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October 10, 2012
LEHIGH VALLEY TRANSPORTATION SERVICES, INC., PETITIONERv.PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT
Submitted: September 11, 2012
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
When J & J Leasing & Rentals, Inc., d/b/a Anytime Airport Taxi by J & J Luxury Transportation (J & J) requested that the Pennsylvania Public Utility Commission (PUC) add "call and demand taxi services" to its existing services, two competitors protested. After a hearing, an Administrative Law Judge (ALJ) approved the addition of these services, and the PUC subsequently denied the competitors' exceptions. On appeal, we hold that the PUC did not err in finding that: (1) J & J met its burden of proving a present public need for the additional call and demand taxi services; and (2) that J & J does not lack the propensity to operate safely and legally.
On February 19, 2010, J & J filed an application (Application) with the PUC to amend its certificate of public convenience to add call and demand taxi services to its existing services.*fn1 Notice of the Application was posted in the Pennsylvania Bulletin, and two competitors, Lehigh Valley Transportation Services, Inc. (Lehigh) and Quick Service Taxi Company, Inc. (Quick Service), filed timely protests. The matter was assigned to an ALJ to hold hearings. J & J, Lehigh, and Quick Service presented both testimony and documentary evidence.
In order to add the call and demand taxi services, J & J had to meet the requirements in Section 1103(a) of the Public Utility Code (Code), 66 Pa. C.S. § 1103(a), and Section 41.14 of the regulations, 52 Pa. Code § 41.14. At issue is whether J & J initially met its burden of proving that there was a present public need for the services, (Section 1103(a)), and whether the protestors thereafter met their burden of proving that J & J lacks a propensity to operate safely and legally, (Section 41.14(b) of the PUC's regulations).
At the hearing J & J presented fact witnesses, who testified in support of the present need for additional call and demand taxi services, and J & J's Vice President of Operations, Denise Sam Cali, who testified about J & J's finances, facilities, all aspects of its operations, and introduced numerous exhibits in support of J & J's Application. Lehigh and Quick Service cross-examined J & J's witnesses and presented witnesses of their own and some documentary evidence in opposition to the Application.
J & J's witnesses testified about the need for call and demand taxi
services. Some testified that they would use these services either for
themselves, for family members, or business clients.*fn2
Some testified either that they have used Lehigh or Quick
Service in the past, but were not satisfied with the service, or that
they would not use Lehigh or Quick Service based on concerns about the
safety or cleanliness of the vehicles, the "unkempt" appearance or
attitude of the drivers, or because they were told that those
businesses did not provide service to where the witness lived.
Additionally, J & J presented a list of individuals who had contacted
them for call and demand services, which J & J referred to other
providers. (FOF
¶¶ 26-35; J & J Ex. 16, PUC Br. at Appendix A.)
Additionally, J & J offered the testimony of Ms. Cali, the supervisor of J & J's finances, employees, facilities and vehicles, and who submitted numerous exhibits which were admitted into the record. J & J has the necessary federal permits to provide interstate services and has been licensed by the PUC since 1985 to provide limousine, group and party service, para-transit, and airport transfer services. J & J employs approximately 80 drivers, who, together, speak five different languages. Those drivers must pass a pre-employment examination and receive on-the-job training before they can drive for J & J, the drivers must maintain all the licenses required to operate the appropriate vehicles,*fn3 and J & J requires ongoing testing, training, and evaluations of its drivers. Additionally, J & J uses mystery shoppers to evaluate its drivers, and has rules and a program to address driver training, accidents, vehicle maintenance, and safety. J & J maintains all of the necessary bodily injury and property damage insurance on its vehicles, and already has the meters necessary to provide the call and demand service. J & J operates 24 hours per day, 7 days per week, year round from its offices in Allentown, where 14-16 people work, including day and night supervisors, bilingual dispatchers, 4 mechanics who are on call 24 hours per day, and a safety supervisor. Ms. Cali testified as to J & J's financial particulars, which are not at issue in this appeal. J & J has received two PUC complaints, one of which was withdrawn by the PUC and the other was resolved by settlement. There was no evidence that J & J, or any of its drivers, have been convicted of a crime of moral turpitude and remains under the supervision of a court or prison. (FOF ¶¶ 1-8, 10-17.)
In opposition to J & J's request, Lehigh's General Manager (General Manager) testified that, on January 29, 2011 and April 9, 2011, he was solicited by individuals who offered to provide transportation to him from the Sands Casino in Bethlehem to a non-airport location in vehicles marked for J & J's airport transport service. (Hr'g Tr. at 165-72, R.R. at 85a-92a.) A consultant for Lehigh testified that a person, who proffered a J & J business card but did not have a J & J marked vehicle, transported him for a flat $10.00 fee, rather than a rate based on mileage. (FOF
¶¶ 18-20.) Quick Service's evidence revealed that its services are not co-extensive with those J & J seeks, as Quick Service cannot provide services in Northampton County. Quick Service receives calls for services at the Lehigh Valley International Airport and sends one to five taxis there each day. Lehigh and Quick Service also presented copies of J & J's on-line and telephone book advertising, which were unclear exactly what call and demand services (interstate or intrastate airport transfer service) are being offered by which J & J entity, Anytime Taxi by J & J or Anytime Airport Taxi by J & J. (FOF ¶¶ 20-22.)
