Pittsburgh Legal Journal Opinions - Allegheny County Bar Association

VOL. 158 NO. 9 April 23, 2010 

PITTSBURGH LEGAL JOURNAL 

OPINIONS 

allegheny county court of common pleas 

Nello Fiore v. County of Allegheny, Pennsylvania 

Della Vecchia, J. and McCarthy, J. ..........................................Page 147 

Expert Testimony—Fitzmartin Case 

3D Amusements Inc. v. 

Celebrations and More, Inc., Friedman, J. ............................Page 153 

Petition to Open Judgment Entered by Confession— 

Breach of Contract—Burden of Proof 

Neal R. Grove v. Robert L. Smith, et al., McCarthy, M. ........Page 155 

Breach of Fiduciary Duty—Gist of the Action Doctrine— 

Extrinsic and Parol Evidence—Evidence of Motive 

Mary C. Henderson v. 

UPMC, et al., Wettick, Jr., J. ....................................................Page 158 

Class Action—Pennsylvania Wage Payment and Collection Law, 

43 P.S. §260.1 et seq., Pennsylvania Minimum Wage Act of 1968, 

43 P.S. §333.101, et seq. 

In Re: In the Interest of: M.S., a minor, Mulligan, J. ............Page 160 

Recusal Request—Evidence of Delinquency—Aggravated Assault 

Commonwealth of Pennsylvania v. 

Elroy Layne, McDaniel, P.J. ....................................................Page 162 

Voir Dire—Abuse of Discretion—Hearsay

PLJ 

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family law opinions committee 

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april 23, 2010 page 147 

Nello Fiore v. 

County of Allegheny, Pennsylvania 

Expert Testimony—Fitzmartin Case 

1. Plaintiff claims an ownership interest in all of the coal contained within those portions of the “Pittsburgh Seam” of coal located 

in South Park Township, Allegheny County, Pennsylvania. The surface of the subject property lies in an area designated as 

“South Park,” component of the Allegheny County Park System. 

2. Plaintiff sought to enter said property for the purpose of core drilling to determine the location of the coal, the amount of coal 

contained and the most feasible means of mining that coal. 

3. Crux of litigation is whether Plaintiff must obtain permission from Allegheny County to strip mine portions of the “Pittsburgh 

Seam” that he believes he owns. 

4. Allegheny County denied Plaintiff access to enter the property to begin the process of mining the coal. 

5. It was not error for the trial court to admit opinion testimony on the ultimate issue in the case from an attorney who testified 

that the lack of specific language in the grant to allow strip mining was intended to limit the grantee to deep mining only. 

6. The trial court did not err in holding that the language of the grants at issue were not general enough or broad enough to 

include strip/surface mining as set forth in Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). In Fitzmartin, the Court 

advanced a four (4) factor to determine whether strip mining may be an appropriate method of extraction of subsurface minerals 

when the deed is silent as to the acceptable method of mining. 

7. Court did not find the surface of property in South Park Township to be “unimproved terrain,” the fourth factor in the 

Fitzmartin case. 

(JoAnn F. Zidanic) 

Thomas W. King, III for Plaintiff. 

Michael H. Wojcik for Defendant. 

No. GD 08-021519. In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. 

OPINION 

Della Vecchia, J. and McCarthy, J., December 22, 2009—This matter comes before the Commonwealth Court on the appeal of 

Nello Fiore, Plaintiff (Plaintiff or Fiore) from the Memorandum and Order of this Court dated August 17, 2009. 

1. BACKGROUND 

Nello Fiore, Plaintiff in the above matters, filed two separate actions at the above numbers, the first being a declaratory judgment 

action at GD 08-21518 and the second being a Petition for the Appointment of a Board of Viewers, i.e. a de facto taking at GD 

08-21549 regarding coal rights under a certain parcel of land in a public park known as South Park, which is owned and operated 

by Allegheny County. 1 The purpose of both actions is to obtain the right for or recognize the right of the Plaintiff to “strip mine” 

certain coal contained in a section of the Park without the permission of the surface owner, i.e. Allegheny County. 

This matter was assigned to Judge Michael A. Della Vecchia, and by his request, Judge Michael E. McCarthy joined him in the 

resolution of these matters. 2 The parties specifically requested of the Court at a status conference on December 22, 2008, that the 

Court first resolve the issue of whether or not Plaintiff has the right to employ a strip mining method to extract coal from the subject 

property. The Court agreed to the parties’ request; and accordingly did not and has not ruled upon the pending Preliminary 

Objections. 

The coal underlying the subject property was severed from the surface by Deeds from James W. Stewart to Albert C. Rohland 

(Deed Book Vol. 1161, Pg. 487 (dated February 15, 1902); Albert C. Rohland to the Pennsylvania Mining Company (dated March 6, 

1902). The severance was not by reservation but by grant. The deed to Pennsylvania Mining Company is recorded in the Allegheny 

County Clerk of Records Office at Deed Book 1180 Page 148. 

Thereafter, the March 6, 1902 Deed was corrected by Deed dated April 30, 1909 from Albert C. Rohland and Elizabeth G. 

Rohland to Pittsburgh Coal Company (formerly Pennsylvania Mining Company), now known as Consolidation Coal Company. This 

severance was also by direct grant and not by reservation. Said Deed is recorded in the Allegheny County Clerk of Records Office 

at Deed Book 1638 Page 65. 

Plaintiff inherited his interest in the mineral rights from his brother, Fred Fiore. The late Fred Fiore had acquired said coal 

rights in a deed dated March 4, 1985 from Consolidation Coal Company. Said deed is recorded in the Allegheny County Clerk of 

Records Office at Deed Book 7233 Page 318. 

Plaintiff claims an ownership interest in all of the coal contained within those portions of the “Pittsburgh Seam” of coal located 

in South Park Township, Allegheny County, Pennsylvania. The surface of the subject property lies in an area designated as 

“South Park,” a component of the Allegheny County Park System. The crux of this litigation is whether that circumstance requires 

Fiore to obtain permission from Allegheny County to strip mine portions of the “Pittsburgh Seam” that he believes he owns. 

Plaintiff sought to enter said property for the purpose of core drilling to determine the location of the coal, the amount of coal 

contained and the most feasible means of mining that coal. Plaintiff insists that he has the right to extract the subject coal by strip 

and/or surface mining methods. Plaintiff further asserts that there are 716,700 tons of coal contained in said tract. 

The dispute arose when, on or about June 17, 2008, Plaintiff communicated his intention and was denied access by Allegheny 

County to enter the property to begin the process of mining the coal. The denial was communicated by letter dated July 2, 2008, 

from the office of Allegheny County Chief Executive, the Honorable Dan Onorato. 3 

The Complaint as filed alleges that the value of metallurgical grade coal, the type that Plaintiff believes is under the subject 

property, is valued at One Hundred Forty-Three Dollars ($143) per ton. Based on these figures, Plaintiff contends that the coal 

rights at issue are valued at One Hundred Two Million Four Hundred Eighty Eight Thousand Dollars. ($102,488,000), (See, 

Complaint, Exhibit D). 

Despite Plaintiff’s estimate of the value of the coal, said rights were purchased for Five Thousand Dollars ($5,000) by Plaintiff’s 

brother, Fred Fiore, in 1985. Additionally, in September 1997, in the inventory filed in his capacity as Executor for the Estate of

page 148 volume 158 no. 9 

Fred Fiore, Deceased, Plaintiff reported value of the coal rights at One Hundred Dollars ($100). See, Allegheny County Will Book 

Volume 567, Page 1096. 

II. PROCEDURAL HISTORY 

This cause of action was initiated by a Complaint in Civil Action – Declaratory Judgment, filed on October 9, 2008 at General 

Docket (hereinafter “GD”) number 2008-02158. Also, a Petition for Appointment of Viewers, asserting a de facto taking was filed 

at GD 2008-021549 based on the same facts and allegations. Allegheny County filed Preliminary Objections in both actions. 

A status conference was held on December 22, 2008. The parties, through their respective counsel, requested that the Court 

answer the threshold question of whether or not the coal grant in Plaintiff’s chain of title authorized surface mining of the coal 

without the permission of the surface owner. On March 3, 2009, an Order was issued scheduling an argument regarding Plaintiff’s 

coal interest for April 15, 2009. 4 

Following said argument, this Court determined that, in light of Plaintiff’s great reliance on the Fitzmartin case, that a factual 

hearing should be held to determine whether or not the four factors used to establish the extent of a grantee’s mining rights under 

Fitzmartin were met in the present case. The Court did so without ruling as to the precedential impact of Fitzmartin in this matter. 

On April 24, 2009, this Court issued an Order stating, 

[H]aving heard argument on April 15, 2009, regarding the issue of “whether or not the grant of coal rights in Plaintiff’s 

chain of title confer upon Plaintiff the right to strip mine on the subject real estate” and the Court, after hearing argument 

and reviewing Briefs and Supplemental Briefs, has decided that a hearing is required to determine the following: 

1. Whether or not Plaintiff’s case has met the criteria for surface mining set forth in the four factors of the Fitzmartin 

case. 

2. The exact record of prior litigation involving the Plaintiff of his predecessors-in-title claim to coal and mining rights 

within South Park in 1978 and 1979 and any other years that litigation occurred. 

3. What governmental entity(ies)(local, county, state or federal) has/have the authority to grant Plaintiff the right to 

mine the subject property, surface or deep, and what steps need to be taken by Plaintiff to obtain legal approval to 

mine the subject property. 

(Order dated April 24, 2009) 

The hearing was scheduled for July 20 and 21, 2009. The parties were instructed to file Pre-Hearing Statements with the Court 

ten (10) days prior to the hearing. In anticipation of said hearing, the Court (both judges), with all parties present, viewed the property 

on July 13, 2009. 

Following the view and a two-day hearing, the Court authored a Memorandum and Order of Court, which was filed on August 

18, 2009. The Court held that Plaintiff does not meet all of the qualifications in the Fitzmartin case, if in fact that case is still controlling 

(discussed infra). The Court held that the mere fact that the subject deeds do not specifically ban strip mining does not 

mean that this type of mining is permitted. 

The Plaintiff took exception to this ruling and on September 14, 2009, and filed a Notice of Appeal to the Commonwealth Court. 

Based on this Notice and pursuant to Pa.R.C.P. 1925(b), this Court directed the Plaintiff to file a Concise Statement of Matters 

Complained of on Appeal. (Order dated September 28, 2009). Said Statement was timely filed on September 30, 2009, placing this 

matter before the Commonwealth Court of Pennsylvania. 5 

III. ISSUES RAISED ON APPEAL 

Plaintiff raises the following claims of error: 

1. The Trial Court committed an error of law on holding that the Plaintiff does not possess the right to strip/surface mine 

the property subject to this action. 

2. The trial court’s finding that Plaintiff does not have the right to strip/surface mine the subject parcel is not supported 

by the record. 

3. The trial court erred in finding that the property subject to this case is “improved” within the meaning of 

Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). 

4. There is not sufficient factual evidence of record to support the finding that the property subject to this action is 

“improved” within the meaning of Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). 

5. The trial court committed an error of law in finding that the property subject to the present action is “improved” within 

the meaning of Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). 

6. The trial court erred in holding that the language of the grants at issue are not general enough or broad enough to 

include strip/surface mining as set forth in Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). 

7. The trial court erred in holding that the character of the property not subject to this action, i.e. adjoining property, is 

relevant to the matters at issue. 

8. The County Parks Director’s testimony, and the record as a whole, was insufficient to support a finding that the 

Property subject to this case is “improved” within the meaning of Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). 

9. The trial court’s finding that deep mining was the exclusive method of coal extraction is not supported by the record 

and an error of law. 

10. The trial court erred in finding that a “mountain bike trial” is an “improvement” within the meaning of 

Commonwealth v. Fitzmartin, 102 A.2d 893 (Pa. 1954). 

11. The trial court failed to consider the previous litigation involving the coal rights subject to this case in that the 

Defendant herein was a party to litigation in 1978 and 1979. The Defendant County sought to have the subject coal mined

april 23, 2010 page 149 

by the surface mining method in 1979 by another mine operator. As settlement of the subsequent claim for Interference 

with Contractual relations, the subject coal was transferred to the Plaintiff’s predecessor in interest. Said events establish 

Defendant’s consent/concession that the subject coal would be mined by the surface/strip mining method. 

12. The trial court failed to consider and recognize the Defendant’s prior settlement and consent in the chain of [title] of 

the coal subject to this action. That is, the trial court failed to hold, contrary to the evidence of record, that the County 

consented in litigation filed in 1978 and 1979 that the subject coal would be surface/strip mined by the Plaintiff’s predecessor 

in interest, Fred Fiore. 

13. The trial court erred in admitting opinion testimony from an attorney relative to the ultimate issue for the Court. The 

question before the Court was the interpretation of the language contained in deeds and the attorney invaded the province 

of the Court. 

