted a responsive memorandum on June 1, 2015.

This Opinion follows.

Discussion

Petitioner is seeking a preliminary injunction to require Respondents to turn off their pool lights between the hours of 10:00 p.m. and 8:00 a.m. and to direct Respondents to prevent the light from shining on Petitioner’s house at any other time. There are two issues before the Court at this time: Petitioner’s request for a preliminary injunction and Respondents’ argument that Petitioner has not satisfied a preliminary procedural requirement under the Pennsylvania Rules of Civil Procedure. These issues are discussed in reverse order.

Procedural Requirements

Under Pa.R.C.P. 1531, for a Court to issue a preliminary injunction, the plaintiff is required to filed “a bond in an amount fixed and with security approved by the court, naming the Commonwealth as obligee, conditioned that if the injunction is dissolved because improperly granted or for failure to hold a hearing, the plaintiff shall pay to any person injured all damages sustained by reason of granting the injunction and all legally taxable costs and fees.” Pa.R.C.P. 1531(b)(1). “This requirement is mandatory and an appellate court must invalidate a preliminary injunction if a bond is not filed by the plaintiff.” Berger By & Through Berger v. W. Jefferson Hill Sch. Dist., 669 A.2d 1084, 1086 (Pa. Cmwlth. 1995) (citation omitted).

The proper amount for a bond must be determined on a case-by-case basis. Greene Cnty. Citizens United by Cumpston v. Greene Cnty. Solid Waste Auth., 636 A.2d 1278, 1281 (Pa.Cmwlth. 1994).

[Tjrial courts should require a bond which would cover damages that are reasonably foreseeable, rather than a bond that would cover all damages, because the nature of a preliminary injunction hearing makes a court’s primary duty the consideration of whether to grant an injunction; the amount of potential damages to the party whose conduct is sought to be enjoined is not the court’s primary concern.
To determine the proper amount of bond, courts should balance the equities involved.... [I]n seeking to balance the equities [, a court] might consider such factors as the inability of a plaintiff to provide sufficient security where damages could be great.

Id. at 1281 (citations and internal quotation marks omitted).

In this case, the Court hereby directs Petitioner to post security in the amount of $1,500.00. This is an appropriate amount upon consideration of the equities at issue for both sides and counsel fees that may be incurred.

Preliminary Injunction

The standard for granting a preliminary injunction is well-established:

An injunction that commands the performance of an affirmative act, a mandatory injunction, is the rarest form of injunctive relief and is often described as an extreme remedy. A petitioner seeking mandatory injunctive relief must show that: (1) an injunction is necessary to prevent irreparable harm that cannot be adequately compensated by damages; (2) greater injury would result from refusing an injunction than from granting it; (3) an injunction will restore the status quo between the parties; and (4) the petitioner’s right to relief is clear, and success on the merits is likely. For a preliminary injunction to issue, every one of these prerequisites must be established; if the petitioner fails to establish any one of them, there is no need to address the others.

Hoffman v. Steel Valley Sch. Dist., 107 A.3d 288, 290-91 (Pa. Cm with. 2015) (citations and internal quotation marks omitted).

Courts also require the party seeking the injunction to show that it is reasonably suited to abate the offending activity. Greenmoor, Inc. v. Burchick Const. Co., Inc., 908 A.2d 310, 313 (Pa. Super. 2006). Lastly, the party seeking an injunction must show that a preliminary injunction will not adversely affect the public interest. Id.

It is further essential that the activity a petitioner is seeking to restrain is actionable at law. Milicic v. Basketball Marketing Co., 857 A.2d 689, 696 (Pa. Super. 2004) (citing Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1283 (Pa. 1992)). An activity is actionable if it constitutes a breach of a duty imposed by statutory or common law. Id.

Petitioner argues that Respondents’ activity with respect to the pool lights is actionable under the common law tort of private nuisance. Pennsylvania courts utilize the definition of private nuisance located in the Restatement (Second) of Torts. Waschak v. Moffat, 109 A.2d 310 (Pa. 1954). Private nuisances are “nontrespassory invasion^] of another’s interest in the private use and enjoyment of land.” Restatement Torts, 2d, § 82ID.

Section 822 of the Restatement sets forth the elements of liability for private nuisance as follows:

One is subject to liability for private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either:
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

Id. § 822; Diess v. Pennsylvania Dept. of Transportation, 935 A.2d 895, 905 (Pa.Cmwlth. 2007).

In evaluating a private nuisance claim, the key question is whether one person has impaired another person’s private right of use or enjoyment of their land. The Restatement indicates that “any one of the types of conduct that serve in general as the bases for all tort liability may invade a person’s private right of use or enjoyment of their land.” A defendant may be liable for the invasion of such use and enjoyment when the interference is intentional and unreasonable or the result of negligent, reckless or abnormally dangerous conduct.

