congrats - breach - damages

Ericcson Properties v. Bulle Construction

Pa. Superior Court  1-10-25

https://www.pacourts.us/assets/opinions/Superior/out/J-A14031-23m%20-%20106233392294097123.pdf?cb=1

A breach of contract entitles the non-breaching party to damages. “The central principle of the law regarding contractual damages is that the non-breaching party should be placed in the position he or she would have been in absent breach.” See Oelschlegel v. Mut. Real Estate Inv. Tr., 633 A.2d 181, 184 (Pa. Super. 1993). 

This Court has cited and applied the following measure of damages set forth in the Restatement (Second) of Contracts § 347:

[T]he injured party has a right to damages based on his expectation interest as measured by

(a) the loss in the value to him of the other party’s performance caused by its failure or deficiency, plus
(b) any other loss, including incidental or consequential loss, caused by the breach, less
(c) any cost or other loss that he has avoided by not having to perform.

Douglass v. Licciardi Const. Co., Inc., 562 A.2d 913, 915 (Pa. Super. 1989); accord Oelschlegel, 633 A.2d at 184 (discussing Illustration 2 of Restatement 2d  of Contracts § 348). Our courts “have generally allowed damages for incomplete or defective performance of a building contract to be measured by the cost of completing the work or correcting the defects by another contractor.” Douglass, 562 A.2d at 915-16.

“When performance of a duty under a contract is due, any nonperformance is a breach.” Seneca Res. Corp. v. S & T Bank, 122 A.3d 374, 379 (Pa. Super. 2015) . . . .. 

Acts of a third party that cause a delay do not excuse failure to perform if such acts were foreseeable. See Luria Eng’g Co. v. Aetna Cas. & Sur. Co., 213 A.2d 151, 153 (Pa. Super. 1965).  Rather, mere inconvenience, though it works a hardship on a party, does not excuse him from the performance of an absolute and unqualified undertaking to do a thing which is both lawful and possible; and, where performance becomes difficult or impossible by reason of something occurring subsequent to the contract, the promisor is not thereby discharged if it appears that the thing to be done is lawful and possible in itself, inasmuch as it is his duty, if he wishes to be excused from performance in the event of such contingency arising, to provide for that situation in his contract. Id. at 154

default judgment - strike v. open - timeliness

Schwaielder et al. v. Quigley - Pal Superior - 1-9-25

https://www.pacourts.us/assets/opinions/Superior/out/J-A24022-24m%20-%20106231825293901777.pdf?cb=1

Petition to strike default judgment 

“[As] a petition to strike a default judgment presents us with questions
of law regarding the operation of the Pennsylvania Rules of Civil Procedure,
‘our standard of review is de novo and our scope of review is plenary.’” Estate
of McFadden v. McFadden, 305 A.3d 1092, 1094 (Pa.Super. 2023) (quoting
Grady v. Nelson, 286 A.3d 259, 264 (Pa.Super. 2022)).

[A] petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record. A
petition to strike is not a chance to review the merits of the allegations of a complaint. Rather, a petition to strike is aimed at defects that affect the validity of the judgment and that entitle the petitioner, as a matter of law, to relief. 

A fatal defect on the face of the record denies the prothonotary the authority to enter judgment. When a prothonotary enters judgment without authority, that

judgment is void ab initio. When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a … judgment, a court may only look at what was in the record when the judgment was entered. Id. (quoting Grady, supra at 264) (emphasis added).

“[T]imeliness is not a factor where the underlying judgment is void, and
petitions to strike void judgments are granted regardless of any delay.” Erie
Ins. Co. v. Bullard, 839 A.2d 383, 388 (Pa.Super. 2003). Nevertheless, we
emphasize:

It is well-settled that in considering the merits of a petition to strike, the court is limited to “a review of only the record as filed by the party in whose favor the warrant is given…. Matters dehors the record ... will not be considered. If the
record is self-sustaining, the judgment will not be stricken.” Resolution Trust Corp.[ v. Copley Qu-Wayne Associates, 546 Pa. 98, 106, 683 A.2d 269, 273 (1996)].