14. The trial court erred in applying standards for deed interpretation when it found that the subject description did not 

permit extraction of the coal by the strip/surface mining method when it held that “deep mining was the exclusive method 

of coal extraction.” 

15. Such other matters as may be specified after receipt and review of the transcript of July 20-21, 2009 hearings. 6 

III. DISCUSSION 

For the purpose of setting forth a coherent discussion of the issues raised by Plaintiff Fiore, the Court has made the following 

groupings: 

A. Interpreting the coal clauses in the subject deeds (see matters complained of numbers 1, 2, 6, 9, 13 and 14). 

B. In determining whether or not the Fitzmartin case standards were met by Plaintiff Fiore (see matters complained of numbers 

3, 4, 5, 7, 8 and 10). 

C. In determining the effect of prior litigation (see matters complained of 11 and 12). 

D. General Discussion 

This Court makes the following response to Plaintiff Fiore’s allegations of error: 

A. Regarding Interpreting the Coal in The Subject Deeds And Related Matters: 

Plaintiff reduces the pertinent language of the underlying instruments to the following: 

The 1902 Grant: 

All the coal…in and under all that certain tract of land…. Together with all and singular property improvements ways, 

waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatever thereunto belonging or in 

anywise appertaining and the reservations and remainders rents, issues and profits hereof; and all the estate, right, to the 

interest property, claim and demand whatsoever, of the said party of the first part, in law, equity or otherwise howsoever 

of in and to the same and every part thereof. 

The 1909 Grant: 

Together with the right to mine and remove all and any part of the coal, without being required to provide for the support 

of the overlying strata or surface, and without being liable for any injury to the same, or to anything thereon or therein 

by reason therefore by reason of the manufacture of the same, or other coal into coke, and with all reasonable privileges 

for ventilating, punching and draining the mine together with the free and uninterrupted right of way through and 

under said lands, and to build, keep and maintain, roads and ways, in and through said mines forever, for the transportation 

of said coal, and if coal and other things necessary for mining purposes, from and to other lands which now or hereafter 

may belong to said party of the second part, its successors and assign. This deed being made for the purpose of vesting 

mining rights in the said Pittsburgh Coal Company of Pennsylvania, formerly Pennsylvania Mining Company. 

Together with all and singular treatments, hereditaments and appurtenances thereunto belonging or in anywise appertaining 

and the reversions, remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, property, 

claim and demand whatsoever, as well in as in equity of the said parties of the first part, of, in or to the described 

premises, and every part and parcel thereof, with the appurtenances. To Have and To Hold, all and singular the above 

mentioned and described premises together with the appurtenances unto the said party of the second part, its successor 

and assigns forever. 

Fiore maintains that the aforementioned grants are as general as could be fashioned. Fiore interprets this language liberally, by 

placing emphasis on the language “free and uninterrupted right of way through and under said lands,” which is exactly what Fiore 

had planned to do, i.e. “move through the land (surface) to extract the coal. 

Fiore further maintains that he would not be responsible for any damage to the property, noting that the 1909 grant explicitly 

provides that the grantee may “mine and remove all and any part of the coal, without being required to provide for the support of 

the overlying strata or surface, and without being liable for any injury to the same, or to anything thereon or therein” Plaintiff 

interprets the aforesaid language as a license to strip or surface mine the subject property. 

Strip mining, as the term indicates, is the stripping away of the earth surface and the horizontal withdrawal of the mineral 

deposits at hand. Shaft mining involves the sinking of a vertical shaft into the ground and the developing from that 

point of tunnels and galleries which serve as vantage points from which to withdraw and [lift] the coal deposits through 

the shaft. Shaft mining does a minimum of damage to the outer crust of the earth; strip mining does a maximum of damage. 

Strip mining is affected through steam shovels and bulldozers which turn up the top layer of the earth. 

(Commonwealth v. Fitzmartin, 102 A.2d 893, 894-5 (Pa. 1954), citing Rochez Bros., Inc. v. Duricka, 97 A.2d 825, 826 (Pa. 

1953)). 

Plaintiff does acknowledge that he has a responsibility to reclaim the property after the proposed surface mining is complete 

pursuant to the laws and regulations of the Commonwealth. The Plaintiff will further acquiesce to “all rules and regulations of the 

Department of Environmental Protection which will govern the environmental impact of said mining operations” if he was to be


permitted to mine the subject property. 

In summary, Plaintiff insists that the grant in the present case is sufficiently broad to include strip mining, as evidenced by the 

absence of a prohibition against strip mining in the language of the grant. Further, Plaintiff claims a right to mine all of the coal. 

Additionally, Plaintiff maintains he has a release of obligation to provide surface support and a waiver of liability for any surface 

damage that might occur. Plaintiff submits, that, in any event, inasmuch as the surface is unimproved, any surface damage would 

be negligible. (Brief of Fiore Regarding Coal Rights at p. 20). 

Plaintiff takes exception to this Court’s decision to allow the County to call Samuel L. Douglas as an expert in the field of writing 

and interpreting mineral rights. Mr. Douglas is an attorney with over fifty (50) years experience in a practice that specializes 

in mineral-coal, oil and gas rights. (Tr. at 175-76). Mr. Douglas has participated in the creation or examination of “thousands of coal 

severance deeds.” (See Tr. at 178) 

Mr. Douglas served as the coordinator and president of the Energy Mineral Foundation, a foundation engaged in the edification 

of lawyers by way of sharing case law concerning the subject matter at issue in the present case. (Tr. at 178-9). Plaintiff did not 

object on the record to Samuel L. Douglas being qualified as an expert by this Court, but, on the contrary, recognized Mr. Douglas 

as “an outstanding attorney in this county.” (Tr. at 179). Moreover, to the extent that Mr. Douglas proffered background on conveyances 

that grant surface mining rights and practices historically observed within this region, such testimony was certainly not 

similar to the sort introduced in Commonwealth v. Neal, 421 Pa.Super. 478, 618 A.2d 438 (1992), as to the effectiveness of counsel. 

Plaintiff’s reliance upon Neal is misplaced. 

Furthermore, it was made explicit to the parties that Mr. Douglas was being allowed to render an opinion that this Court was 

free to accept or reject. (Tr. at 180). It was the opinion of Mr. Douglas that it would have been, “highly unusual for any case to say 

without the word ‘strip mining’ to allow strip mining. And I certainly don’t think strip mining was anticipated in this case, or surface 

mining, whatever you want to call it by today’s nomenclature.” (Tr. at 187). 

Mr. Douglas went on to explain that particular language used in the conveyance, “under,” “across,” “ventilation,” ‘waiver of surface 

support’ as well as language that was absent, such as “upon” or “waiver of lateral support.” Said language, or lack thereof, 

leads Douglas to conclude that the grant was intended to limit the grantee to deep mining only. (Tr. at 188-9). This opinion was rendered 

over the objection of Plaintiff. (Tr. at 189). 

Pennsylvania law allows expert testimony as to the ultimate issue. See Commonwealth v. Daniels Co., 390 A.2d 172 (Pa. 1978); 

Cooper v. Metropolitan Life Insurance Co., 186 A.2d 125 (Pa. 1936). “The trial judge has discretion to admit or exclude expert opinions 

on the ultimate issue depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice.” 

McManamon v. Washco, 906 A.2d 1259, 1278-79 (Pa.Super. 2006). Therefore, “the trial court will not be reversed in ruling upon the 

admissibility of testimony to the ultimate issue in the case unless the trial court clearly abused its discretion and actual prejudice 

occurred.” Childers v. Powerline Equipment Rentals, Inc., 681 A.2d 201, 210 (Pa.Super. 1996). Additionally, Pa.R.E. 704, entitled 

“Opinion on Ultimate Issue,” provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable 

because it embraces an ultimate issue to be decided by the trier of fact.” 

Plaintiff had the opportunity to introduce expert testimony on any pertinent matter. Plaintiff’s counsel conceded Douglas was 

an expert, but saw no value in introducing expert testimony to rebut Douglas’ testimony (Tr. at 179-181). Plaintiff did, however, 

introduce testimony from two experts (Kenneth Koten (Tr. 110 et seq.) and Jonathan Hiser (Tr. 82 et seq.). Both testified that 

the best way to mine the coal on the subject property was by strip mining. This testimony did not significantly aid the Court in 

resolving the underlying issue of whether or not Plaintiff possessed the right to strip the subject property without the County’s 

permission. 

More problematic for Plaintiff was testimony regarding the “red stone seam” that sits on top of the coal owned by Plaintiff (Tr. 

at 257-59; see also Exhibit 28). Mr. Simonetti testified that the red stone seam overlies the Pittsburgh seam, i.e. the Plaintiff’s seam. 

The witness testified that, in order for Plaintiff to surface mine the property, he would need to also obtain permission to surface 

mine the red stone seam in which Plaintiff has no ownership interest. (Tr. at 260). 

B. Regarding the Fitzmartin case: 

Plaintiff maintains there are no permanent improvements or buildings on the subject property, no railroad lines, no public highways 

or any improvements of any kind that would be affected by the proposed surface mining. Plaintiff relies heavily on the 

Fitzmartin case. The “narrow question” involved in Fitzmartin was: did the reservation of mineral rights in the several deeds of 

conveyance of that particular tract of land give the defendants, the lessees of the mineral rights, the right to remove coal and other 

minerals from the land of the plaintiff by the open pit or strip mining method, or were they restricted to shaft or deep mining? See 

Fitzmartin, 102 A.2d 893, 894. 

As in the instant case, the deed in Fitzmartin, did not clearly set forth the rights of the parties. “Where a deed or agreement or 

reservation therein is obscure or ambiguous, the intention of the parties is to be ascertained in each instance not only from the language 

of the entire written instrument there in question, but also from a consideration of the subject matter and of the surrounding 

circumstances.” (Id., string cite omitted). 

The courts of this Commonwealth have routinely attempted to give effect to the reasonable intent of the parties at the time of 

conveyance when determining the rights to mine coal under a particular grant. Heidt v. Aughenbaugh Coal Company, 176 A.2d 400, 

401 (Pa. 1962). It is the interpretation of the words of the document which determines whether the method of removing the coal 

may be by strip mining or another method. See, Mt. Carmel Coal Co. v. M.A. Hanna Co., 89 A.2d 508, 510 (Pa. 1952)). 

Fitzmartin advanced a four (4) factor test to determine whether strip mining may be an appropriate method of extraction of 

subsurface minerals when the deed is silent as to the acceptable method of mining: (1) the general language in the grant is broad 

enough to include strip mining, (2) there is no prohibition against strip mining, nor limitation to strip mining, (3) the owner clearly 

has the right to mine all the coal, together with a release of the right of support and all damages to the surface, and (4) the nature 

of the land is unimproved terrain. 

Plaintiff contends that the four (4) factors considered by the Supreme Court in Fitzmartin are met in this case. Plaintiff summarizes 

that case to stand for the general proposition that ownership of a general grant of coal together with an absence of any 

obligation of surface support, without language to the contrary, accords a right to strip mine. Based upon that proposition, 

Plaintiff asserts that there is no question as to his “right to enter onto the subject property, explore the subject tract for the location 

and quantity of the said coal, and conduct surface mining operations on said tract, all without the consent of the Defendant 

surface owner.”

april 23, 2010 page 151 

Plaintiff maintains, consistent with the fourth factor of Fitzmartin, that the subject land is unimproved, differentiating the 

land from that described in Rochez Bros, Inc. v. Duricka. 7 In Rochez Bros., the Supreme Court denied the mineral estate 

owner the right to strip mine the property based in part upon the fact that the property was agricultural and contained rich 

soil, ideally fit for farming. Plaintiff maintains that the subject property is more akin to the property in Commonwealth v. 

Fisher, 8 where the tract in question was unimproved mountain land and the Supreme Court ruled that the property could be 

strip mined. 

Perhaps Plaintiff’s most accurate assertion is that, “the case law interpreting documents regarding coal grants and the right to 

engage in surface/strip mining is fact specific…and that the “Pennsylvania appellate courts have issued decisions that are seemingly 

in conflict, but, upon close reading, are determined based upon the facts of the particular case.” (Brief of Plaintiff below 

Regarding Coal Rights at p. 20). This case is no different. Based on the facts of this case, as applied to the body of law in this area, 

the Court found that the Plaintiff failed to prove compliance with factor one (1) and four (4). 

At the time of the original conveyances, strip mining was not employed in the Commonwealth of Pennsylvania or in the 

Allegheny County area. Further, when there is no expressed intent in the deed concerning the means by which coal is to be mined, 

neither strip mining nor deep mining being specifically mentioned, the deed merely referring to ‘mining’ in general, the intent of 

the parties must therefore be implied. Stewart v. Chernicky, 266 A.2d 259, 263 (Pa. 1970) 

In this case, the language of the grant states, “without being required to provide for the support over the overlying strata or surface 

and without being liable for any injury to same,” this language has been held to refer specifically to deep mining operations. 