Diess, 935 A.2d at 905 (quoting Restatement (Second) of Torts § 822).

Utilizing these legal standards, it is prudent to discuss whether Petitioner satisfied each of the four requirements for a preliminary injunction to issue.

Necessity of an injunction to prevent irreparable harm that cannot be adequately compensated by damages

The first requirement is that a petitioner demonstrates that he or she will suffer irreparable harm if the injunction is not issued. “In order to meet this burden, a plaintiff must present concrete evidence demonstrating actual proof of irreparable harm. Greenmoor, Inc., 908 A.2d at 314 (citation omitted). This harm cannot be speculative. Id. “Moreover, for purposes of a preliminary injunction the claimed harm must be irreversible before it will be deemed irreparable.” Id.

In this case, the harm Petitioner avers he will suffer is inability to sleep at night due to the lights from Respondents ’ pool area shining in his bedroom. Respondents argue that this should not be an issue because the same lights do not impact upon their sleep. Respondent Christine Grady testified that she has light diffusing curtains in her bedroom.

Petitioner refers the Court to persuasive authority from Montgomery County, Shiban v. Lightcap, 2 Pa. D.&C.3d 638 (C.P. Montgomery, Jul. 27, 1977), wherein the court rejected an argument that a person whose sleep was being disrupted by a light installed by his neighbor could remedy the situation by using window shades. Id. at 640. The court cited the principle that it is more equitable to require the party causing a problem to act to avoid it. Id.

The Restatement (Second) of Torts also offers guidance in determining the gravity of the harm being assessed in a private nuisance context by explaining “[t]he gravity of the harm from noises that disturb a person’s sleep, for example, is ordinarily much greater when the noises occur at night than it is when the noises occur in the daytime.” Restatement (Second) of Torts § 827 cmt. b (1979).

Under this standard, the Court finds that money damages would not adequately compensate Petitioner for the harm alleged. Petitioner testified that the light emanating from Respondents’ residence was bright enough to allow him to read without the aid of another light source. This light prevents him from sleeping at night when Respondents have their pool lights turned on. The Court finds that the deprivation of sleep is not reasonably compensated by money damages, and therefore finds that Petitioner has satisfied the irreparable harm requirement.

Whether greater injury would result from refusing an injunction than from granting it

The Court must consider the relative harm inherent in granting the injunction against the harm in refusing it. Both Respondents testified at the hearing about their interest in using their pool whenever they wish. They further testified that as a result of two prior burglary incidents, they prefer to illuminate their yard at night. However, based on the testimony, this fear of criminal activity around their home only occurred after a breakdown of settlement discussions in the other litigation with Petitioner.

There is an equitable balance that must be considered in this case. Petitioner has an equitable interest in being able to sleep in his own home without interference. Likewise, Respondents have an equitable interest in illuminating their back yard. Like the Montgomery County court in Shiban, the most equitable remedy is to require Respondents to install opaque caps or shields behind their lights so that the lights only shine on their own property. The potential that children will utilize Respondents’ pool at night and get injured or that Respondents’ home would be burglarized is speculative and hypothetical; by contrast, the evidence demonstrated that the light is at least sufficient to interrupt Petitioner’s sleep. Redirection of the light would remedy that issue without impinging upon Respondents’ rights to illuminate their yard and pool area.

Whether an injunction will restore the status quo between the parties

Because the parties’ other pending litigation is currently assigned to this Judge, the Court is acutely aware of the degree of animosity between the parties. That notwithstanding, this is the first instance where either side has complained about the other party taking actions which impact upon his or her sleep. Requiring Respondents to block the light from Petitioner’s property would restore the status quo for these sides.

Whether the petitioner’s right to relief is clear

A party’s right to relief is clear where the party is likely to prevail on the merits of the permanent injunction. The Woods at Wayne Homeowners Ass’n v. Gambone Bros. Cosnt. Co., 893 A.2d 196 (Pa. Cmwlth. 2006). As noted above, an action for private nuisance requires proof that a defendant engaged in conduct which legally causes an invasion of another’s interest in the private use and enjoyment of his land and that invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under negligent or reckless conduct liability principles. Restatement (Second) of Torts, § 822; Kembel v. Schlegel, 478 A.2d 11, 14-15 (Pa. Super. 1984).

