Opinions

Archived Opinion Summaries from 2012 to April 2018 CLICK HERE
Recent Opinion Summaries published in the Butler County Legal Journal:
 

 

2017

 

BCLJ: 3/31/17 Vol. 25 No. 35

 

ALHUMOUD v. ZAVILLA, ET AL.

(AD No. 14-11018, January 19, 2017, Horan, J.)

The element of actual possession for adverse possession of woodlands can be demonstrated by enclosing and cultivating without residence. Enclosing and cultivation without residence can be established, for purposes of overcoming a motion for summary judgment, by building and maintaining trails and access gates, as well as building tree stands.

 

SCHRIVER v. SCHRIVER

(FC No. 13-90730-C, January 26, 2017, Doerr, P.J.)

When all of the other factors are generally equal but one parent is more likely to attend to the educational and special needs of the children, said parent shall be granted primary physical custody in order to promote the best interest of the children.

 

BCLJ: 5/26/17 Vol. 25 No. 43

 

BABAY, ET AL. v. GRAZIER, ET AL

(AD No. 16-10760, April 10, 2017, Horan, J.) 

A landowner cannot acquire an easement by implication based upon a depiction on a recorded plan when the purported dominant parcel is not a lot within said plan. 

 

EPPINGER v. EPPINGER 

(FC No. 16-90261-C, April 12, 2017, Streib, J.) 

A right of first refusal that limits a parent’s time but negatively impacts the children must be modified in order to ensure that the children are not negatively harmed. 

 

BEALL, ET AL. v. GPX v. PITTSBURGH REAL ESTATE, ET AL. 

(AD No. 15-10844, April 19, 2017, Horan, J.) 

Section 386 of the Restatement (Second) of Torts imposes potential liability for harm caused by dangerous conditions on “any person, except the possessor of land or a member of his household or one acting on his behalf who creates or maintains upon the land a structure or other artificial condition which he should recognize as involving an unreasonable risk of physical harm to others upon or outside of the land”. Allegations that meet this standard present genuine issues of material fact as to whether a tort duty is owed. 

 

THEBERGE v. THEBERGE 

(FC No. 16-90520-D, April 25, 2017, Doerr, P.J.) 

When an agreement is intended to be a full and final settlement of all marital issues, the court can find that the use of the term “spousal support” encompasses alimony pendente lite and alimony as well as spousal support. 

 

 

BCLJ: 6/2/17 Vol. 25 No. 44

 

RIPPEE v. RIPPEE 

(FC No. 10-90410-D, April 25, 2017, Doerr, P.J.) 

When a Master’s report is well reasoned and a thorough analysis of the facts, and is not an abuse of discretion, the court will not disturb the Master’s credibility findings. 

 

WRIGHT v. DESANZO 

(FC No. 12-90472-C, April 28, 2017, Streib, J.) 

When a party fails to comply with court ordered custody evaluations, the court will draw a negative inference from the repeated failure to comply. 

 

DONALDSON v. CITY OF BUTLER, ET AL. 

(AD No. 16-11011, May 5, 2017, Horan, J.) 

When indispensable parties are not named in a case, it is proper to sustain preliminary objections for failure to join an indispensable party but grant plaintiff leave to amend in order to join the indispensable parties. In determining whether a party is indispensable, there is a four part test: (1) Do absent parties have a right or interest related to the claim? (2) If so, what is the nature of that right or interest? (3) Is that right or interest essential to the merits of the issue? And (4) Can justice be afforded without violating due process of absent parties? When city firefighters vested property right in their promotion are the subject of litigation, they are indispensable parties to the litigation. A current council member has an interest in the case when the remedy is for the current council to reverse promotions of said firefighters. Finally, the union has an interest because of the collective bargaining agreement and its relationship to the civil service rules.

 

BCLJ: 10/27/2017 Vol. 26 No. 13

 

BAYVIEW LOAN SERVICING v. DAHL, ET AL. 

(AD No. 10-10720, June 27, 2017, Horan, J.) 

When a party files no objection or answer to a Motion for Summary Judgement, any asserted procedural errors are waived by that party. 

 

McCONNELL v FINDLEY ET AL. 

(AD No. 17-10098, July 18, 2017, Horan, J.) 

When tort claims arise solely from the duties expressed in a contractual relationship between parties and are grounded in the contract itself, then the gist of the action doctrine is a bar to tort claims arising from said contract. When parties freely enter into an agreement that contains a forum selection clause, then a court will not invalidate the clause so long as the contract is enforceable. 

 

GARDNER v KAMER 

(AD No. 07-10732, July 24, 2017, Horan, J.) 

When a complaint in ejectment fails to make any references to the metes and bounds of property, adjoining property, or any landmarks, the action in ejectment fails to state a claim upon which relief can be granted. The Statute of Frauds as a defense must be raised as new matter and is not by preliminary objections. 

 

ELLENBERGER v ELLENBERGER, ET AL. 