See, Rochez Bros., 97 A.2d 825, 826. This Court cannot find that the grantor contemplated its property being decimated by bulldozers 

and steam shovels, resulting in a “maximum of damage” and forever changing the landscape of the property by a grant method 

that was not then prevalent in this area. 

As to the fourth factor; the Court did not find the surface of said property to be “unimproved terrain.” The County’s Director of 

Parks, Andrew Baechle, credibly testified as to a 2002 study in which the property in question was selected as a “biological zone 

to be operated as open space reserve.” (Tr. at 119-121). Mr. Baechle went on to testify that if Plaintiff were to be permitted to strip 

mine the property, the property would not be restored to its current state for one hundred (100) years. (Tr. at 126). Furthermore, 

the County master plan recommends that this area be preserved as a biological zone, which is the home of thirty (30) species of 

plants and twenty-seven (27) species of birds. (Tr. at 122-26). 

Although such information was very powerful and thought provoking, perhaps more compelling in the context of this litigation 

was the fact that there are walking trails which are designated on maps provided by the County. In addition bike trails transverse 

the subject tract of land. (Tr. at 126). Mr. Baechle testified that he actually has ridden his bicycle on the trails (Tr. at 154). 

The County’s argument in this respect is bolstered by a grant of Two Hundred Fifty Thousand Dollars ($250,000) the County 

received to improve and expand the trails and the County’s intention to further utilize the property. (Tr. at 127). Additionally, the 

subject property is surrounded by an amphitheater, a game reserve that houses South Park’s famous buffalo, a skateboard park, 

tennis courts, a wave pool and a BMX track that is regarded as the number one track of this kind in the nation over the past three 

(3) years. (Tr. at 127-28). 

The instant case is easily distinguishable from Fitzmartin. The Fitzmartin Court found significant the fact that the surface of 

said property was uninhabited, unimproved, mountainous terrain. This Court finds the property more akin to Rochez Bros. than 

Fitzmartin and adopts the County’s description of the subject property, in that, “South Park is part of the County’s Regional Park 

System utilized by residents of the County for a vast array of recreational purposes. It is neither uninhabited nor unimproved and 

is a rustic oasis in a heavily urbanized county.” 

C. Regarding the Effect of the Prior Litigation: 

Plaintiff takes exception with this Court’s failure to consider or recognize the prior litigation, settlement and consent in the 

chain of title of the coal subject to this action taking place in the late 1970s. Plaintiff is mistaken; this Court considered this prior 

litigation but found it unfavorable to Plaintiff. This Court found significant that Consol, which granted rights to Fred Fiore in the 

1985 deed, stated through that company’s then vice president, Thomas G. Norris, stated that any entity planning to surface-mine 

the subject coal tract must obtain surface mining rights from the county. (Tr. at 219). 

This Court finds it difficult to accept that Consol, a company actively engaged in the mining business would find it necessary to 

obtain Allegheny County’s consent to surface mine when no such consent was required. This Court finds further difficulty in 

accepting the fact that Consol would sell said rights for Five Thousand Dollars ($5,000) when the alleged true value is over One 

Hundred Million Dollars ($100,000,000, present values accounted for). 

D. General Discussion 

Generally speaking, although this Court’s ultimate decision is not predicated on this point, this Court finds that Plaintiff’s plan 

for strip mining the subject property is further flawed by an inability to obtain the proper permits necessary to begin his mining 

operation. Both testimonial and documentary evidence was introduced asserting that Plaintiff would not be able to obtain the mandated 

government permits to commence a surface mining operation on the subject property. In this connection, Defendant called 

Thomas G. Simonetti, a senior engineer employed by the Boyd Company whose position since 1989 was to examine permitting 

issues as they relate to surface mining. Mr. Simonetti credibly testified as to his familiarity with Pennsylvania’s Surface Mining 

Conservation and Reclamation Act, as well as the federal counterpart, the Federal Surface Mine Control and Reclamation Act. (Tr. 

at 230-39). 

Mr. Simonetti testified that “the [proposed] surface mining activities are a very disruptive process. And it would certainly 

change the characteristics of this Sleepy Hollow area and its current use in a public park.” (Tr. at 242). The witness was asked to 

turn his attention to 25 Pa. Code Section 86.102, relating to where mining is prohibited or limited. 9 The regulations involve the prohibitions 

and limitations of mining where publicly owned parks would be adversely affected. (Tr. at 243). Said limitations would 

require permission not only from Allegheny County, the owner having jurisdiction over the park, but also from the regulatory 

authority, the Department of Environmental Protection (hereinafter “DEP”). Further, in advance of filing an application for a surface 

mining permit, Plaintiff would need to file a Notice of Intent to Explore with the DEP. (Tr., at 244; See also, Exhibits 11B, 16). 

At the time of this litigation, none of the requisite notices or applications had been submitted. It must also be noted that the municipality 

in which the subject coal is located, South Park Township, has an Ordinance prohibiting mining. 

Additionally, and apart from all of the above, Pennsylvania law is rich with cases that seem to militate against Plaintiff Fiore’s 

position:


A party engaged in strip mining must either own (or lease from one who owns) both the estate of coal and the surface 

estate Or own (or lease from one who owns) a coal estate which includes the right to employ the strip mining method, for 

such a process entails the actual stripping away of the outer covering of the terrain. 

Owens v. Thompson, 385 Pa. 506, 123 A.2d 408 (1956) 

And this Court does not wish to interfere with its use or hinder its economic viability. Yet we cannot help but realize 

that ‘in view of the surface violence, destruction and disfiguration which inevitably attend strip or open mining, * * * 

no land owner would lightly or casually grant strip mining rights, nor would any purchaser of land treat lightly any 

reservation of mining rights which would permit the grantor or his assignee to come upon his land and turn it into a 

battleground with strip mining’…. Therefore, ‘the burden rests upon him who seeks to assert the right to destroy or 

injure the surface’…to show some positive indication that the parties to the deed agreed to authorize practices which 

may result in these consequences. Particularly is this so where such operations were not common at the time the deed 

was executed. 

What the parties manifestly intended was that the coal was to be removed by the method, then known, and accepted as 

usual and commonplace. This was vertical tunnel, or shaft mining. Needless to say, the nature and consequence of strip 

mining are vastly different. If what the defendant asserts was intended, the deed should have clearly said so. If any such 

rights were intended and reserved, then every public and private building in the anthracite coal region could be demolished, 

the surface ravaged, and the entire area leveled in ruin and desolation. Surely, no court of law should construe a 

writing to effectuate such consequences, unless the terms thereof are unmistakable and beyond doubt. 

Wilkes-Barre Twp. School Dist. v. Corgan, 170 A.2d 97, 99-100, (Pa. 1961; internal citations omitted) 

The specific question presented is whether the reservations quoted above allow the plaintiff company to remove coal 

through strip mining methods or whether it is restricted to shaft mining. Strip mining, as the term indicates, is the 

stripping away of the earth surface and the horizontal withdrawal of the mineral deposits at hand. Shaft mining 

involves the sinking of a vertical shaft into the ground and the developing from that point of tunnels and galleries which 

serve as vantage points from which to withdraw and lift the coal deposits through the shaft. Shaft mining does a minimum 

of damage to the outer crust of the earth; strip mining does a maximum of damage. Strip mining is effected 

through steam shovels and bulldozers which turn up the top layer of the earth as easily as a can opener lays bare the 

contents of a box of sardines. 

It is obvious, in view of the surface violence, destruction and disfiguration which inevitably attend strip or open mining, 

that no landowner would lightly or casually grant strip mining rights, nor would any purchaser of land treat lightly any 

reservation of mining rights which would permit the grantor or his assignee to come upon his land and turn it into a battleground 

with strip mining. 

There is nothing in the two quoted reservations which would cause the defendants to assume that they had contracted to 

allow steam shovels and bulldozers to invade their farm. In the 2.25 acres tract, all that is conveyed is the ‘* * * right to 

enter in, upon and under the lands * * * for the purpose of * * * mining.’ This phraseology contains no right to remove the 

overlying surface. If the grant was intended to include strip mining privileges, the immunity from responsibility for ‘damages 

to the surface * * * or the failure to provide support for the overlying strata’ would be meaningless because strip 

mining encompasses the very tearing away of the overlying strata. 

Rochez Bros., Inc., supra, at 826 

IV. Conclusion 

This Court granted Plaintiff an evidentiary hearing, argument and a view of the subject property. Nothing more could have been 

done to accommodate Plaintiff. After all of same, it seems abundantly clear to this Court that the Plaintiff does not possess the right 

to strip mine those portions of the Pittsburgh Seam that he owns underlying the Defendant’s public park. For the reasons aforementioned, 

this Court respectfully requests the Commonwealth Court of Pennsylvania to affirm this Court’s Memorandum and 

Order dated August 17, 2009. 

BY THE COURT: 

/s/McCarthy, J. and Della Vecchia, J. 

Dated this 22nd day of December 2009 

1 The Plaintiff had filed another action at GD 08-21519, which he subsequently discontinued. The County has filed Preliminary 

Objections to both pending actions. 

2 Judge Della Vecchia is the former Recorder of Deeds of Allegheny County and Judge McCarthy is the former Chairman of the 

Board of Viewers of Allegheny County. 

3 The Court questioned whether or not the letter from the County’s Chief Executive in fact denied Fiore permission to enter or 

required Fiore to perform certain acts precedent to entering on the subject property. (Tr. at 82). 

4 This Court did not agree to rule on the Preliminary Objections generally, but merely to opine as to Plaintiff’s right to strip mine 

under the subject deeds. 

5 Whether or not this matter is properly before the Commonwealth Court is for that Court to decide. 

6 As of this writing, the Court has not been provided with any additional matters complained of. 

7 97 A.2d 825 (Pa. 1953) 

8 72 A.2d 568 (Pa. 1950) 

9 The approximate federal counterpart may be found at 30 CFR Section 761.11

april 23, 2010 page 153 

3D Amusements Inc. v. Celebrations and More, Inc. 

Petition to Open Judgment Entered by Confession—Breach of Contract—Burden of Proof 

1. A clerical error resulting in an incorrect amount due in a confessed judgment can simply be corrected where the amount due 

is undisputed. 

2. The defendant failed to adduce sufficient evidence that the plaintiff had breached the contract sufficient to create a question 

of fact for a jury in order to justify the opening of the confessed judgment. Specifically, the defendant did not demonstrate that his 

late notice of termination of a contract to the plaintiff was reasonable under the circumstances nor did he show that the plaintiff 

did not suffer prejudice from the late notice. 

(Mary Long) 

Michael F. Fives for Plaintiff. 

M. Lawrence Shields III for Defendant. 


MEMORANDUM IN SUPPORT OF ORDER 

Friedman, J., December 30, 2009—Plaintiff confessed judgment against Defendant for the breach of a contract between them 

that allegedly was renewed for one year because Defendant did not properly terminate it. 

Defendant filed a Petition asking this Court to either strike the judgment or open it. The basis for striking the judgment is the 

discrepancy between the amount stated as being due in the Complaint and the amount of the judgment actually entered. Defendant 

contends that this is fatal. The amount is $13,447.89 in the Complaint; the amount of the judgment confessed is $15,350.37. The discrepancy 

came from a clerical or mathematical error which Plaintiff asks that we correct. Defendant asks in the alternative that 

the judgment be opened if not stricken and that the error be corrected by that route. We conclude that an incorrect amount which 

comes from obvious overreaching would require the judgment be stricken, but an incorrect amount that comes, as is undisputed 

here, from a clerical mistake and which is undisputed requires only that the mistake be corrected. 

This Memorandum will deal primarily with whether or not the judgment should be opened for other reasons. In order to support 

its Petition to Open, Defendant took the depositions of Lawrence Daurora, an owner and officer of Plaintiff, and Chris Scaff, 

an owner and officer of Defendant. Both depositions were taken the same day, Mr. Daurora’s first and then Mr. Scaff’s. 

The evidence submitted by Defendant, taken in the light most favorable to Defendant, shows the following scenario. Defendant, 

through Arthur Scaff, the father of Chris Scaff, entered into a contract with Plaintiff dated October 10, 2003. A few years later, 

Arthur contracted meningitis and became disabled. He has not been declared incompetent, but his ability to understand and 

remember numbers is said to have been impaired. He was not deposed. In June 2008, Chris Scaff began reviewing the calculation 

of the commissions Plaintiff was paying Defendant from the cash collections Plaintiff made every two weeks. He did not understand 

why a particular amount was deducted from the bi-weekly gross. He believed the contract did not call for that and felt that 

Plaintiff was cheating Defendant. He raised this with Mr. Daurora on July 2, 2008 and told him Defendant was going to stop using 

Plaintiff’s machines and would buy its own. Mr. Daurora said Defendant had made this threat not to renew before, prior to entering 

into the instant five-year contract dated October 10, 2003, so he told Chris Staff to be sure to follow the contract if that ended 

up being what Defendant wanted to do. (The contract provided, in 4B, that it would renew for an additional year automatically 

unless Defendant sent, by registered mail, its written notice of intent not to renew at least 90 days before October 10, 2008, i.e. by 

July 10, 2008.) 