A plaintiff must also demonstrate that he incurred significant harm, which is “harm of importance, involving more than slight inconvenience or petty annoyance.” Restatement (Second) of Torts, § 82 IF cmt. c. “[Ijnthe case of a private nuisance, there must be a real and appreciable interference with the plaintiff’s use or enjoyment of his land before he can have a cause of action.” Id. In determining whether personal discomfort or annoyance rises to the level of significant harm, the Restatement offers the guidance that courts should consider whether a normal person living in the community would regard the invasion as “definitely offensive, seriously annoying[,] or intolerable.” Id.

In this case, the Court finds that Petitioner’s right to relief is clear under the standards established for a preliminary injunction. Two photographs were submitted at the hearing in this case, both of which were taken by Mr. Kern, the parties’ neighbor. Respondents contest the legitimacy of one of these photographs, which purports to show Petitioner’s home illuminated at night by the lights from Respondents’ yard. The other photograph shows the lights at issue, and it clearly depicts a series of five lights atop brick pillars, all of which are above the height of a fence between the parties’ yards.

The lights shine 360 degrees, which means they illuminate both Respondents’ yard and Petitioner’s yard. Respondents maintain that these lights are sufficient to provide light to their pool and yard in order to deter potential burglars. Petitioner testified that they are so bright as to impact upon his sleep at night. Even discounting the photograph Respondents challenge is inaccurate or digitally manipulated, the uncontested photograph and Respondents’ own testimony indicates that there are five lights bright enough to provide sufficient lighting in Respondents’ yard. This amount of light would equally sufficiently illuminate Petitioner’s yard unabated due to the 360 degree hammered glass casings. Accordingly, Petitioner has demonstrated a likelihood of success on the merits of his nuisance claim.

Whether an injunction is reasonably suited to abate the offending activity

“Pennsylvania courts sitting in equity have jurisdiction to prevent the continuance of acts prejudicial to the interest of individual rights.” The York Grp., Inc. v. Yorktowne Caskets, Inc., 924 A.2d 1234, 1244 (Pa. Super. 2007) (citation omitted). In this case, an injunction is appropriate to abate the offending activity. Respondents’ lights shining on Petitioner’s property is the offending activity at issue. By virtue of these lights, Petitioner avers he is unable to sleep at night. The Court finds that such activity constitutes an act prejudicial to Petitioner’s rights, and such an activity is subject to the Court’s authority to issue an injunction. Requiring Respondents to cover the lights on Petitioner’s side of the property is a reasonable remedy to the situation and is appropriate as a means of abating the offending activity. Accordingly, this requirement is satisfied.

The preliminary injunction will not adversely affect the public interest

There is no evidence of record that the public interest is implicated in this case. Consequently, this factor is deemed satisfied. Id. at 1245 (factor is satisfied by the absence of evidence that a preliminary injunction will harm the public interest).

Conclusion

Based on the foregoing analysis, the Court finds that a preliminary injunction is the appropriate mechanism to abate the lighting conditions about which Petitioner is complaining. Petitioner has satisfied his burden of demonstrating the requisite elements for the issuance of a preliminary injunction.

In balancing the equities, the Court grants the specific relief to require Respondents to install opaque covers or barriers on all of their brick pillars between the lights and Petitioner’s property. Respondents must install such covers or barriers at their own expense. However, the Court will not preclude Respondents from keeping their lights on throughout the night after installation of the opaque covers or barriers.

Accordingly, Petitioner’s Petition for a Preliminary Injunction is GRANTED.

ORDER

AND NOW, this day of June, 2015, upon consideration of Plaintiff’s Petition for a Preliminary Injunction, filed May 8, 2015, and after hearing held thereon on May 28, 2015 at which time all parties were present with counsel,

IT IS ORDERED that said petition is GRANTED for the reasons set forth in the accompanying Memorandum Opinion. Defendants are directed to install opaque covers or barriers which block the pool lights atop their brick pillars from illuminating upon Plaintiff’s residence. Said installation of the opaque covers or barriers is to occur within twenty (20) days. The covers or barriers must block the lights on the side facing Petitioner’s property. Counsel for Defendants is directed to provide the Court with proof of compliance. Such installation shall be at Defendants’ expense.

IT IS FURTHER ORDERED that Petitioner is required to post security in the amount of $1,500.00 in accordance with Pa.R.C.P. 1531(b).

      . Lehigh County Case No. 2010-C-2050.


author: WILLIAMSON, J.,

text:
    Rud v. Haleem

      C.P. of Monroe County,
    No. 1840 CIVIL 2015
    June 10, 2015
   WILLIAMSON, J.,

This matter comes before us on Preliminary Objections to Plaintiffs’ Complaint filed by Defendant Deen Haleem on April 17, 2015. Thomas Rud and Cindy Walker (hereafter “Plaintiffs”) filed the underlying Complaint on March 11, 2015. Plaintiffs filed a Brief Contra Defendant Deen Haleem’s Preliminary Objections on May 26, 2015.