However, “if the truth of the factual averments contained in such record are disputed, then the remedy is by a proceeding to open the judgment and not to strike.” Id. Digital Communications Warehouse, Inc. v. Allen Investments, LLC,
223 A.3d 278, 287 (Pa.Super. 2019). “A petition to open a default judgment
and a petition to strike a default judgment seek distinct remedies and are
generally not interchangeable.” Roy by and through Roy v. Rue, 273 A.3d
1174, 1186 (Pa.Super. 2022), appeal denied, ___ Pa. ___, 289 A.3d 43
(2022).

Petition to open default judgment

“A petition to open a default judgment is an appeal to the equitable
powers of the court.” Smith v. Morrell Beer Distributors, Inc., 29 A.3d
23, 25 (Pa.Super. 2011) (quoting Dumoff v. Spencer, 754 A.2d 1280, 1282
(Pa.Super. 2000)). “The decision to grant or deny a petition to open a default
judgment is within the sound discretion of the trial court, and we will not
overturn that decision absent a manifest abuse of discretion or error of law.”
Id. (quoting Dumoff, supra at 1282).

“If the petition [for relief from a default judgment] is filed within ten
days after the entry of a default judgment on the docket, the court shall open
the judgment if one or more of the proposed preliminary objections has merit
or the proposed answer states a meritorious defense.” Pa.R.C.P. 237.3(b)(2).
Where a petition to open a default judgment is not filed within ten days after
the entry of a default judgment, the movant must “(1) promptly file a petition
to open judgment; (2) provide a meritorious defense; and (3) offer a
legitimate excuse for the delay in filing a timely answer.” Reid v. Boohar,
856 A.2d 156, 160 (Pa.Super. 2004). “[T]he trial court cannot open a default
judgment based on the ‘equities’ of the case when the defendant has failed to
establish all three of the required criteria.” US Bank N.A. v. Mallory, 982
A.2d 986, 995 (Pa.Super. 2009).

With respect to the prompt filing of a petition to open, this Court “does
not employ a bright line test[.]” Flynn v. America West Airlines, 742 A.2d
695, 698 (Pa.Super. 1999). Courts focus on two factors: “(1) the length of
the delay between discovery of the entry of the default judgment and filing
the petition to open judgment, and (2) the reason for the delay.” Id. One
month or less between the entry of the default judgment and the filing of a
petition for relief from the judgment typically meets the requirement for a
prompt filing. See Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176
(Pa.Super. 2009). See also US Bank N.A., supra (comparing cases and
finding an 82-day delay between entry of default judgment and filing of
petition for relief was not prompt).

Note:  This is an unreported decision that does not have precedential value  However, under the court's internal rules, it can be cited for its persuasive value.

tax sale - proof of notice - business record - hearsay

Molchan v. Mercer County Tax Claim Bureau (TCB)

319 A. 3d 363 (Pa. Cmwlth. 2024)

https://scholar.google.com/scholar_case?case=9826829080865870124&q=molchan+v.+tax+claim&hl=en&as_sdt=4,39

Held: Field report of agent of TCB was hearsay and not admissible as a business record, where

- property owner testified that he did not see/receive proper notice of tax sale

- owner testified that he could/would have paid taxes if he'd received notice

- TCB director offered report of agent re notice as business record

- agent did not appear and testify 

- director had no direct knowledge of posting

Due process applies to collection of taxes

"[T]he collection of taxes may not be implemented without due process of law." Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 312 (Pa. Cmwlth. 2013). 

A property owner's right to notice "prior to commencing with an upset tax sale [is] established pursuant to the Due Process Clause of the Fourteenth Amendment to the United States [(U.S.)] Constitution[, U.S. Const. amend. XIV, § 1,] and by the [RETSL]." Rice v. Compro Distrib[.], Inc., 901 A.2d 570, 574 (Pa. Cmwlth. 2006).