Defendant sent Plaintiff a letter on July 16, 2008, stating it was “no longer going to deal with” Plaintiff. The implication is that 

it also did not wish to renew. The reason given was that it regarded Plaintiff as “dishonest.” Mr. Daurora’s testimony was he does 

not have that letter in his file and does not recall seeing it before the date of his deposition. Despite the gist of Mr. Daurora’s testimony 

being that he did not have such a letter, Defendant adduced no evidence of the letter being mailed. There is no contention 

that it was sent before July 10th nor that it was sent by registered mail. In early August, Defendant sent Plaintiff another letter, 

this one by certified mail, telling it to remove the various equipment that Plaintiff owned and Defendant leased per the contract. 

Defendant says, in effect, that this pre-expiration action is not a breach of the contract but rather was a response to prior 

breaches by Plaintiff. Defendant also argues that it has adduced sufficient evidence of actual notice before the 90-day period of its 

intent not to renew and that Plaintiff was not entitled to “renew” the contract for another year. 

In its brief, Defendant contends that it has three meritorious defenses to Plaintiff’s claim, paraphrased below: 

1. That Plaintiff is the breaching party by not paying $5,000, so that Defendant was justified in canceling the contract and 

demanding that Plaintiff remove its equipment. 

2. That Plaintiff is the breaching party by failing to pay Defendant the correct amount of commissions during the term of 

the contract, again thereby justifying Defendant’s cancellation of the contract. 

3. That Defendant had lawfully terminated the contract prior to asking Plaintiff to remove his equipment. 

It is undisputed that the $5,000 payment to Defendant had been promised, however, Defendant has not produced sufficient evidence 

of this alleged non-payment to raise a jury question. 1 

Defendant’s deposition of Mr. Daurora elicited evidence that Plaintiff had paid Defendant in full via the father, Arthur Scaff, 

who had run Defendant until either 2005 or 2006 when he contracted meningitis. Defendant has adduced no evidence other than 

the unsupported suspicion of Chris Scaff that the $5,000 was not paid to Defendant. Defendant has the burden of adducing sufficient 

evidence to require submission to a jury. Here, a jury would have to speculate. 

Similarly, Defendant has adduced no evidence that supports Chris Scaff’s suspicion of the miscalculation of commissions. 

Daurora Deposition Exhibit 1 is the relevant contract. Paragraph 3B clearly sets forth that “Touchtunes digital downloading jukebox 

systems have an $80.00 per week guarantee for company [Plaintiff] and commissions paid to Proprietor [Defendant] will be 

40% after the minimum guarantee is met.” 

Chris Scaff contends that the contract, taken literally, does not permit an initial deduction before Defendant’s commission is calculated. 

This is incorrect, since 3B does call for that, as mentioned above. However, the evidence Defendant adduced from Mr. 

Daurora suggests that the written contract was modified orally by himself and Arthur Scaff, whenever circumstances changed during 

the term of the instant contract. No evidence was adduced from Arthur Scaff regarding Mr. Daurora’s version of the oral


changes. In any case, Defendant has failed to raise a jury question regarding the correct method of calculation. At best, it has 

offered the unsupported conjecture of Chris Scaff, with whom Plaintiff never dealt until July 2, 2008, according to the evidence 

presented. 

Since those two alleged breaches are what Defendant says justified the cancellation, that third “defense” must also fail. 

Defendant says there are at least five questions to be submitted to a jury; although our conclusions regarding the insufficiency 

of evidence makes these questions moot, we will nevertheless discuss them, albeit somewhat repetitively. The questions Defendant 

says are raised are quoted below from its brief: 

1. Did the Defendant validly terminate the Agreement on July 2, 2008? 

2. Did the Defendant validly terminate the Agreement on July 16, 2008? 

3. What, if any, actual damage did Plaintiff suffer as a result of written notice not being given by Defendant to Plaintiff 

on or before July 11, 2008? 

4. Did the Plaintiff change its position to its detriment as a result of said notice not being given by Defendant to Plaintiff 

on or before July 11, 2008? 

5. Is it unconscionable to give effect to the automatic renewal provision of the Agreement on the basis that termination 

notice was untimely under the facts and circumstances of this case? 

Defendant has adduced no evidence to support a jury finding in its favor to any of the questions; in particular, it has not produced 

more than one person’s speculation regarding the alleged breaches by Plaintiff. It has produced no evidence to suggest that 

Plaintiff suffered no harm as the result of the late written notice of termination. The burden at this stage is not on Plaintiff to do 

anything. It is Defendant that must come forward with evidence, if only to rebut the presumption that there must have been a business 

reason for the 90-day notice. We cannot presume the 90-day notice provision is unconscionable per se, and Defendant has not 

produced any evidence of circumstances here that would make enforcement of the notice provision unconscionable. 

Defendant cites to Music Inc. v. Henry B. Klein Co., 213 Pa.Super. 182, 245 A.2d 650 (1968) for the proposition that strict enforcement 

of a notice period is not required where time was not made of the essence in the contract. Defendant’s reliance is misplaced. 

Music Inc. involved an appeal of a judgment entered after a trial, not a petition to open a judgment entered by confession. The burdens 

of adducing evidence in those two situations are vastly different. Here it is solely Defendant who must adduce sufficient evidence 

to raise a jury question. The standard set forth in Music, Inc., regarding notice provisions such as that at issue here, is a twopronged 

one, that “a finding [is permitted] that a termination notice is sufficient even though delivered later than the period 

specified in the contract when the terminating party acted reasonably under the circumstances and there is no demonstrable prejudice 

resulting from the delayed notice.” 

Here, Defendant has adduced no evidence to suggest it acted reasonably under the circumstances nor has it adduced evidence 

that Plaintiff did not suffer any prejudice. At most, Defendant produced contradictory testimony from one of its owners, Chris 

Scaff, who says at one point in his deposition that he never saw the contract until after Plaintiff sent him a copy after the cancellation, 

and, at another point, that he read the contract and could not see where it allowed the deduction before commissions, and 

that he therefore concluded that Plaintiff was cheating. Regardless of when he himself actually read the contract, the testimony of 

Chris Scaff does not show that he was reasonable in sending the written notice on the 16th of July (by ordinary mail) or the 11th 

of August (by certified mail). Notice was due July 10th. The first prong of the Music Inc. test, reasonableness of the Defendant, is 

clearly not met. 

Similarly, there is no evidence at all regarding the second prong, lack of prejudice to Plaintiff. Lawrence Daurora for Plaintiff 

admits that Chris Scaff told him on July 2, 2008 that he was not satisfied with Plaintiff’s calculation of the commissions Defendant 

was entitled to and that Defendant was not going to use Plaintiff’s services in the future. However, Mr. Daurora also indicated 

that Defendant had made similar threats in the past. Mr. Daurora further testified that he told Chris Scaff to be sure to cancel 

properly under the contract. Chris Scaff’s response in his own testimony was that he didn’t know that notice of non-renewal had 

to be in writing. His deposition was taken immediately after Mr. Daurora’s and, in that context, his failure to deny Mr. Daurora’s 

version of that aspect of the conversation is an implicit admission that he was reminded to check the contract if he wanted to cancel 

properly. 

Defendant says it is entitled to have a jury evaluate Plaintiff’s credibility. However, it is Defendant, not Plaintiff, who, in order 

to open a judgment, has to adduce evidence to contradict Plaintiff’s statement. That statement is part of Defendant’s evidence here. 

Defendant had the burden to produce evidence that untimely notice was nevertheless sufficient notice in the circumstances. The 

circumstances shown by the evidence Defendant adduced include the unrebutted and uncontradicted “fact” that Defendant had 

made a similar threat at the earlier renewal period and had then carried it out by sending notice as required by the contract, after 

which Defendant renewed anyway. Defendant does not contest this so we have no jury question here either. 

We therefore must deny both the Petition to Strike and the Petition to Open. However, we grant the Plaintiff’s request to correct 

the amount of the judgment. See Order filed herewith. 

BY THE COURT: 

/s/Friedman, J. 

Dated: December 30, 2009 

ORDER OF COURT 

AND NOW, to-wit, this 30th day of December 2009, it is hereby ORDERED that Defendant’s Petition to Strike and Petition to 

Open are DENIED for the reasons set forth in the accompanying Memorandum in Support of Order. Plaintiff’s request to correct 

the amount of the judgment to $13,447.89 is hereby GRANTED, and the Department of Court Records, Civil Division is directed 

to mark the docket accordingly. 

BY THE COURT: 

/s/Friedman, J. 

1 The $5,000 seems to have been an incentive from Plaintiff to Defendant to renew on an earlier occasion after Defendant had properly 

notified Plaintiff of its intent not to renew. Its actual purpose is immaterial as both sides agree it was promised.

april 23, 2010 page 155 

Neal R. Grove v. 

Robert L. Smith, et al. 

Breach of Fiduciary Duty—Gist of the Action Doctrine—Extrinsic and Parol Evidence—Evidence of Motive 

1. A mere coalescence of votes of individual stockholders with equal standing whose shares cumulatively constitute a majority 

is not necessarily sufficient to suggest an abuse of controlling influence that is the essence of a breach of fiduciary obligations owed 

to a minority shareholder. 

2. Because Plaintiffs claim of breach of fiduciary duty is premised solely upon the assertion that the defendants breached the 

Stock Restriction Agreement (“SRA”), his argument presupposes a breach of the SRA by defendants. The gist of the action doctrine 

precludes recasting breach of contract claims into tort actions. 

3. Individual defendants barred supervision of a sales territory by an employee of a competitor and rejected the nomination of 

a Qualified Replacement Shareholder (“QRS”) based upon concerns of alienation of, or possible litigation by, a customer was sufficient 

to defeat claim of breach of fiduciary duty. 

4. The contract language presented an ambiguity and the court acquired extrinsic or parol evidence to assist in resolving the 

ambiguity. The Court, as a matter of law, determines the existence of an ambiguity and interprets the contract. The resolution of 

conflicting parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact. 

5. The goal in contract law is not to punish the breaching party, but to make the nonbreaching party whole; proof of a financial 

motive or even an illicit motive will not enlarge damages. Therefore, the Court did not err in denying the admission of evidence of 

the compensation paid to the individual defendants and the salesman who replaced Plaintiff. 


Stephen D. Wicks for Plaintiff. 

Thomas M. Castello for Defendant. 


OPINION 

McCarthy, M., November 23, 2009—Plaintiff, Neal R. Grove, appeals in this matter following a judgment taken on a jury verdict 

that found against Grove on a breach of contract claim brought by Grove against the defendants. Grove and the three (3) individual 

defendants are the original and only shareholders of the corporate defendant, Sales Marketing Group. Because all shareholders 

own equal shares of the common stock of Sales Marketing Group, the individual defendants, cumulatively, possess a majority 

of the common stock; Grove asserts that, in this instance, he is a minority shareholder. 

The three (3) individual defendants are also employees of the Sales Marketing Group. Grove is a former employee. The corporation 

is engaged in independent representation of electrical manufacturers, cultivating sales for various manufacturing lines. As 

an employee of the corporation, Grove managed a sales territory in central Pennsylvania. 

On November 15, 1994, at the inception of the business, all four (4) shareholders, together with the corporation, entered into a 

Stock Restriction Agreement (“SRA”). Article VI of the SRA addresses the matter of a shareholder terminating employment with 

Sales Marketing Group, whether by reason of permanent disability or by reason of a shareholder’s election to terminate following 

completion of ten (10) years of employment with Sales Marketing Group. Article VI states, in part: 

VI. Disability and Normal Retirement 

A. In the event a Shareholder terminates his employment with the Corporation due to said Shareholder’s permanent disability 

or following his completion of ten (10) years of employment with the Corporation and/or its predecessor entity, the 

terminated Shareholder shall be permitted to sell his Stock to a “Qualified Replacement Shareholder” (QRS) pursuant to 

the following terms and conditions: 

1. A QRS shall be an individual who has been approved to assume the duties of the terminated Shareholder by all of 

the remaining Shareholders, whose approval shall not be unreasonably withheld. 

2. The QRS and the terminated Shareholder shall enter into a contract for the sale of the terminated Shareholder’s 

Stock. The contract terms shall provide for a division of the terminated Shareholder’s future compensation from the 

Corporation between the terminated Shareholder and the QRS. It is intended that the division of compensation shall 

continue for five (5) years. The contract must be approved by all of the remaining Shareholders, whose approval shall 

not be unreasonably withheld. The terminated Shareholder shall be responsible for the supervision of the QRS and for 

transferring responsibility for his accounts to the QRS. 