Background

On September 2, 2014, Plaintiffs attended a real estate closing in Monroe County at which time Plaintiffs purchased from Defendants property located at 74 Douglas Drive, Covington Township, Lackawanna County, Pennsylvania, for a purchase price of $386,500. Immediately prior to closing, Plaintiffs performed a pre-closing inspection and discovered that argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Defendant Deen Haleem’s first preliminary objection is that Plaintiffs’ Complaint is in violation of Pa.R.C.P. 1028(a)(6) because this claim arises out of an Agreement of Sale which contains a clause for alternative dispute resolution which states that mediation must take place before any legal action is taken. Plaintiffs argue in response that this cause of action arises out of the oral agreement between the parties which is separate from the written Agreement of Sale.

In Kravitz v. Mudry, the Superior Court of Pennsylvania affirmed a holding that a purchaser’s waiver of the right to refuse to make settlement and accept a deed if vendor failed to properly construct a house was valid consideration for oral agreement by vendor to make necessary repairs after settlement. Kravitz v. Mudry, 189 A.2d 311 (Pa. Super. 1963). In that case, the two parties entered into a written agreement of sale for a house which was under construction. Id. The plaintiffs in that case alleged that they were induced into completing settlement by an oral agreement in which the defendant agreed to remedy certain defects in the house after closing. Id. The court in that case stated:
“If the builder or vendor failed to properly construct the house the purchaser could refuse to accept the deed or to make settlement. Under the circumstances the waiver of this right to refuse to make settlement furnishes a valid consideration for the agreement by the vendor to make the necessary repairs after settlement. Thus, the cause of action is based on an entirely separate agreement, distinct from the agreement of sale. Since this separate agreement is supported by consideration it is legally enforceable and evidence to establish this agreement is clearly admissible.

Id. at 312.

Here, as in Kravitz, Plaintiffs allege that they were induced into completing settlement of the purchase based on an oral agreement in which Defendants agreed to remedy a defect in the house after closing. Unlike Kravitz, the house in this case was not under construction, but the purchaser still had a right to refuse to make settlement if there were defects in the house discovered during a walk through. The consideration in this case would be waiving that right to refuse to go through with settlement after Plaintiffs discovered the defect in exchange for Defendants remedying the defect after closing. If the alleged oral agreement is found to be credible, the oral agreement would be a separate agreement supported by consideration and legally enforceable.

Also, Plaintiffs allege that Defendants sent over an HVAC technician to attempt to remedy the defect. If this is found to be true, this action would be implicit acknowledgment of an oral agreement between the two parties. Further, Paragraph 18 of the Agreement of Sale sets forth the guidelines to follow for both parties if defects are discovered prior to closing. If Defendants did send an HVAC technician to attempt to remedy the defect in the house, rather than follow the parameters set forth in the Agreement of Sale, this would also be implicit acknowledgment that the oral agreement was meant to be separate from the written Agreement of Sale.

Defendant DeenHaleem’s second preliminary objection is that Plaintiffs’ Complaint is in violation of Pa.R.C.P. 1028(a)(1) for improper venue. Defendant Deen Haleem also cites Pa.R.C.P. 1006(a)(2) and argues that the property is located in Lackawanna County which would make that county the proper venue. Defendant Deen Haleem further states that Monroe County is an improper venue because the claim of unjust enrichment is for equitable relief and the property at issue is located in Lackawanna County. Plaintiffs argue in response that this cause of action arises out of the oral agreement which took place in Monroe County and that this claim is for legal relief, not equitable relief.

As to venue, an action against an individual may be brought in and only in a county in which;

(1) The individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, or
(2) The property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.

Pa.R.C.P. 1006.

In Meehan v. Cheltenham Twp., the Supreme Court of Pennsylvania analyzed a claim requesting money damages based on unjust enrichment and stated that; “Law courts can and do apply equitable principles so long as the remedy sought is one within their power to grant. Since law courts can give the remedy of money damages, an adequate remedy existed at law in the form of an action in assumpsit and equity therefore had no jurisdiction.” Meehan v. Cheltenham Twp., 189 A.2d 593, 595 (Pa. 1963).

As this court discussed above, the cause of action for this claim arises out of the alleged oral agreement between the parties. The oral agreement allegedly took place in Monroe County which would make Monroe County the venue in which this particular cause of action arose. Thus, Monroe County is a proper venue for these proceedings. Further, as in Meehan, the unjust enrichment claim in this case is for money damages which is a legal remedy. Since this is not a claim for equitable relief, it is not necessary that the venue be the county in which the property at issue is located.