TCB has burden of proving strict compliance with notice of tax sale

"[S]trict compliance with the [RETSL's] notice provisions is essential to prevent the deprivation of property without due process." Est. of Marra v. Tax Claim Bureau of Lackawanna Cnty., 95 A.3d 951, 956 (Pa. Cmwlth. 2014).

In all tax sale cases, the tax claim bureau "has the burden of proving compliance with the statutory notice provisions." Krawec v. Carbon[Cnty.] Tax Claim Bureau, 842 A.2d 520, 523 (Pa. Cmwlth. 2004). Section 602 [of the RETSL] requires three different forms of notice to property owners prior to an upset tax sale: publication, posting, and mail. "If any of the three types of notice is defective, the tax sale is void." Gladstone v. Fed[.] Nat['l] Mortg[.] Ass['n], 819 A.2d 171, 173 (Pa. Cmwlth. 2003).

The business record exception to hearsay did not apply  ....

The exception can apply to tax sales if adequate proof is show, by virtue of a statute, 42 Pa. C.S. 6108 (b) and Pa. Rule of Evidence 803 (6)

The Act and [ ] Rule [803(6)] substantially overlap in that both generally require that a custodian or other qualified witness testify that the record was made at or near the time of the event recorded and that the record was kept in the regular course of business. Moreover, both provide for the trial court to make a determination in regard to whether the circumstances surrounding the record justify its admission or indicate a lack of trustworthiness. Bayview, 206 A.3d 474, 483 (Pa. 2019)

Authenticating witness is required for the exception to apply

There must be a qualified, authenticating witness concerning preparation and maintenance of the records, in order to establish the trustworthiness of the record. 

Here, the director of the TCB was not  a qualifying witness under Pa. law. The Pennsylvania Supreme Court has held:

[W]e neither adopt a bright line rule forbidding the authentication of documents recorded by a third party, nor do we endorse an automatic incorporation doctrine. Instead, we will continue to allow our trial courts to utilize their broad discretion in evidentiary matters by applying the business record exception of Rule 803(6) and the Act to determine if the witness "can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness" subject to the opponent rebutting the evidence with any other circumstances indicating a lack of trustworthiness. In re Indyk's Est[., 488 Pa. 567,] 413 A.2d [371,] 373 [(1979)].

Bayview, 206 A.3d at 486

The director of the TCB never stated that she was the custodian of the Bureau's records or owner's  file, nor did she offer any testimony regarding the manner in which the agent prepared and maintained the Report or the timing of preparation in relation to the posting,  which information is not evident from the Report itself.. . .The mere fact that the Bureau possesses the Report and calls it a business record is not sufficient to make it so. [emphasis added] . . . The TCB director was not a qualified witness whose testimony alone was sufficient to offset the Report's hearsay character.

admin. law - due process - untimely/late decision

J.F. v. DHS - Cmwlth. Court - 10-1-24 - reported case

https://scholar.google.com/scholar_case?case=9871961392109473603&q=no.+728+C.D.+2023&hl=en&as_sdt=4,39

Held: There was no due process violation by adjudication that was months past the statutory deadline or 45 days in 23 Ps. S.S. 6341(c.3). The requirement of a prompt decision was held to be directory rather than mandatory.

Of particular note: The alleged abuser did not challenge the substantive findings, but rather asked the court to vacate the decision "based solely on the delay in the issuance of the" admin. order. Also, the petitioner got adequate notice of the hearing and had an adequate opportunity to be heard and defend himself.