In April 2006, Defendant Robert L. Smith, the President of Sales Marketing Group, received information from Grove that another 

employer, Hubbell Corporation, a competitor of Sales Marketing Group, had made an offer of employment to Grove. Shortly 

thereafter, and effective May 31, 2006, Grove terminated his employment with Sales Marketing Group. On June 13, 2006, Grove 

submitted the name of Justin Irvin to the individual defendants for approval as a Qualified Replacement Shareholder (“QRS”). 

Following an interview of Irvin, the individual defendants declined to approve or disapprove Irvin as a QRS. Subsequently, by 

means of an unsigned document appearing on corporate letterhead and dated July 17, 2006, Grove learned of specific reservations 

regarding approval of Irvin as a QRS. Among those expressed reservations was that Grove’s employment by a competitor would 

preclude supervision of Irvin by Grove, that Irvin lacked pertinent experience and that, because Irvin was a newer employee of a 

current customer of Sales Marketing Group and because that customer had contributed significantly toward Irvin’s college education, 

“repercussions” might result from acceptance of Irvin as a QSR. 

Also on or about July 17, 2006, Grove received a document setting forth “Supervision Requirements” to be observed by him in 

connection with the acceptance of a QSR. Grove refused to accept those supervision requirements. Thereafter, by letter dated 

October 5, 2006, Attorney Richard Brabender 1 advised plaintiff’s counsel that the individual defendants regarded “the provisions 

of Article VI [of the SRA] regarding normal retirement [as] irrelevant because Mr. Grove did not retire.” (Complaint, Exhibit B). 

Subsequently, negotiations for alternative evaluations having failed, defendants deemed Grove to be entitled solely to the book


value of his shares in the corporation pursuant to provisions of the SRA relating to termination of employment for reasons other 

than retirement or disability. 

Grove thereafter filed a two-count complaint in civil action asserting, as to all defendants, breach of contract and, as to the 

individual defendants only, breach of fiduciary duty. The breach of contract action was predicated upon an alleged unreasonable 

failure to approve as a QRS the individual with whom plaintiff had purportedly contracted to sell his stock. (Complaint, at 

Paragraphs 25-30). The breach of fiduciary duty count averred that the individual defendants, as majority shareholders, owed a 

fiduciary obligation to Grove and that, “as a result of their desire to reduce the number of owners in the corporation and secure 

for themselves a greater share of the profits,” those defendants failed to comply with the terms of Article VI of the SRA. 

(Complaint, at 33-34) 

The matter eventually proceeded to trial before a jury. At the conclusion of plaintiff’s case, upon the motion of defendants, the 

Court dismissed the claim for breach of fiduciary duty. At the conclusion of all testimony and argument, the jury received a verdict 

slip jointly approved by the parties, and, following deliberations, found against Grove on the breach of contract claim. Grove 

now appeals, asserting that the Court erred in the dismissal of the claim for breach of fiduciary duty, in refusing certain of Grove’s 

proposed points for charge, and in certain evidentiary rulings that, Grove maintains, affected the jury’s construction of the SRA, 

resulting in an improper verdict. 

Breach of Fiduciary Duty 

Because majority shareholders occupy a quasi-fiduciary relation toward a minority shareholder, they may not use their power 

in such a way as to exclude the minority from a proper share of the benefits accruing from the enterprise. See, Ferber v. American 

Lamp Corp., 503 Pa. 489, 469 A.2d 1046 (1983); Hornsby v. Lohmeyer, 364 Pa. 271, 275; 72 A.2d 294, 298 (1950). This does not mean 

that majority shareholders may never act in their own interest. When, however, such shareholders act in their own interest, their 

actions must be also in the best interest of all shareholders and the corporation. Weisbecker v. Hosiery Wide Patents, Inc., 356 Pa. 

244, 251, 258, 51 A.2d 811, 814, 817 (1947). Grove contends in this matter that the individual defendants abused their majority 

standing “by failing to comply with the provisions of Article VI [of the SRA] which permit Plaintiff to sell his shares in the corporation 

to the QRS.” Complaint at 26. 

The SRA requires unanimous approval of remaining shareholders before any QSR proposed by a departing shareholder will be 

accepted. Grove appears to presume that, because Irvin was not approved as a QSR, the individual defendants acted in concert to 

reject Irvin, to the detriment of Grove. A mere coalescence of votes of individual stockholders with equal standing whose shares 

cumulatively constitute a majority is not necessarily sufficient to suggest an abuse of controlling influence that is the essence of a 

breach of fiduciary obligations owed to a minority shareholder. A group of shareholders ordinarily cannot use its control over the 

corporation to provide benefits to the majority that are not shared with the minority. However, the record in this case indicated 

neither any past pattern of corporate control by the individual defendants to the exclusion of Grove nor any joint pursuit by them 

in this particular matter of a disparate application of the SRA to Grove. The defendants merely sought to hold Grove to the requirements 

of a contract that they believed that they and Grove, all as equally situated individuals, had crafted and executed at the 

inception of their enterprise, and to which all would be held equally. That Grove disagreed with and was damaged by that construction 

of the SRA in this instance did not convert a contractual dispute into a claim of a breach of a fiduciary relationship. The dispute 

is contractual; the shareholder cannot legitimately complain about discriminatory treatment if he assented to an agreement 

that arguably provided for that treatment. 

Additionally, because Grove’s claim of breach of fiduciary duty is premised solely upon the assertion that the defendants 

breached the SRA, his argument presupposes a breach of the SRA by defendants. In that regard, the SRA being central to the dispute, 

it is difficult to look past the gist of the action doctrine, which precludes recasting breach of contract claims into tort actions. 

Etoll, Inc. v. Elias/Savion Advertising, Inc., 2002 Pa.Super. 347, 811 A.2d 10 (2002). That is particularly so in an instance in which 

the thrust of the breach of fiduciary claim is that the majority unreasonably withheld approval of a proposed QRS, conduct that is 

explicitly addressed by Article VI of the SRA. The gist of the action determines the essential nature of the claims; contract and tort 

actions are distinguished on the basis of the source of the duties allegedly breached. If the complaint essentially alleges a breach of 

duties flowing from an agreement between the parties, the action is contractual in nature; if the duties allegedly breached were of 

a type imposed on members of society as a matter of social policy, and the contract is collateral, the action is essentially tort-based. 

See, Redevelopment Authority of Cambria v. Int’l Insurance Co., 685 A.2d 581, 590 (Pa.Super. 1996); Phico Ins. Co. v. Presbyterian 

Medical Serv. Corp., 444 Pa.Super. 221, 229, 663 A.2d 753, 757 (1995). The contract is hardly collateral to a claim that not only cannot 

exist independently from its terms but also seeks to enforce the very standard of conduct dictated by those terms. 

Defendants, not implausibly, asserted that Article VI restricts sales of a shareholder’s interests to a QRS nominated by that 

shareholder to occasions in which the shareholder retired. “Retirement,” according to the defendants, contemplates both a cessation 

of any active employment and an availability to supervise a QRS candidate pending transfer of responsibility of accounts to 

the QRS. Were it construed otherwise, a withdrawing shareholder might well be placed in the anomalous circumstance of selecting 

and supervising a QRS for Sales Marketing Group while in the employ of a competitor or, indeed, while establishing a competing 

enterprise funded by the proceeds of the sale of stock to a QRS. 2 In fact, among the reservations stated by Sales Marketing 

Group in the July 2006 listing of supervision requirements were both that Grove “is currently employed with a major competitor 

of one of our key Principal Lines” and that, because the proposed QRS was then employed by a customer who had substantially 

funded that individual’s tuition, Sales Marketing Group might reasonably expect “repercussions.” 

Defendants advanced a construction of the disputed contract language that insulates the corporation from sabotage. 

Notwithstanding that that interpretation might also redound to the benefit of each individual defendant and limit the benefits available 

to Grove, the fact remains that the majority acted in a manner they believed to be protective of the corporation. Assuming that 

a breach of fiduciary duty action were not precluded by the strictly contractual nature of Grove’s claim, the fact that the individual 

defendants pursued a course that barred supervision of a sales territory by an employee of a competitor and rejected the nomination 

of a QRS based upon concerns of alienation of, or possible litigation by, a customer is sufficient to defeat the claim. 

Extrinsic and Parol Evidence 

Grove charges that the Court erred in permitting “extrinsic or parol evidence and argument to interpret Article VI.” Where a 

contract is ambiguous and susceptible of more than one reasonable interpretation, the court may receive extrinsic or parol evidence 

to assist in resolving the ambiguity. See, Baney v. Eoute, 784 A.2d 132, 136 (Pa.Super. 2001). 

In this instance, the contract language presents an ambiguity. Article VI, A.2 provides that “[t]he terminated Shareholder shall

april 23, 2010 page 157 

be responsible for the supervision of the QRS…,” but fails to state the meaning or intended application of the term “supervision” 

or otherwise meaningfully restrict that term. Because, under the explicit terms of Article VI A.2 and 3, a successful, completed 

transfer from a terminated shareholder to a QRS cannot be accomplished within a period of less than two (2) years and the division 

of compensation between a terminated shareholder and the QRS extends over a period of five (5) years, the supervision 

requirement is, if nothing else, temporally ambiguous. The ambiguity is patent. 

Further, although Article VI, which sets forth the mechanics of installing a QRS, refers to a “terminated employee,” and, indeed, 

appears to place no restriction upon the meaning of that term, Article VII provides that in all instances “other than death, disability 

or retirement following ten (10) years of employment…the terminated Shareholder shall offer to sell and the Corporation shall 

purchase all of the terminated Shareholder’s Stock.” Because Article VII appears to preclude sale to a QRS except in instances of 

death, permanent disability or retirement, because the meaning of “retirement” is neither defined within the SRA nor ascertainable 

from a reading of that contract, and because the SRA itself provides no adequate means by which to resolve the conflict 

between Article VII and Article VI, there is an ambiguity that requires recourse to extrinsic resources that might lend meaning to 

the parties’ agreement. Indeed, it would have been error for the Court to ignore that patent ambiguity and to fail to acquire evidence 

that might assist the jury in resolving it. Walton v. Philadelphia National Bank, 376 Pa.Super. 329, 545 A.2d 1383 (1988). 

Grove complains, however, that the Court erred in permitting parol evidence that addressed the parties’ intent as to all of Article 

VI rather than solely the meaning of the term “supervision” within that article. Among the specific errors alleged by Grove is that 

the Court allowed defendants to use extrinsic or parol evidence in the form of Plaintiff’s Exhibit 8 for the purpose of defining the 

scope of the supervision requirement in Article VI. Plaintiff’s Exhibit 8 is the October 5, 2006 correspondence from Attorney 

Brabender that is appended as Exhibit B to Grove’s complaint and that communicated defendants’ view that because, among other 

things, Grove had not retired, “[n]ot a single requirement set forth in Article VI of the Stock Restriction Agreement had been met 

by Mr. Grove.” Grove complains, moreover, that the Court erred in permitting the defendants’ use of “the content of Article VII” 

and “pre-contractual discussions with Plaintiff about the intent of [Article VI].” 

The Court, as a matter of law, determines the existence of an ambiguity and interprets the contract. The resolution of conflicting 

parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact. See, Hutchinson v. 

Sunbeam Oil Corp., 513 Pa. 192, 519 A.2d 385 (1986); Lang v. Meske, 2004 Pa.Super. 166, 850 A.2d 737 (2004). Grove contends, in 

effect, that extrinsic evidence that is instructive of the parties’ competing construction of the SRA should be withheld from the jury. 

Grove’s position would deprive the triers of fact of the ability to perform their function. 

Grove further argues that the Court should not have permitted the heading of Article VI of the SRA to enter the record. 

According to Grove, that heading, “Disability and Normal Retirement,” could only serve to mislead and prejudice the jury. The 

jury was expressly cautioned, however, that the heading was not substantive and was instructed that the subject headings of the 

paragraphs and subparagraphs of the SRA served purposes of convenience only and did not affect the construction or interpretation 

of contract language. The jury was to arrive at the intent of the parties based upon what the parties themselves had been aware 

of or had negotiated, viewed and executed. For that reason, the jury was properly exposed to the contract without redaction and 

could consider that contract without engaging in speculation that might attend viewing a censored version. 

Evidence of Motive 

Grove states that the Court erred in denying the admission of evidence of the compensation paid to the individual defendants 

and the salesman who replaced Grove. That evidence had been offered for the purpose of proving a financial motive on the part of 

the individual defendants to frustrate Grove’s effort to sell his stock. 

That the remaining shareholders might benefit financially by foreclosing efforts to install a QRS and effectively expanding their 

respective financial interests in Sales Marketing Group from one-fourth to one-third was evident. All particulars of the advantages 

that might result to the defendants did not need to be explored. Moreover, the goal in contract law is not to punish the breaching 

party, but to make the nonbreaching party whole; proof of a financial motive or even an illicit motive will not enlarge damages. 

Therefore, the motives for breaking a contract are largely immaterial in a dispute that involves purely a breach of contract claim. 