Defendant Deen Haleem’s third preliminary objection is that Plaintiffs’ Complaint is in violation of Pa.R.C.P. 1028(a)(2) for failure to conform to law or rule of court because Plaintiffs failed to attach the real estate contract between the parties. As we stated above, this cause of action arises out of the alleged separate oral agreement between the parties and not any written contract. Therefore, Plaintiffs are not required to attach the real estate contract between the parties to their Complaint.

Conclusion

Since this court finds that the cause of action in this case arises out of the alleged oral agreement between the two parties, and not out of the written Agreement of Sale, the provision in the Agreement of Sale stating that the parties would mediate any dispute pursuant to the Agreement of Sale is inapplicable. Also, since the oral agreement allegedly took place in Monroe County, Monroe County is a proper venue for this claim. Further, Plaintiffs are not required to attach any written contracts to their Complaint because the cause of action arises out of an oral agreement.

ORDER

AND NOW, this 10th day of June, 2015, upon consideration of the Preliminary Objections filed by Defendant Deen Haleem, Defendant Deen Haleem’s Preliminary Objections are DENIED.


text:
    Patel v. Dave

      C.P. of Monroe County,
    No. 11372 CIVIL 2013

      John Molnar, for plaintiff.

      Kathleen E. Walters, for defendants.
    March 4, 2015
   WILLIAMSON, J.,

Plaintiff, as Administratrix of the Estate of Prafulichandra S. Patel, (hereafter “Estate”), filed a Complaint seeking ejectment, replevin, and damages for breach of contract. Defendants filed a counterclaim for intentional misrepresentation. The matter involves real property with a motel on it, that the Decedent, Prafulichandra S. Patel, agreed to sell to Sureschandra G. Dave. Mr. Patel died before suit was instituted, and the Estate became the Plaintiff. Defendant Krishna A. Dave was also a named party in the transaction. A hearing was held on the parties’ claims on January 27, 2015.

FINDINGS OF FACT

1. Prafullchandra S. Patel (hereafter “Decedent”) was the owner of real property located on Route 115, Ross Township, Monroe County, Pennsylvania known as the Gateway Motel (hereafter “motel property”).

2. In or about June 17, 2010, Decedent entered into an agreement of sale (hereafter “AOS”) to sell the motel property to Sureschandra G. Dave and his daughter-in-law, Krishna A. Dave.

3. Ashutosh Dave, the son of Sureschandra G. Dave, was involved in the sale negotiations with his father and the Decedent.

4. Jaesh Patel, the son-in-law of Prafullchandra S. Patel, was also involved in some of the negotiations between the parties.

5. The Decedent worked out a purchase price, interest rate and owner financing on the sale of the property with Mr. Dave and his son.

6. Jaesh Patel suggested to the Decedent that he structure the sale as a Lease/Option to Purchase, but, the Defendants objected, so a compromise was reached for an installment sale with a signed quit-claim deed held in case of default.

7. The purchase price was $305,000, with $105,000 paid in advance and the balance of $200,000 to be paid in monthly installments of principal and interest at 7% amortized over ten (10) years.

8. The parties agreed the Defendants would sign a mortgage and note and Decedent would sign a deed conveying title to the motel property in favor of the Defendants, all of which were to be held in escrow until the Defendants made thirty-six (36) monthly payments.

9. The Deed and Mortgage were to be held in escrow by the Decedent’s attorney, C. Daniel Higgins, Sr., until the above payments were completed, at which time they would be recorded.

10. The AOS, Deed, Mortgage, Note and Quit-Claim Deed were all drafted by Attorney Higgins.

11. Attorney Higgins retained the Deed, Mortgage and Quit-Claim Deed signed by the parties.

12. A settlement sheet was prepared by Commonwealth Land Abstract Company and a closing was held at their office that was shared with Attorney Higgins on June 17, 2010.

13. The settlement sheet listed payment of attorney fees to Attorney Higgins by the Seller (Decedent).

14. Defendants chose not to seek their own legal counsel in the transaction.

15. Negotiations as to the sale were between the parties.

16. The transaction closed in June 2010 and Defendants took possession of the motel property at that time.

17. In November of 2012, the motel suffered damage as the result of a storm.

18. Prior to the storm damage, the parties agreed to an Amendment to the Agreement of Sale reducing the amount of monthly payments beginning March 2012, by Agreement signed October 18, 2012.

19. Defendants stopped making payments in January 2013.

20. The Decedent died in January 2013.

21. Notice of default was sent by the Decedent’s attorney to the Defendants by letter dated May 1, 2013.

22. In addition to missing monthly payments, the Defendants did not provide proof of insurance as required and failed to pay real estate taxes for 2012, 2013 and 2014.