Due process balancing - private interest not compelling

Even though the constitutional right to reputation was implicated, Article I, sec. 1, of the state constitution, it was not compelling in this instance since only a "limited number of people in a limited set of circumstances" would have access to the information

Due process - value of additional safeguards limited - 

"This [C]ourt has consistently held that provisions which impose time limitations on procedures before adjudicative tribunals are directory, rather than mandatory, even when phrased in mandatory language[.]" Winston v. Dep't of Pub. Welfare, 675 A.2d 372, 375 (Pa. Cmwlth. 1996) (listing cases). Where an administrative agency fails to act within a specified time period, the Court reviews a number of other factors to determine whether the failure to comply with the time period merits relief, including the prejudice suffered by the parties, the penalties specified for failure to comply with the specified time period, and the intent of the law to which the time period applies. See J.L. v. Dep't of Pub. Welfare, 575 A.2d 643, 646-47 (Pa. Cmwlth. 1990).

Due process - The state interest involved was strong - protection of children from abuse.

FLSA - home health care service - travel between client homes

Secretary of Labor v.Nursing Home Care Management, Inc.

3d Cir. - January 31, 2025

https://www2.ca3.uscourts.gov/opinarch/232284p.pdf

Held: Employees of home health care service were entitled to be compensated for the time spent traveling between client homes, under the Fair Labor Standards Act,,  29 USC sec. 203 et seq.

tas sale - RETSL - due process - notice - agent/authorized person

Weaver v. Schuylkill County Tax Claim Bureau - 9-11-24 - reported decision

https://scholar.google.com/scholar_case?case=13598406275712569404&q=weaver+v.+schuylkill&hl=en&as_sdt=4,39

Held: Certified mailed notice of sale, signed for by agent of owner, complied with Real Estate Tax Sale Law, 72 P.S. sec. 5860.101 et seq. 

Owner or "authorized person" must get notice of sale

One of the essential prerequisites to a valid upset tax sale is notifying the owner "[a]t least thirty days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid[.]"^[5] Section 602(e)(1) of RETSL, 72 P.S. § 5860.602(e)(1). "To satisfy Section 602(e), the notice must be [accepted by] the personal addressee or someone with authorization." Williams v. Cnty. of Monroe, 303 A.3d 1098, 1101 (Pa. Cmwlth. 2023), reargument denied(Oct. 16, 2023) (citations omitted); see also Husak v. Fayette Cnty. Tax Claim Bureau, 61 A.3d 302, 311 (Pa. Cmwlth. 2013) ("Even when a return receipt is signed, the signature must belong to someone authorized by the owner to accept certified mail." (citations omitted)). . . . 72 P.S. § 5860.602 ("no sale shall be invalidated because of proof that mail notice as herein required was not received by the owner, provided such notice was given as prescribed by this statute.").

The return mail receipt must have an indication of agency

 Ali v. Montgomery County Tax Claim Bureau, 124 Pa.Cmwlth. 557, 557 A.2d 35, 37 (1989), 

Dwyer v. Luzerne County Tax Claim Bureau, 110 A.3d 223, 227 (Pa. Cmwlth. 2015), 

In this case, "the evidence in the record demonstrates that Appellant's mother had authority to sign for certified mail addressed to Appellant. The certified mail restricted delivery^[7] return receipt was signed by Appellant's mother, who checked the box indicating that she was signing as an "Agent" (rather than the "Addressee"), and it was stamped by the postmaster. See Hr'g Tr., 10/24/22, Appellant's Ex. 4. Further, both the 2014 and 2015 entry of claim notices addressed to Appellant were also signed by his mother. See id. Accordingly, the Bureau established that Appellant's mother signed the notice as Appellant's agent. See Popple, 960 A.2d at 523; cf. Dwyer, 110 A.3d at 227.

Pa Constitution - right to reputation

In re 30^th County Investigating Grand Jury – Pa. Supreme Court – 10-24-24

https://www.pacourts.us/courts/supreme-court/court-opinions/

 

Individuals’ “inherent and indefeasible” right to their reputation is enshrined in the Pennsylvania Constitution. PA CONST. art 1, § 1 (“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property 

and reputation, and of pursuing their own happiness.”). 