(AD No. 17-10153, August 3, 2017, Horan, J.) 

A claim for fraudulent inducement will not lie when an averment of the existence of an oral contract fails to note falsity, recklessness as to truth, or fails to show intent of misleading reliance. The Orphans’ Court has jurisdiction over the administration and distribution of real property of a decedent, and the Civil Division lacks jurisdiction to adjudicate claims arising therefrom. 

 

GREENERT v GREENERT 

(FC No. 11-90058-C, August 16, 2017, Streib, J.) 

When one parent is unwilling to accept responsibility and onus for personal challenges that contribute to the parties’ inability to co-parent, and the other custodial party has shown willingness to seek help and improve for the benefit of the child, the action of the latter parent warrants the latter parent having primary custody, when viewed along with the other factors of custody.

 

BCLJ: 11/3/2017 Vol. 26 No. 14

 

PITTSBURGH LOGISTIC SYSTEMS v. FREIGHT TEC., ET AL. 

(AD 17-10242, August 24, 2017, Horan, J.)

When a corporation has no place of business, employees or bank accounts within Pennsylvania, have not distributed product in Pennsylvania, are not qualified to do business in Pennsylvania or have not owned real or personal property in Pennsylvania, a Pennsylvania Court cannot exercise general jurisdiction over said corporation. When a corporation knows, or reasonably should have known of the existence of employment contracts between employees and a Pennsylvania Corporation, and averments are made that the encroaching corporation intended to interfere with said employment contract, the first prong of the Calder test is met and the Court can exercise specific jurisdiction over the foreign corporation. 

 

CROWE v. CROWE 

(FC No. 13-90616-C, September 7, 2017, Streib, J.) 

When a parent has an alleged history of drug addiction and fails to participate in a Custody Trial, that parent’s custody may be limited. 

 

PIEROTTI ET AL. v. EQT PRODUCTION COMPANY ET AL. 

(AD No. 13-90616-C, September 7, 2017, Streib, J.) 

When a party does not purchase, buy, or otherwise consume anything, a claim under the UTPCPL by an oil and gas lessor against an oil and gas lessee will not survive preliminary objections. 

 

FLEEGER v. FLEEGER 

(FC No. 11-90666-C, September 1, 2017, Streib, J.) 

When there is no evidence to suggest that a parent’s participation in non-traditional sexual practice is deleterious to the children in any way, participation is not relevant to a custody dispute.

 

2018

 

BCLJ: 4/13/18 Vol. 26 No. 37

 

BERNAUER V. FRISHKORN

(FC No. 16-90653, March 28, 2018, Streib, J.)

When both parties in a custody action are equally fit to parent, and no other circumstances lean toward one parent or another, the court shall award shared legal custody and shared physical custody.

 

 

PRINGLE V. YWCA USA, INC. ET AL.

(AD No. 17-10343, December 20, 2017, Horan, J.)

When no agency relationship exists between national organization and local organization, the national organization cannot be held vicariously liable. 

 

VAN HOUTTE V. VAN HOUTTE

(FC No. 17-90028-C, November 16, 2017, Doerr, P.J.)

When parent and child no longer reside in County where action originated, it is appropriate for the court to transfer venue to an appropriate court of any other county where the action could originally have been brought or could be brought. 

 

STEPANIAN V. BROOKSTONE CONDOMINIUM ASSOCIATION

(AD No. 15-10458, November 16, 2017, Horan, J.)

When Defendant is responsible for maintenance, repair, and replacement of Plaintiff’s driveway due to it being a common area, it can be held liable for failure to maintain, repair, and replace said area under the Pennsylvania Uniform Condominium Act. 

 

SCHERER V. WALL

(FC No. 17-90532-C, November 14, 2017, Doerr, P.J.)

When relocation will result in emotional betterment of the children and no adverse motivation is present from either party, relocation will be allowed. 

 

RUMINER V. ROCKWELL

(FC No. 15-90803-C, October 23, 2017, Doerr, P.J.)

When relocation will provide no benefit to the children and could negatively influence the relationship between parent and child, the court will not grant relocation.

 

SNOW V. EMERY, ET AL.

(AD No. 13-10595, October 20, 2017, Horan, J.)

When land did not meet the requirements of being seated, since there was no development or production of profit from the land, it is considered unseated land. Unseated land, at the time of Treasurer’s sale of the property, was not required to be tracked by the county, and the duty to notify the commissioners of the change of ownership fell to the owners, prior and subsequent. When subsurface interests were severed, the duty to notify the County again fell to the landowners. As such, when the landowners failed to report to the county the severance of the subsurface rights, and the property was sold at tax sale, and assumed to be wholly intact, the tax sale was procedurally correct and title transferred to the purchasers at tax sale. Even if the advertisement in the paper failed to identify the correct current owner, the advertisement was valid so long as it identified a person who had been connected with the land, and since the two year redemption period for tax sales of unseated land had passed, the correct property owners had ample time to protect their interests.