23. An estate was raised for the Decedent and Shantiben P. Patel was appointed Administratrix.

24. By letter dated August 1, 2013 from Attorney Higgins to the Defendants, the Defendants were advised the Quit-Claim Deed was going to be recorded due to their default, and that they had twenty (20) days to vacate the motel property.

25. On or about October 18, 2013, Defendants obtained a bank check for $4,000 payable to Shantiben Patel to be applied to the balance due at that time, but the check was not accepted as it would not have covered the full outstanding balance.

26. In or about June 5, 2014, the Defendants received a check from Brethren Mutual payable to Suresh G. Dave and Gateway Motel and Prafullchandra Patel and Shantiben P. Patel for insurance proceeds from the November 2012 storm damage.

27. The insurance proceeds check has remained uncashed and in the possession of the Defendants.

28. The Quit-Claim Deed in favor of Prafullchandra S. Patel was recorded on July 23, 2013 at Record Book 2424 Page 1144.

29. The Defendants remain in possession of the motel property.

DISCUSSION

The Estate seeks an order in ejectment to remove the Defendants from the premises. The Estate also seeks an order in replevin to receive the insurance proceeds check and an award of damages for breach of contract. The Defendants have raised issues in their New Matter of misrepresentations as to value of the property and prior income from the business, failure to allege a breach of contract as a Mortgage and Note were signed, and unconscionability in recording the Quit Claim Deed due to the amount of the payments made by the Defendants. The Defendants also allege damages of their own in a CounterClaim as a result of misrepresentations by the Decedent.

Plaintiff first seeks equitable relief for the ejectment of the Defendants from the motel property. We find the Defendants failed to perform under the terms of the Agreement of Sale. As such, they were in default of the Agreement and one of the remedies for the Plaintiff/ Decedent was to file the Quit-Claim Deed previously signed by the Defendants, giving Plaintiff/Decedent clear title to the motel property. Legal title remained recorded in Plaintiff/Decedent’s name, with the Defendants having an equitable interest pursuant to terms of the agreement of sale. The filing of the Quit-Claim Deed in the event of default was an assurance to Plaintiff/Decedent he would have clear title in the event of a default. The default by the Defendants also ended their equitable interest. Under the terms of the Agreement of Sale, and filing of the Quit-Claim Deed, the Defendants no longer had a right to occupy the motel property. Therefore, the request for ejectment will be granted.

There are certain defenses to equitable relief including unconscionability of contract, laches (delay), unclean hands of the Plaintiff, and estoppel. The Defendant contends Plaintiff’s request for ejectment should be barred due to unconscionability and/or unclean hands. Specifically, Defendants argue it is unconscionable for them to vacate the property after making payments in excess of $170,000 to the Plaintiff. Defendants further argue Plaintiff misrepresented the true value of the property and the income of the motel business on the property.

We do not find the result to be unconscionable. The Defendants negotiated with the Decedent on a price and terms of sale. There was no evidence that Defendants failed to understand the terms of their bargain. There was no evidence that the Defendants failed to understand the risks of any default. Although the Defendants made a sizeable down payment, and made additional payments thereafter, the amount paid does not automatically make the outcome unconscionable, nor are the terms of the bargain made unfair. It is no different than if a deed were immediately exchanged and recorded to the Defendants and a mortgage recorded for seller financing; except that in Monroe County, Pennsylvania it takes a long time to file and complete a mortgage foreclosure proceeding, leaving a seller out of possession following a default that much longer. The terms of this transaction were not much different than many seller financed sales in Monroe County, Pennsylvania.

Furthermore, the Defendants could have retained their own attorney and appraisal regarding the property. There was no evidence they were forced to proceed as they did. It appears extensive negotiations took place back and forth between the parties. Also, the Defendant’s son, who was involved in the negotiations, had previously purchased a gas station and used his own attorney. The Defendants contend Attorney Higgins represented both parties in the matter which was to their detriment. Again, Defendants appeared savvy enough to know they could retain their own attorney to review the terms of the transaction.

There also was no evidence that Attorney Higgins represented to the Defendants he was their attorney, or that he acted on their behalf or advised that they did not need their own legal counsel. The only evidence came from Defendants’ testimony which included the Defendant’s son who simply stated that Plaintiff suggested the parties share the cost of one attorney. However, the settlement sheet indicates that only the seller was billed for Attorney Higgin’s representation. There was no evidence Attorney Higgins accepted any payment from the Defendants or mislead the Defendants in any way.