See generally, 22 Am. Jur. 2d Damages §75. 

Jury Instructions 

Grove complains that the Court erred when it denied five (5) proposed jury instructions. More specifically, Item 9 of Grove’s 

“Statement of Matters Complained of on Appeal” states: 

That the Court erred as a matter of law and abused its discretion in denying Plaintiff’s points 4, 5 and 7 in Plaintiff’s 

Proposed Jury Instructions and points 2 through 4 of Plaintiff’s Supplemental Proposed Jury Instructions. 

A review of the trial transcript discloses that Proposed Jury Instruction No. 5 was given, as was Proposed Supplemental Jury 

Instruction No. 4. Of the requested instructions that Grove asserts were improperly refused, it suffices to note that Plaintiff’s 

Proposed Jury Instruction Nos. 4 and 7 and Plaintiff’s Supplemental Proposed Jury Instruction No. 3 find inadequate support in 

the record for the findings of law requested in those instructions. Plaintiff’s Supplemental Proposed Jury Instructions contain two 

(2) instructions numbered as 2, the first of which requests an instruction that the defendants breached the SRA. The determination 

of whether or not a breach occurred was a matter appropriately sent to the jury. The second of the proposed supplemental 

instructions marked as No. 2 read: 

Where there is a question about whether the plaintiff would have succeeded in attaining a prospective business transaction 

in the absence of defendant’s interference, you may, in determining whether the proof meets the requirement of reasonable 

certainty, give due weight to the fact that the question “was made hypothetical by the very wrong” of the defendant. 

Although Pennsylvania courts have accepted Section 774A, Comment b of the Restatement of Torts 2d, from which the proposed 

instruction was taken, it is likely that the proposed instruction as crafted would be confusing, if not indecipherable, to a jury. 

Moreover, the instruction presumes defendants’ commission of tortious interference with a prospective business relationship, a 

presumption contradicted by the record both with respect to whether any tort occurred and whether a sufficiently definite business 

prospect had developed. 

Conclusion 

Grove has failed to demonstrate a prejudicial abuse of discretion in the exclusion or admission of evidence or the charge to the 

jury. The jury, after receiving instructions and considering all that had been presented, was free to determine, as it did, that a breach


of the agreement did not occur. There is nothing of record or in the law that compels setting aside that verdict and granting judgment 

to Grove. 

BY THE COURT: 

/s/McCarthy, J. 

Date: November 23, 2009 

1 Mr. Smith is copied on the correspondence; it is unclear whether Mr. Brabender was functioning as corporate counsel. 

2 Article XXI of the SRA provides: “A terminated Shareholder shall not be restricted from competing with the Corporation following 

his termination of employment with the Corporation.” If “terminated” is not narrowly construed in the manner urged under by 

defendants for purposes of Article VI, then a shareholder may both select and supervise a QRS while competing with the 

Corporation. Although the Court determined that defendants could not argue that working for a competitor would divest a shareholder 

who had completed ten (10) years employment of all interests under the SRA, it did accept defendants’ concerns over a competitor’s 

employee supervising a key employee of the Corporation as an indication that the individual defendants were acting to 

enforce contract terms that they believed were in place and protected the Corporation. 

Mary C. Henderson v. 

UPMC, et al. 

Class Action—Pennsylvania Wage Payment and Collection Law, 43 P.S. §260.1 et seq., Pennsylvania Minimum Wage Act of 1968, 

43 P.S. §333.101, et seq. 

1. UPMC’s Preliminary Objections asserting that it could not be included in class action against Plaintiff’s employer Shadyside 

Hospital because the law did not intend employer to include a parent company were overruled. 

2. The court found that, although the definition of employer did not include the word parent, in all likelihood, the Legislature 

did not include the parent of a subsidiary within the definition because it did not intend to impose liability on a parent that exercised 

no control over the manner in which employees of a subsidiary would be compensated. 

3. The purpose of the Wage Payment Law is furthered by defining the term employer to reach the entity that allegedly made the 

decisions that resulted in employees not being paid for work performed. 

4. UPMC is covered by the Minimum Wage Act even though it does not directly employ Plaintiff, since employer is defined to 

include any person acting “indirectly, in the interest of an employer in relation to any employee.” 43 P.S. §333.103 (g). 

(Lynn E. MacBeth) 

Joseph N. Kravec, Jr., John C. Evans, Gary F. Lynch, R. Bruce Carlson, Stephanie K. Goldin, Paul A. Lagnese, James M. Pietz, and 

Ellen M. Doyle for Plaintiff. 

John J. Myers and Mariah L. Lewis for Defendants. 


OPINION AND ORDER OF COURT 

Wettick, Jr., J., February 22, 2010—This is a class action brought by a nurse working at UPMC Presbyterian Shadyside 

(“Shadyside Hospital”) to recover money for alleged uncompensated work that she was required to perform. Defendants are 

UPMC and eleven hospitals, including the hospital (Shadyside Hospital) where Ms. Henderson works. 

The complaint alleges that UPMC is a healthcare system that includes 20 hospitals, eleven of which are named defendants in 

this lawsuit. UPMC is the parent company of each of the eleven hospitals. 

Plaintiff’s claims are based on the Pennsylvania Wage Payment and Collection Law, 43 P.S. §260.1 et seq., the Pennsylvania 

Minimum Wage Act of 1968, 43 P.S. §333.101 et seq., and Pennsylvania common law. 

The preliminary objections of UPMC seeking dismissal of plaintiff’s claims against UPMC based on the Wage Payment and 

Collection Law and the Minimum Wage Act are the subject of this Opinion and Order of Court. 1 

Under the Wage Payment Law, every employer is required to pay wages within certain periods of time (43 P.S. §260.3). Employees 

may sue to recover unpaid wages and counsel fees in any common pleas court (43 P.S. §260.9a). In certain circumstances, the employee 

may also recover liquidated damages in an amount equal to twenty-five percent of the total amount of unpaid wages (43 P.S. §260.10). 

The Wage Payment Law defines the term employer as follows: 

[E]very person, firm, partnership, association, corporation, receiver or other officer of a court of this Commonwealth and 

any agent or officer of any of the above-mentioned classes employing any person in this Commonwealth. 43 P.S. §260.2a. 

The Law does not define the terms employe or employ. 

The Minimum Wage Act establishes minimum wages which every “employer” shall pay to each of his or her employees (43 P.S. 

§333.104(a)). The Minimum Wage Act provides that employees shall be paid for overtime not less than one and one-half times the 

employee’s regular rate (43 P.S. §333.104(c)). The Act also provides for each employer of employees to keep a true and accurate record 

of the hours worked by each employee and the wages paid to each employee (43 P.S. §333.108). Under §333.113, any employee paid 

by his or her employer less than the minimum wages provided for by the Act may recover in a civil action the full amount of the minimum 

wage less the amount actually paid, together with costs and reasonable attorney fees that may be allowed by the court. 

At §333.103(f) (footnote omitted), (g), and (h), the Minimum Wage Act defines the terms employ, employer, and employe as follows: 

(f) “Employ” includes to suffer or to permit to work. 

(g) “Employer” includes any individual, partnership, association, corporation, business trust, or any person or group of

april 23, 2010 page 159 

persons acting, directly or indirectly, in the interest of an employer in relation to any employe. 

(h) “Employe” includes any individual employed by an employer. 

In this Opinion, I consider whether UPMC comes within the above definitions of employer of the Wage Payment Law and/or the 

Minimum Wage Act based solely an allegations that UPMC, as the parent of Shadyside Hospital, required Shadyside Hospital and 

the other defendant hospital entities to adopt the wage policies that are the subject of plaintiffs complaint. 2 

This issue is important to both parties. If plaintiff prevails, she will claim that she is an appropriate class representative for 

employees of each of the defendant hospital entities that allegedly are required to use UPMC wage policies. If UPMC prevails, 

plaintiff can be a class representative for only Shadyside Hospital employees. 

With respect to the Wage Payment Law, plaintiff raises the following argument: The definition of employer includes every corporation 

employing any person and the agent or officer of the corporation employing any person. Third persons cannot impose 

compensation programs. Thus, if UPMC is requiring Shadyside Hospital to adopt UPMC’s compensation program, it is doing so in 

its capacity as an employer. According to plaintiff, there is no reason why there cannot be more than one employer within the meaning 

of the Wage Payment Law where more than one entity is imposing the terms and conditions of plaintiffs employment. 

Alternately, plaintiff contends that when a parent and a subsidiary hold themselves out as separate entities, actions of the parent 

designed to further the interests of the subsidiary may be characterized as actions of an agent of the subsidiary employer. 

UPMC contends that any compensation programs that it requires its hospitals to follow3 are not imposed because of UPMC’s 

status as the employer of persons working for these hospitals or as an agent of the hospitals. To the contrary, such policies are 

imposed because of a parent/subsidiary relationship between UPMC and Shadyside Hospital. If the Legislature had intended for 

the term employer to include the parent of a subsidiary, it would have said so. 

I do not find merit to UPMC’s position that the Legislature never intended to reach a parent corporation because the definition 

of employer does not include the word parent. In all likelihood, the Legislature did not include the parent of a subsidiary within 

the definition of employer because it did not intend to impose liability on a parent that exercised no control over the manner in 

which employees of a subsidiary would be compensated. Compare, Ward v. Whalen, 129 P.L.J. 377, 379 (1981). 

When I consider only the language of the Act, I do not find the positions of either plaintiff or UPMC to be convincing. While the 

Wage Payment Law defines the term employer, the definition is not helpful. It is clear that the term employer is meant to be broader 

than a traditional definition based on the exercise of control. However, the definition provides little guidance as to the outer limits 

of the term employer. Since the language of the Wage Payment Law does not provide clear direction as to whether UPMC is an 

employer under the Wage Payment Law for purposes of challenges to the legality of compensation policies that its hospitals are 

allegedly required to follow, I look to the purpose of the Law. 

Recovery under the Wage Payment Law is not limited to recovery against the immediate corporate employer. Instead, the Law 

also allows recovery against other decision makers whose decisions resulted in unpaid wages. 

In International Association of Theatrical Stage Employees v. Mid-Atlantic Promotions, Inc., 856 A.2d 102, 105 (Pa.Super. 2004), 

the Superior Court explained the reason why the Wage Payment Law is intended to reach decision makers: 

On appeal to this Court, the employee argued the trial court’s finding was contrary to the legislative intent and the plain 

meaning of the WPCL. This Court stated the purpose of the legislature holding officers or agents liable: 

[W]as to subject these persons to liability in the event that a corporation or similar entity failed to make wage payments. 

Its reason for doing so is obvious. Decisions dealing with personnel matters and the expenditure of corporate 

funds are made by corporate officers and it is far more likely that the limited funds of an insolvent corporation will 

be used to pay wages and that a work force will be reduced while the corporation is still capable of meeting its obligations 

to its employees if personal liability is imposed on the persons who make these decisions. 

Id. at 343-44, 568 A.2d 682 (quoting Laborers Combined Funds of Western Pennsylvania v. Mattei, 359 Pa.Super. 399, 518 

A.2d 1296 (1986)). Thus, the Mohney Court reasoned there is no basis for liability under the WPCL, if there is no indication 

that a defendant “exercised a policy-making function in the company.” Id. at 345, 568 A.2d 682 (adopting reasoning 

of Central Pennsylvania Teamsters Pension Fund v. Burten, 634 F.Supp. 128 (E.D.Pa. 1986)). 

If UPMC’s decisions resulted in employees of a subsidiary hospital not receiving wages which the subsidiary hospital should 

have, paid, the purpose of the Law is furthered by defining the term employer to reach this entity which allegedly made decisions 

that resulted in employees not being paid for work performed. If the CEO of Shadyside Hospital made the decision to adopt these 

policies, he or she is liable. There is no reason why the Legislature would not have intended to reach a decision maker that is above 

the CEO. 4 The Law can be, and should be, construed to provide that any person, firm, partnership, association, or corporation making 

decisions resulting in employees not receiving wages to which they are entitled, is, for purposes of these decisions, “employing” 

such persons. 5 

I next consider whether UPMC is covered by the Minimum Wage Act with respect to the mandated policies that are the subject 

of plaintiffs complaint. 

As I stated at page 2, an employee may bring a civil action against his or her employer to recover the full amount of the minimum 

wage less the amount actually paid. Plaintiff contends that the definition of employer (§333.102(g)) reaches UPMC. This definition 

includes any “corporation” or “any person or group of persons acting directly or indirectly in the interest of an employer 

in relation to any employe.” Plaintiff contends that UPMC is “any person” acting “indirectly” in the interest of an employer in relation 

to any employee. 6 

UPMC, on the other hand, focuses upon the definitions of employe (“any individual employed by an employer”) and employ (“to 

suffer or to permit to work”). It appears to contend that the Act only allows an employee, defined as an individual employed by an 

employer, to sue the entity that employed the employee. 