 

This Court has been clear that the right to reputation is not some lesser right but, rather, a fundamental constitutional entitlement on the same plane as the rights to life, liberty, and property. Fortieth I, 190 A.3d at 573 (citing Am. Future Sys., Inc. v. Better Business Bureau of Eastern Pa., 923 A.2d 389, 395 n.7 (Pa. 2007)). See also Driscoll v. Corbett ̧ 69 A.3d 197, 210 (Pa. 2013) (acknowledging the right to reputation as among the foundational freedoms); R. v. Commonwealth Dep’t of Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (this Court regards the right to reputation “as a fundamental interest which cannot be abridged without compliance with constitutional standards of due process and equal protection.”) (citations omitted)).

 

Housing - sec. 8 - lying about income - theft by deception

Commonwealth v. Gaspard – Pa. Super. – 9-17-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A12023-24o%20-%20106074904281363762.pdf?cb=1

 

Tenant convicted of theft by deception for lying about her income and thus receiving sec. 8 benefits.

 

The record confirms that Appellant intentionally withheld reporting a source of income to the Authority despite her signed certifications that she would report any changes in income from any source, and that the Authority relied on Appellant’s statements when awarding her Section 8 housing. See 18 Pa.C.S.A. § 3922(a)(1); McSloy, supra; Grife, supra. 

 

As the trial court observed, the Authority could not investigate whether Appellant had a net income from self-employment if it was not put on notice of that employment. . . .By failing to disclose her business income, Appellant prevented the Authority from acquiring information which might have affected her entitlement to Section 8 housing, and the Authority paid a housing benefit on Appellant’s behalf. See 18 Pa.C.S.A. § 3922. 

 

Thus, viewing the evidence in the light most favorable to the Commonwealth as the verdict-winner, the evidence was sufficient to sustain Appellant’s conviction for theft by deception. 

 

 

 

contracts - breach - fraud - gist of action doctrine

Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1

 

 

Breach of contract

Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. 

Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided: 

 

A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. 

Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted). 

 

 

Fraudulent misrepresentation: 

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. 

**** 

[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. 

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141. 

 

Gist of the action doctrine

Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further: 

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used Kotarja v. Aberra – Pa.Superior – 4-16-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A03021-23m%20-%20106072503281132164.pdf?cb=1

 

 

Breach of contract

Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. Additionally, it is axiomatic that a contract may be manifest orally, in writing, or as an inference from the acts and conduct of the parties. 

Burlington Coat Factory of Pennsylvania, LLC v. Grace Const. Mgmt. Co., LLC, 126 A.3d 1010, 1018 (Pa. Super. 2015) (internal citation, indentation, and brackets omitted). This Court has also provided: 

 

A written contract which is not for the sale of goods may be modified orally, even when the written contract provides that modifications may only be made in writing. An agreement that prohibits non-written modification may be modified by subsequent oral agreement if the parties’ conduct clearly shows the intent to waive the requirement that the amendments be made in writing. An oral contract modifying a prior written contract, however, must be proved by clear, precise and convincing evidence. 

Somerset Cmty. Hosp. v. Allan B. Mitchell & Associates, Inc., 685 A.2d 141, 146 (Pa. Super. 1996) (internal citations omitted). 

 

 

Fraudulent misrepresentation: 

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. 

**** 

[I]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. 

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012) (en banc) (internal citations and indentation omitted). Under “common law fraud[,] a seller of real estate is only liable for failing to reveal objective material defects.” Id. at 141. 

 

Gist of the action doctrine

Generally, the gist of the action doctrine is “designed to maintain the conceptual distinction between breach of contract claims and tort claims . . .[and] precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010). As our Supreme Court held, following its thorough analysis, in Bruno v. Erie Ins. Co., the “nature of the duty alleged” is the “critical determinative factor in determining whether the claim is truly one in tort or for breach of contract.” 106 A.3d 48, 111-12 (Pa. 2014). Contractual duty is based in terms created between the contracting parties and involves “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract.” Id. at 112. A duty based in tort, however, involves an individual’s broader social responsibility to others and exists regardless of the contract between the parties. See id. The factual allegations averred are of “paramount importance” in the analysis and determination; and, crucially, “the mere existence of a contract between two parties does not, ipso facto, classify a claim . . . for injury or loss suffered as the result of actions by the other party in performing the contract as one for breach of contract.” Id. at 112-114. A claim is predicated in tort where the contract “is regarded merely as the vehicle, or mechanism, which established the relationship between the parties.” Id. at 114. Further: 

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or 

gesture.  Youndt v. First Nat’l Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. 2005). 