The Defendants also claim the Decedent acted improperly by representing that an appraisal was done which supported the sale price. Again, the Defendants appeared savvy enough to request their own appraisal, or have an expert review the income and expenses purported by the Decedent. There was no evidence supporting Defendant’s contention that Decedent acted with unclean hands or in some other manner that was a defense to the ejectment claim.

It is also noted that the Plaintiff tried to work with the Defendants, and lowered the monthly payment at the request of the Defendants. Yet, the Defendants failed to make payments thereafter, failed to pay the taxes due, or provide proof of insurance.

Defendants also contended at trial that they tried to make a payment of $4,000 and offered to obtain another $4,000 to pay the Plaintiff once they were in default. However, the amount was not enough to cure the default, and there were still unpaid taxes, putting the property at risk for a tax sale. The Defendants also suffered damages to some of the motel units due to a storm. They produced a copy of an insurance check payable to them and Decedent and Decedent’s wife jointly for the damage. Defendants allege the Decedent’s failure to sign the check prevented them from using the proceeds to repair the units. However, the Defendants were in default on payments to the Decedent at the time and there was no legal requirement he endorse the check to the Defendants. Under the circumstances, we can understand the reluctance of the Decedent to do so. Therefore, none of the evidence supported a defense to the request in equity for ejectment.

The Plaintiff has also requested damages for breach of contract. The Defendant asserts that there can be no breach of the agreement of sale because a Mortgage and Note were executed. Defendant contends the terms of the Agreement of Sale merged into the Mortgage and Note. Generally, an agreement of sale merges into the deed, and no recovery can be made on the earlier agreements. Perrige v. Horning, 440 Pa. Super. 31, 564 A.2d 1183 (1995). However, delivery of the deed is necessary to render it legally operative. Herr v. Bard, 355 Pa. 578, 50 A.2d 280 (1947). Conditional delivery of a deed or delivery into escrow is not delivery to a buyer. Stephenson v. Butts, 187 Pa. Super. 55, 142 A.2d 319 (1958). Here, the deed to the Defendants was held in escrow by Attorney Higgins, pursuant to the terms of the Agreement of Sale. Therefore, there was no delivery of the deed to the Defendants and no merger of the earlier agreement of sale. See also Atiyeh v. Bear, 456 Pa. Super. 548, 690 A.2d 1245 (1997).

This same analysis applies to the Mortgage and Note. The Note evidenced the payment terms required by the Agreement of Sale. The mortgage was collateral for the payment, but remained unrecorded per the parties’ Agreement of Sale terms. An unrecorded mortgage has no bearing on the issue at hand; namely failure to make payments required by the Agreement of Sale and the Agreement of Sale controls. See Turk v. D. Katz & Sons, Inc., 254 Pa. Super. 177, 385 A.2d 583 (1978); Chrysler First Bus. Credit Corp. v. Gourniak, 411 Pa. Super. 259, 601 A.2d 338 (1992). Therefore, a suit for breach of contract alleging a breach of the agreement of sale between the parties is a proper action.

The remedy requested for the breach of contract was the missed payments while Defendants were in possession of the property, and the unpaid real estate taxes. The payments due were $1,656.91 from February 17, 2013 to the date of hearing on January 27, 2015, and now February 17, 2015 as well. This is 24 monthly payments at $1,656.91 for a total of $39,765.84. In addition, the Defendants owe Plaintiff for unpaid real estate taxes as follows:

$8,529.28 for 2012 (paid by Plaintiff);
$7,764.06 for 2013 (unpaid);
$ 988.24 for 2014 County and Township (unpaid);
$6,418.81 for 2014 school (unpaid);

TOTAL: $23,700.39

The total owing for unpaid payments and taxes under the Agreement of Sale is $63,466.23. We note there was no evidence of cost of insurance to the Plaintiff due to any cancellation of or lack of insurance on the motel property by the Defendants. Therefore, we find the amount of damages for breach of the agreement of sale is $63,466.23.

The Defendants next claim they were fraudulently induced to enter into the Agreement of Sale due to misrepresentations made by the Decedent. To prove a claim of fraudulent misrepresentation, a party must show 1) a representation, 2) which is material to the transaction, 3) made falsely, with knowledge of the falsity or recklessness as to whether it is true or false, 4) with the intent of misleading another into relying on it, 5) justifiable reliance on the misrepresentation, and 6) the injury suffered was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 729 A.2d 555 (1999); Blumenstock v. Gibson, 2002 Pa. Super. 339, 811 A.3d 1029 (Pa. Super. 2002).