The language supports plaintiff’s position that UPMC is covered by the Minimum Wage Act. Plaintiff is an individual who is 

employed by Shadyside Hospital because only Shadyside Hospital suffers or permits plaintiff to work. Since plaintiff is an employee 

of Shadyside Hospital, she is entitled to bring a civil action against “her employer” which is defined to include any person acting 

“indirectly, in the interest of an employer in relation to any employe.” 43 P.S. §333.103(g) (emphasis added). 

Furthermore, a legislative intent to reach those who have made the decision to pay an employee less than the wage payments 

required under the Act is shown through the use of a definition of employer that includes persons acting indirectly in the interest


of the employer in relation to the employee. The reading of the term employer in this fashion is consistent with the provisions of 

the Minimum Wage Act governing penalties (§333.112(b)) which provide that any “employer or the officer or agent of any corporation” 

who pays or agrees to pay less than the minimum wage shall upon conviction in a summary proceeding be sentenced to pay 

a fine or to undergo imprisonment. 

For these reasons, I enter the following Order of Court: 

ORDER OF COURT 

On this 22nd day of February, 2010, it is ORDERED that UPMC’s preliminary objections seeking dismissal of Counts I and II 

are overruled. 

BY THE COURT: 

/s/Wettick, J. 

1 I wish to thank counsel for furnishing briefs that succinctly and competently present the respective positions of their clients and 

for their effective presentations at oral argument. 

2 At this stage of the litigation, I do not consider whether plaintiff would be able to raise a claim under the Wage Payment Law upon 

a showing that UPMC exercised control over the day-to-day operations of Shadyside Hospital, that Shadyside Hospital was not a 

financially independent entity, or other related theories. 

3 It appears that UPMC challenges the allegations that the policies that are the subject of plaintiff’s complaint are mandated by UPMC. 

4 See 1 Pa.C.S. §1928(c) which provides that legislation shall be liberally construed to effect its objects. 

5 UPMC relies on Commonwealth v. Pro-Pak Foods, Inc., 65 D&C2d 494 (C.P. Dauphin 1974), where the Dauphin County Common 

Pleas Court ruled that a parent corporation could be subject to the Wage Payment Law only upon an instrumentality theory of 

ignoring the corporate entity. In that case, the Commonwealth did not appear to make the arguments which plaintiff makes in this 

case, and I do not find the Court’s reasoning to be convincing, assuming that it was addressing a situation in which the subsidiary 

failed to pay wages because of decisions made by the parent. 

6 The term person, defined in the Statutory Construction Act at 1 Pa.C.S. §1991, provides that a person “includes a corporation, 

partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, 

trust, foundation or natural person.” 

In Re: In the Interest of: M.S., a minor 

Recusal Request—Evidence of Delinquency—Aggravated Assault 

1. M.S., a minor, was involved in three separate incidents at school, during two of which she struck school personnel with her 

crutches. 

2. In 2007, M.S. had committed a series of similar delinquent acts and a local police officer contacted the judge asking whether 

the police should file a petition alleging delinquency. The judge’s staff told the officer that a petition should be filed if warranted. 

A petition was filed and the judge recused herself, upon request of M.S.’s counsel, to avoid the appearance of impropriety. 

3. The judge instructed school personnel to file a delinquency petition based upon testimony at the dependency review hearing. 

Thereafter, she refused to recuse herself from hearing the resulting delinquency case. 

4. M.S.’s behavior in striking school personnel in the head was sufficient for the court to find that she was guilty of attempting 

to cause bodily injury to an employee of a school while acting in his or her employment pursuant to 18 C.S.A. §2502(a)(5). 

(Mary K. McDonald) 

Nikki A. Tufano for M.S. 

Edward T. Smith for the Commonwealth. 

No. 2245-03. In the Court of Common Pleas of Allegheny County, Family Division-Juvenile Section. 

OPINION 

Mulligan, J., January 11, 2010—M.S., a minor, appeals her adjudication of delinquency on the charges of Aggravated Assault, 

Indecent Exposure, Simple Assault, Terroristic Threats, and Disorderly Conduct. 1 

On August 10, 2009, M.S. was adjudicated delinquent on the charges of Aggravated Assault, Indecent Exposure, Simple Assault, 

Terroristic Threats, and Disorderly Conduct. On August 17, 2009, I entered a dispositional order placing M.S. on probation, reserv- 

2 3 

ing a determination as to whether the minor should be placed. 

At the adjudication hearing on August 10, 2009, various officials from the Highlands School District testified to three separate 

incidents which formed the basis for the three delinquency petitions filed against M.S. These incidents occurred on May 13, May 

22, and May 26, 2009. The first witness to testify was Debbie Beucker, the assistant principal at Highlands High School. She stated 

that she was working on all three dates in question, and that the incident on May 13th began when she was called to the school 

auditorium, where M.S. was being held in a pod after she was removed from her classroom. Once Ms. Beucker arrived at the auditorium, 

she observed M.S. exposing herself, as well as being disruptive by turning over tables and verbally harassing school personnel. 

On May 22, 2009, Ms. Beucker again interacted with M.S., this time when M.S. was brought to Ms. Beucker’s office after 

M.S. refused to go to class. M.S. later assaulted Ms. Beucker by hitting her on the head with a pair of crutches. M.S. also called Ms. 

Beucker a profane name, and then spit on her. Ms. Beucker testified to a similar incident on May 26, 2009, when M.S. again refused 

to go to class and was brought to her office. M.S., once at the assistant principal’s office, began exposing herself and touching herself 

sexually in front of Ms. Beucker. M.S. also hit Ms. Beucker twice on the head with her crutches. M.S. then hit a security guard

april 23, 2010 page 161 

with a yardstick, and then she hit a principal with her hand. M.S. then told the staff that she was going to blow up the school, and 

that she was going to bring a gun to school the next day. 

On cross-examination, Ms. Beucker described M.S.’s physical limitations, testifying that M.S. arrives at the school in an Access 

van, enters the school in a wheelchair, and then is on crutches for the rest of the school day. Ms. Beucker also testified that M.S. has 

vision problems. Describing being hit by the crutches in her office, Ms. Beucker stated that while her injuries were not severe, she 

did have a bump on her head following the assault and that it hurt to be hit by the crutches. Ms. Beucker found that despite her physical 

limitations, M.S. was able to forcefully swing the crutches and turn over tables. Ms. Beucker similarly described the incident 

on May 26th, and stated that she once again received a bump on her head, this time from being struck twice with crutches. 

Amanda Coulter, a teacher at Highlands High School, described the extent of her involvement with M.S. on the three dates in 

question. On May 13, 2009. Ms. Coulter recalled being called to assist M.S., who was refusing to go to class. Upon approaching the 

minor, Ms. Coulter was spit upon by M.S. and M.S. proceeded to hit Ms. Coulter with her crutches. On May 22, 2009, Ms. Coulter 

was again called to assist M.S., and M.S. spit on her, tried to hit her, and verbally harassed her. On the 26th, Ms. Coulter stated she 

was hit by a yardstick by M.S. in the assistant principal’s office. On cross-examination, Ms. Coulter stated she did not receive any 

injuries from these scuffles. 

Following Ms. Coulter’s testimony, Stacia Boguslowski testified to the incidents on May 13 and May 22, 2009. On May 13, 2009, 

Ms. Boguslowski stated that she accompanied M.S. to the auditorium, and after arriving at the auditorium, M.S. became angry and 

began turning over tables and swinging her arms and crutches. M.S. was trying to hit various members of the faculty according to 

Ms. Boguslowski. On May 22nd, Ms. Boguslowski witnessed the incident where M.S. hit Ms. Beucker in the face with her crutches. 

In addition, on May 22nd Ms. Boguslowski testified that she too was spit upon, and hit on the side of the face by M.S. 

Following Ms. Boguslowski’s testimony, and testimony by additional members of the faculty which related identical stories with 

respect to the dates and incidents in question, I found M.S. delinquent on the charges of aggravated assault, terroristic threats, simple 

assault (one of the individuals assaulted was not school personnel), indecent exposure, and disorderly conduct. I did not find 

that M.S.’s cane or crutches were dangerous weapons, but I did find that M.S. attempted to cause bodily injury by swinging her 

crutches and striking school personnel in the face and head with her crutches and her hands. I also found M.S. in need of treatment, 

rehabilitation, and supervision, and thus delinquent. 

In her statement of matters complained of on appeal, M.S. alleges two categories of error. 4 M.S. first avers that I erred by not 

recusing myself in this matter. M.S. uses as support for her recusal request the fact that I had previously recused myself in a delinquency 

proceeding involving M.S. in 2007. 

On April 11, 2007, I issued a Permanency Review Order in M.S.’s dependency proceeding that stated, among other things, that 

M.S.’s school was to take appropriate disciplinary action when necessary, and was expected to file charges should it become necessary 

in order to control M.S.’s behavior. 5 Subsequent to that order, M.S. committed a similar series of delinquent acts as the ones 

alleged in this petition (striking teachers with her fists, using lewd language, etc.). An officer from the Harrison Township Police 

Department phoned my office and asked whether the police should file a petition with respect to M.S. 6 I instructed my staff to 

inform the officer that charges should be filed if the circumstances warranted it. A delinquency petition was later filed. 

When the petition was scheduled to be heard, M.S.’s counsel sought, and I granted, my recusal. While I did not believe that I was 

biased or lacked impartiality, given the nature of the extra judicial communications between the police and my office, in an abundance 

of caution, I recused myself due to the perception of impropriety which the ex parte communication could have triggered. 7 

M.S. alleges in her 1925(b) statement that I should have again recused myself in the this matter. At a dependency review hearing 

on May 15, 2009, I heard testimony from various school personnel about the difficulty in controlling M.S., and that they were 

at a loss as to what to do with her. At the hearing, I instructed the caseworker to take the school principal to the delinquency intake 

department in order to file delinquency petitions. My June 12, 2009 order in the dependency proceeding reflected that the probation 

officer was directed to file the charges which were already in process so that the case could be heard and resolved. 

M.S. alleges in her 1925(b) statement that the same reasons that led to my recusal in 2007 were in play in this case. While 

recusal may not have even been necessary in the 2007 case, the circumstances here were different. The entire reason for my 

recusal in 2007 was the nature of the communication between the police and my office and the appearance of impropriety that may 

have come from that communication. Because the officer called my office outside of a court proceeding and asked about filing 

these charges, I determined that this communication was extra judicial and could lead to an appearance of impropriety. Here, all 

of the alleged communications which led to the filing of this petition took place within the courtroom in M.S.’s dependency proceeding 

and was on the record. Simply because I am privy to some details of the case through my role as M.S.’s dependency judge 

does not render me unable to be an impartial arbiter in the delinquency matter. 8 

A party asserting that the trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, 

or unfairness necessitating recusal. Hall v. Hall, 482 A.2d 974 (Pa.Super. 1984). The alleged bias must stem from an extrajudicial 

source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. 

Municipal Publications, Inc. v. Snyder, 469 A.2d 1084 (Pa.Super. 1983). This extrajudicial bias is bias that is not derived from evidence 

or the conduct of the parties that the court observes in the course of the proceedings. 

The opinions and rulings that I have made in this case were based entirely on the evidence presented and free from any extrajudicial 

bias. In the 2007 correspondence with the police, the communication did not produce any sort of bias, but the communication 

was certainly outside of the walls of the courtroom and therefore a perception of impropriety could be formed. Therefore, even 

though I was not biased, I still decided not to hear that particular case. Here, everything was on the record so no such perception 

could have been formed. Further, the overwhelming evidence presented in the delinquency proceeding makes it obvious that my 

decision was based on the evidence presented in court. 

M.S.’s second allegation of error is that the evidence presented at the August 10, 2009 delinquency hearing did not support a 

finding of delinquency on the charges of aggravated assault. 9 A person is found delinquent of aggravated assault, l8 Pa.C.S.A. 

§2502(a)(5), if he/she attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board 

member or other employee, including a student employee, of any elementary or secondary publicly-funded educational institution, 

any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial 

school while acting in the scope of his or her employment or because of his or her employment relationship to the school. The entire 

purpose of the above section is to recognize that one who attempts to intentionally cause any bodily injury (serious or not) to school 

personnel is guilty of aggravated assault whether or not he or she succeeds. 

Here, M.S. alleges that because she did not cause bodily injury, and because she did not attempt to cause bodily injury, as the


behavior was merely rude and inappropriate, that the charge of aggravated assault was unfounded. While M.S.’s behavior was 

rude, inappropriate, and unruly, it was also highly dangerous and the individuals involved are lucky to escape without serious bodily 

injury. At the August 10, 2009 hearing, Assistant Principal Beucker testified that she was struck twice in the head with crutches, 

and that this assault left her with a bump on her head. While Ms. Beucker downplayed the seriousness of the event, she did testify 

that she received a bump on her head and that the injury hurt. Whether or not the injuries sustained in this incident constitute 

bodily injury (and I found they did) M.S. was clearly attempting to cause bodily injury to the individuals involved. This was not a 

case where a teacher got in the middle of a fight and was recklessly struck by one of the participants. Here, M.S. in three separate 

incidents within the same month struck teachers, aides, and other school staff. She also used dangerous objects, like her crutches, 

as weapons against the faculty. The evidence presented during the minor’s adjudication hearing overwhelmingly supports the conclusion 

that she be found delinquent on the charges of aggravated assault, among other offenses. For the foregoing reasons my 

August 17, 2009 order should be AFFIRMED. 