 

Where misrepresentations induce a party to enter into a contract, this Court has held that the gist of the action is in tort, and the contract is collateral. See Mirizio, 4 A.3d at 1087; Knight, 81 A.3d at 951; Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. 2005). As 

 

Superior Court – citing non-precedential opinions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

MDJ judgments - certiorari - timely filing of proof of service of appellee and MDJ

Thinkgrow Partners v. Parks – Pa. Super. – 8-26-24 – non-precedential ***

https://www.pacourts.us/assets/opinions/Superior/out/J-A09043-24m%20-%20106049081278758898.pdf?cb=1

 

Appellant filed writ of certiorari from MDJ decision giving appellee, property owner and judgment for possession in alleged landlord-tenant case. Appellant claimed that he was not a tenant but rather a purchases under a lease-purchase agreement, which is not subject to LT law and over which MDJ does not have jurisdiction.

 

It is undisputed that appellant timely served counsel for the property owner. Appellant also timely served MDJ using a form – apparently issued and approved by AOPC – which contained “only a section for proof of service” on the MDJ but with “no corresponding section for proof of service on the opposing party.” So appellant didn’t filed proof of service on owner’s counsel until after her case was dismissed for failure to comply with MDJ Rule 1011(c), which required proof of service within 5 days of service.

 

Superior Court affirmed the trial court’s dismissal of the certiorari action for failure to comply with MDJ Rule 1011 C, noting that it was a “particularly harsh” result, expecially given that locak of dispute that the owner’s counsel had been timely served.  Both courts also noted that a different result might have occurred if this were an appeal rather than certiorari. The Rules for appeals, MDJ Rule 1006, allow a court to reinstate an appeal, where there was an untimely proof of service, “upon good cause shown.” 

 

Both courts relied on the mandatory language of MDJ Rule 1011 © (certiorari “shall....be stricken”) with no saving language as with appeals, thus negating any discretion.

 

+++++++++++++++

 

***  Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

 

 

 

 

 

 

mailbox rule

 

Angels of Care v. DHS – Cmwlth. Court – 8-28-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/390CD23_8-28-24.pdf?cb=1

 

Pursuant to what has commonly been termed the “mailbox rule,” where there is evidence that an agency mailed a notice to a provider’s last known address that is not returned as undeliverable, that evidence ordinarily will be sufficient to permit a factfinder to find that the notice was, in fact, received the party to whom it was addressed. Douglas v. Unemployment Compensation Board of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016); Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). “[W]hen a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Pinnacle Health Hospitals v. Unemployment Compensation Board of Review, 210 A.3d 1127, 1132 (Pa. Cmwlth. 2019) (citation and quotation omitted). When such evidence is present, it will give rise to a presumption that the recipient of the notice received it. Douglas, 151 A.3d at 1191. To defeat the presumption, the recipient must come forward with evidence showing that the notice was not, in fact, received. Id; Pinnacle Health Hospitals, 210 A.3d at 1133. It is well settled that merely denying receipt of an agency determination is not sufficient to defeat the presumption. Id. at 1132; J.A. v. Department of Public Welfare, 873 A.2d 782, 786 (Pa. Cmwlth. 2005). 

 

evidence - authentication - screen shots of texts and emails

Walker v. Walker – Pa. Superior – 8-9-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A09010-24o%20-%20106031657276969196.pdf?cb=1

 

In PFA contempt proceeding, court held that victim’s  testimony sufficiently authenticated screen shots of defendant’s texts and emails, which supported a finding of contempt, citing Pa. R. E. 901 (b)(11)(B).