Defendants alleged the Decedent misrepresented the value of the motel property and the annual income generated by the motel business. The Defendants stated they relied on the Decedent’s representation that Decedent obtained an appraisal to the property that supported the purchase price. There was no evidence presented as to the amount of the alleged appraisal. There was no evidence presented that the property and business thereon were not worth what was represented to the Defendants or what they ultimately agreed to pay the Decedent. The Defendants negotiated a reduction in the monthly payments due to difficult economic circumstances, but they did not seek a reduction in the purchase price at that time, nor did they object to the purchase price as being unfair, until this suit was filed.

There also was no evidence presented that the gross annual income was misrepresented. The Defendants failed to produce any evidence of the income and expenses that were represented to them by the Decedent. Defendants provided a hand-written log (Defendants’ Exh. 4) of the alleged income and expenses while they owned the property, but no other records. The Defendants also admitted to a reduced income due to storm damage incurred in November 2012 that kept seven (7) rooms from being used. The Defendants also testified that other rooms were damaged by a broken water pipe. These circumstances could be the reason for low figures in 2012, 2013 and 2014. Therefore, we find the Defendants were not convincing in their assertion that the income and expenses were misrepresented to them prior to purchase.

We also note that the Defendants did nothing to investigate the income and expenses. The Defendant’s son was actively involved in negotiating the terms of the purchase. The Defendant’s son previously purchased a gas station business. The Defendants do not appear to be so naive as to not understand the bargain of their Agreement. It is not plausible that the Defendants were duped or relied on misrepresentation. The Defendants may have made a business deal that turned out poorly for them, but there is no evidence that they were fraudulently induced to do so.

The final claim of the Plaintiff was an action in replevin to obtain the insurance proceeds check paid for the damage to the motel units. The sole issue in replevin is one of title and right to possession. 42 Pa. C.S.A. §323. The parties’ interests in insurance proceeds are determined by what insurable interests the parties had in the real estate on the date of loss. See Gerhard v. Welker, 40 D & C 4th 557 (Comm. PI. 1997). Whether or not the Plaintiff had a right to possession of the insurance proceeds check retained by the Defendants is dependent upon what interest the Plaintiff had in the motel property at the time of the loss.

Here, Plaintiff held legal title to the real property at the date of loss, subject to Defendants’ equitable interest pursuant to the Agreement of Sale. That Agreement of Sale had a Risk of Loss clause requiring the Buyer (Defendants) to obtain insurance coverage and name Seller (Plaintiff) as an additional insured. The funds from the insurance, being $23,873.32 were for a loss due to damage to the motel units in November 2012. At the time, the Plaintiff had an interest as titled owner to the real property. Furthermore, the Plaintiff held an insurable interest as set forth in the Agreement of Sale. As such, the Seller had a controlling interest in the insurance proceeds. The Plaintiff could expect that the funds go toward repairing the premises or to seller on account of monies owed under the Agreement of Sale, which were set forth in the Note. Upon default by the Defendants under the Agreement of Sale, the Plaintiff, as owner of the real property, could eject Defendants from the property. We find the Plaintiff, as titled owner of the real property, with an insurable interest, had the interest in the real property, under all of the resulting circumstances, to show entitlement to the insurance proceeds. As the Defendants have retained the check for the insurance proceeds, we will order that the action in replevin be granted, and Defendants shall sign and deliver said check to the Plaintiff, as owner of the real property.

We do not find support for the Defendants’ CounterClaim based upon the record. Therefore, the CounterClaim will be dismissed.

DECREE

AND NOW, this 4th day of March, 2015, following a Hearing/Non-Jury Trial held January 27, 2015, it is ORDERED and DECREED as follows:

1. Plaintiff’s claim for ejectment is GRANTED and Defendants shall have thirty (30) days to vacate the real property known as 213 Emerson Road, Old Route 115, Ross Township, Monroe County, Pennsylvania known as the Gateway Motel and related premises;

2. This Court finds in favor of Plaintiff and against Defendants for breach of contract in the amount of $63,466.23;

3. The Plaintiff’s claim in Replevin is GRANTED and the Defendants shall endorse and deliver the insurance proceeds check from Brethren Mutual Insurance in the amount of $23,873.32 within thirty (30) days.

4. Defendants’ Counter-Claim is DISMISSED.

      . The Complaint and subsequent documents of both parties spell Defendant’s name Sureschandra G. Dave, but the Agreement of Sale spells Defendant’s first name as Sureshchandra, and we will cite to the spelling in the Complaint.

      . The settlement sheet did include a charge to the Defendants for preparation of a Mortgage and Note, a customary cost of a Buyer in this type of transaction, but not an indication the attorney represented the Buyers.

      . This was the negotiated reduction of payment from the original agreed payment amount of $2,322.17, together with a late payment penalty.