K.R. Mulligan, J. 

Date filed: January 11, 2010 

1 While M.S. was found to have committed these delinquent acts, M.S. in her 1925(b) statement of errors complained on appeal 

alleges error only with the finding of delinquency on the aggravated assault counts. 

2 On November 24, 2009, I placed M.S. at the Schuman Center, a juvenile detention facility, for a period of three consecutive weekends 

with permission to increase or decrease depending on her behavior. 

3 M.S., in her 1925(b) statement, does not allege any errors with regards to the Delinquency Commitment order. 

4 While the 1925(b) statement contains four (4) allegations of error, allegations (b) and (c) are moot. In issue (b), M.S. alleges that 

her motion for recusal, preserved in her 1925(b) statement, did not need to be formally filed in writing. As I am addressing issue 

(a) in the body of this opinion, and I told M.S.’s counsel specifically that she need not file the motion as I would deny it, I agree 

that the issue is preserved pending appeal. Likewise, any issue of M.S.’s trial counsel being incompetent for not filing the motion 

is without merit, as I specifically instructed her not to file said motion as it would be unnecessary. 

5 In addition to her physical problems, M.S. is a dependent child due to the fact that her Mother has a drug addiction and her Father 

is deceased. 

6 The officer was understandably hesitant to file charges against M.S. given her physical limitations, but I have found that M.S.’s 

handicaps give her considerably more room to offend than an ordinary student. Part of the overriding theme of this case is the 

minor’s belief that no one can do anything to her because of her handicap. While I understand M.S.’s frustration with her handicap 

and certainly I am sympathetic, it does M.S. no service to disregard criminal behavior because of her disability. 

7 The prior case was continued to observe M.S.’s behavior and was subsequently dismissed. 

8 It is part of the role of a judge (particularly without a jury in juvenile court) to disregard information which he or she ruled inadmissible 

and render a decision based solely on the admissible competent evidence presented. 

9 M.S. does not allege any allegations of error with the other delinquency charges, including simple assault, disorderly conduct, 

terroristic threats, and indecent exposure. 

Commonwealth of Pennsylvania v. 

Elroy Layne 

Voir Dire—Abuse of Discretion—Hearsay 

1. Defendant was sentenced to a mandatory term of life imprisonment for conviction of First-Degree Murder and Burglary. 

2. Defendant raised following issues on appeal: 

a. Voir Dire Issues – Defendant argued that Court erred in not permitting his attorney to voir dire the jury panel regarding 

their feelings on interracial marriage. The Defendant is African-American and his estranged wife is not. The fact that 

they had been involved in an interracial marriage had no bearing on the Defendant’s guilt or innocence in the murder of 

his wife’s boyfriend and was in no way relevant to whether a person was competent to serve on the jury. Court exercised 

discretion in denying the voir dire request. 

b. PFA Issues – It was not an abuse of discretion for Court to admit PFA order. Although Defendant’s wife was not at home 

at the time of the attacks, her children – who were “protected” pursuant to the Order – were, and the Defendant was 

excluded from the residence where the attacks occurred. Court acted within its discretion in allowing the testimony of 

Beth Keenan, Esquire, the Coordinator of the PFA Office in the Family Division of the Court of Common Pleas. 

c. Police Officer Roger Krawchyk’s testimony regarding child’s statements was not made for the truth of the matter, but 

rather to further explain his and the other officers’ course of conduct in searching and securing the home. The statements 

are clearly within the “course of conduct” rule and were properly admitted. 

3. Judgment of sentence was affirmed. 


David Spurgeon for the Commonwealth. 

Robert L. Foreman for Defendant. 

No. CC 200800427. In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division.

april 23, 2010 page 163 

OPINION 

McDaniel, P.J., December 2, 2009—The Defendant has appealed from the judgment of sentence entered by this Court on March 

9, 2009. A review of the record reveals that the Defendant has failed to present any meritorious issues on appeal and, therefore, 

the judgment of sentence must be affirmed. 

The Defendant was charged with Criminal Homicide1 and Burglary. 2 Following a jury trial held before this Court, the Defendant 

was convicted of First-Degree Murder and Burglary. On March 9, 2009, he appeared before this Court and was sentenced to a 

mandatory term of life imprisonment. Timely Post-Sentence Motions were filed and were denied by this Court on March 19, 2009. 

This appeal followed. 

Briefly, the evidence presented at trial revealed that during the late evening hours of December 7, 2007, the Defendant went to 

the home of his estranged wife, Angelina to confront her about statements she had purportedly made that she had never loved him. 

He brought with him duct tape, pepper spray and a utility knife. When he arrived at the house, located at 21 Queen Street in the 

Spring Hill section of the City of Pittsburgh, Angelina was not there, but her new boyfriend, Timothy David Staley, was, as were 

her four small children. The Defendant then attacked Staley, beating him and stabbing him repeatedly in locations both outside 

and, later, inside the house. The attack was witnessed by Angelina’s 10-year-old son, Charlie. 

In the meantime, Angelina had returned home, and upon seeing blood outside her house, remained in her car and called the 

police. When the Defendant heard the sirens, he jumped out of a bedroom window and fled into the woods, eventually jumping off 

a highway overpass and landing on I-279 North. On autopsy, Staley was found to have 38 stab wounds, which, along with bluntforce 

trauma to the head, were determined to be the cause of his death. The Defendant presented a defense of self-defense, averred 

that he only stabbed Staley three times, and testified that an unknown attacker inflicted the remaining 35 stab wounds in the short 

time between the Defendant’s hearing the sirens and the entry of the police into the home. At the time of the incident, the 

Defendant was the subject of a PFA Order which protected Angelina and her four children and which excluded the Defendant from 

Angelina’s residence at 21 Queen Street. 

On appeal, the Defendant raises a number of issues which are discussed as follows: 

1. Voir Dire Issues 

Initially, the Defendant argues that this Court erred in not permitting his attorney to voir dire the jury panel regarding their 

feelings on interracial marriage. This claim is meritless. 

“The scope of voir dire rests in the sound discretion of the trial court, whose decision will not be reversed on appeal absent palpable 

error…. The purpose of voir dire is solely to ensure the empanelling of a competent, fair, impartial and unprejudiced jury 

capable of following the instructions of the trial court.” Commonwealth v. Bomar, 826 A.2d 831, 849 (Pa. 2003). 

During voir dire, this Court denied the Defendant’s request to voir dire the jury panel regarding their feelings on interracial 

marriage and bi-racial children for the simple fact that it was not relevant to the case at hand. The fact that the Defendant – who 

is African-American and Angelina Layne – who is not – had been involved in an interracial marriage had absolutely no bearing on 

the Defendant’s guilt or innocence and was in no way relevant to whether a person was competent to serve on the jury. The 

Defendant apparently feels that he was convicted because the jurors were racist [much as he testified to believing that all white 

people and all police officers were racist (T.T. p. 286, 293)], but such a supposition is completely belied by the evidence and the 

eyewitness testimony. This Court was well within its discretion in denying the voir dire request and this claim must fail. 

2. PFA Issues 

The Defendant raises two (2) claims of error with regard to the PFA: that this Court erred in allowing its admission at all, and 

that this Court additionally erred in allowing the testimony of Beth Keenan, Esquire, the Coordinator of the PFA Office in the 

Family Division of the Court of Common Pleas. Both are meritless. 

As to the Defendant’s initial claim of error regarding the admissibility of the PFA, it is by now well-established that “the admissibility 

of evidence is a matter for the discretion of the trial court and a ruling thereon will be will be reversed on appeal only upon 

a showing that the trial court committed an abuse of discretion…. ‘An abuse of discretion may not be found merely because an 

appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness or partiality, prejudice, 

bias or ill-will or such lack of support as to be clearly erroneous.” Commonwealth v. Sherwood, 2009 WL 3682606, p. 9 (Pa. 

2009). “Admissibility depends on relevance and probative value…. Evidence is relevant if it logically tends to establish a material 

fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding 

a material fact.” Commonwealth v. Crews, 640 A.2d 395, 402 (Pa. 1994). 

In Commonwealth v. Stallworth, 781 A.2d 110 (Pa. 2001), our Supreme Court addressed the admissibility of civil PFA Orders in 

criminal cases generally, and particularly those which involved burglary charges. Specifically, the Court held that the PFA Order 

was admissible to make out the elements of the burglary charge as well as to show the defendant’s “intent and motive.” It stated: 

“As to the burglary prosecution, a person is guilty of burglary if he enters a building or occupied structure with the intent to commit 

a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter…. Evidence 

that the victim had obtained a court order specifically excluding [the defendant] from her residence was probative of the 

Commonwealth’s allegation that [the defendant] entered the residence while not licensed or privileged to do so.” Commonwealth 

v. Stallworth, 781 A.2d 110, 118 (Pa. 2001). 

In the instant case, although Angelina Layne was not home at the time of the attacks, her children – who were “protected” pursuant 

to the Order – were, and the Defendant was excluded from the residence where the attacks occurred. Under these circumstances, 

the PFA Order was admissible and was properly ruled as such by this Court. 

In light of the admissibility of the PFA Order, this Court was well within its discretion in allowing the testimony of Beth Keenan, 

Esquire. A review of the record reveals that Ms. Keenan’s very brief testimony simply provided some basic background information 

regarding what a PFA is, and, in the manner of a records custodian, introduced the PFA Angelina Layne had obtained against 

the Defendant, identified its protected persons and the excluded residence. Ms. Keenan’s testimony was relevant and was properly 

admitted by this Court. These claims must fail. 

3. Hearsay Issue 

Finally, the Defendant argues that this Court erred in allowing the admission of hearsay testimony. Again, this claim is meritless. 

During the testimony of police officer Roger Krawchyk, the following occurred: 

Q. (Mr. Spurgeon): When you got upstairs, did you make any observations?


A. (Officer Krawchyk): Yes. When we got up there, we found an individual laying on the floor bleeding. 

Q. And what did you do when you saw that? 

A. Checked him. He was unresponsive. There was a little bit of shaking of the arm. He was bleeding profusely. 

Q. Did the little boy tell you about who may have done this? 

A. Yeah. At that time he said that – 

MR. FOREMAN: Your Honor, may we approach. 

THE COURT: You may. 

(Sidebar discussion held on the record.) 

MR. FOREMAN: I object to hearsay. Some of it, I have not objected to as to why the officer did what he did. This is purely 

a narrative from a non-witness, the little boy. 

MR. SPURGEON: Charlie is telling him what happened, where the person is and what he did as a result. It’s not being 

introduced as hearsay. It’s the natural course of events as to why the officer did what he did. 

THE COURT: I will overrule the objection. Charlie will be here to testify? 

MR. SPURGEON: That’s correct. 

(Sidebar discussion concludes.) 

Q. So you come in contact with the little boy? 

A. Yes. 

Q. And he indicated what? 

A. As to the gentleman who did it, a man by the name of EJ was still in the house, possibly in the third floor of the house. 

Q. What did you guys do with that information? 

A. At that time we started to go – we notified dispatch that the individual is possibly still in the house. I believe at that 

time the lieutenant closed off the area. As we started to check the house, two officers in front of me started to go upstairs. 

I opened the rear door located right in that room to make sure the individual would not jump out the window… 

(T.T. p. 28-30) 

The Pennsylvania Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at 

the trial…offered in evidence to prove the truth of the matter asserted.” Pa.R.Evid. 801(c). “The purpose for which evidence is 

offered determines its admissibility.” Commonwealth v. Carson, 913 A.2d 220, 258 (Pa. 2006). “Certain out-of-court statements 

offered to explain a course of conduct are admissible as an exception to the hearsay rule as those statements are not offered for 

the truth of the matter asserted; they are offered to show information upon which the police acted.” Commonwealth v. Shotwell, 

717 A.2d 1039, 1042 (Pa.Super. 1998). 

As reflected in the record, Officer Krawchyk’s testimony regarding Charlie’s statements was not made for the truth of the matter, 

but rather to further explain his and the other officers’ course of conduct in searching and securing the home. The statements 

are clearly within the “course of conduct” rule and were properly admitted. This claim must fail. 

Accordingly, for the above reasons of fact and law, the judgment of sentence must be affirmed. 

BY THE COURT: 

/s/McDaniel, P.J. 

1 18 Pa.C.S.A. §2501 

2 18 Pa.C.S.A. §3502

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