The ALJ determined, in relevant part, that J & J satisfied its burden of proving that there was a current public need for the proposed service and that the witnesses represented a cross-section of the public to whom the services would be offered. The ALJ also found that J & J, as a current certificate holder, is entitled to the continuing presumption of fitness to perform its services, citing In Re Blue Bird Coach Lines, Inc., 72 Pa. P.U.C. 262, 274 (1990). The only fitness requirement at issue, as set forth in Section 41.14 of the regulations, is whether J & J had the propensity to operate safely and legally. Although Lehigh and Quick Service argued that J & J, in charging flat rates for its limousine and group/party services, violated its tariff, and J & J violated its certificate when it offered call and demand service to non-airport bound riders, the ALJ concluded that the cited isolated incidents did not indicate that J & J has the propensity to operate illegally. (ALJ Decision at 34-36, R.R. at 222a-24a.) The ALJ noted Ms. Cali's testimony that she would not tolerate such behavior, had not heard of these allegations before the hearing, would investigate and, if necessary, discharge drivers if warranted. Although the ALJ was troubled by the allegations that J & J may have charged rates different than its tariff, she concluded that the testimony was vague, did not indicate what fare was actually charged and, therefore, was insufficient to show that J & J has a "persistent disregard for, flouting, or defiant attitude toward the [Code], or orders and regulations of the [PUC]." (ALJ Decision at 35, R.R. at 223a.) Similarly, the ALJ indicated that, while the advertisements should have been clearer about what services were being offered by which J & J entity, Ms. Cali testified that the website was a work in progress, there were errors on the website, and there had been some confusion initially as to what services J & J could provide. (Hr'g Tr. at 155-57, R.R. at 81a-83a.) For these reasons, the ALJ concluded that the record did not contain sufficient evidence to rebut the presumption of J & J's continuing fitness to operate and, therefore, recommended that the PUC grant the Application.
Lehigh filed exceptions to the ALJ's determination, in which Quick Service joined, asserting that the ALJ erred in finding a present need for the proposed service and that J & J had the propensity to operate safely and legally. In its first exception Lehigh argued, based on Ace Moving & Storage, Inc. v. Public Utility Commission, 935 A.2d 75 (Pa. Cmwlth. 2007), that the need witnesses had to be "actual users," not users who would be recommending the service to someone else or paying for the service for someone else. Lehigh stated that there "must be more than a professed possibility that if a service was available by a specific individual[,] the witness [']might['] utilize that service," and it would be "illogical to assume that a service is reasonably necessary" because the witnesses testified that they have not used call and demand services and did not know that such services were available. (Exceptions at 4, R.R. at 239a.) In its second exception, Lehigh challenged the ALJ's determination that J & J has the propensity to operate safely and legally, noting that J & J has had a PUC certificate since 1985 and still violated its tariffs and its certificate by offering flat rates and de facto call and demand taxi services. Lehigh argued, inter alia, that the ALJ erred in placing the burden on it and Quick Service to rebut the presumption of fitness and prove that J & J was not fit. Rather, according to Lehigh, the burden should have been placed on J & J, and J & J did not satisfy its burden. According to Lehigh, J & J has a pattern of disregard for the Code, the PUC's regulations, and its tariff, which demonstrates that it is not fit to operate a call and demand service.
The PUC reviewed the record and, for the most part, adopted the ALJ's findings of fact and conclusions of law. The PUC denied Lehigh's first exception, finding that the witness testimony cited by the ALJ "was credible and probative and, considered as a whole, more than sufficient to establish" a public need for the proposed services. (PUC Op. at 8.) The PUC concluded that Ace Moving & Storage supported the ALJ's determination because J & J presented thirteen public witnesses who testified to present and future needs for the proposed service in Lehigh and Northampton Counties, twelve of whom had present taxi needs and were satisfied with J & J's other services. Furthermore, the PUC pointed to the people who contacted J & J about call and demand services, who J & J referred to other entities.
The PUC also denied the second exception, concluding that the evidence presented did not, when taken as a whole, establish that J & J demonstrated "a persistent disregard for, flouting, or defiant attitude toward the [Code], or orders and regulations of the [PUC]." (PUC Op. at 11-12.) The PUC agreed with the ALJ that there was no uncontroverted evidence of J & J charging other than their lawful tariff rate. The PUC also noted that Ms. Cali testified that she was aware of only two complaints in the past year, one of which was withdrawn and one that was settled. Finally, the PUC held that any errors that may have existed on J & J's website as to its services were not authorized and were being corrected. Lehigh now petitions this Court for review, raising the same two arguments it raised before the PUC.*fn4
J & J had to comply with Section 1103(a) of the Code, which provides
that an application for a certificate of public convenience should be
granted only if the PUC finds that "the granting of such certificate
is necessary or proper for the service, accommodation, convenience or
safety of the public." 66 Pa. C.S. § 1103(a). The applicant must also
satisfy the specific requirements the PUC has promulgated in its
regulations, 52 Pa. Code § 41.14.*fn5 J & J, as the
party requesting approval of the Application, must prove by a preponderance of the evidence that the
requirements of Section 1103(a) and Section 41.14 are met.*fn6
Samuel J. Lansberry, Inc. v. Pennsylvania Public Utility
Commission, 578 A.2d 600, 602-03 (Pa. Cmwlth. 1990). "[T]he PUC's
interpretations of the Code, the statute for which it has enforcement
responsibility, and its own regulations are entitled to great
deference and should not be reversed unless clearly erroneous." Energy
Conservation Council of Pennsylvania
v. Public Utility Commission, 995 A.2d 465, 478 (Pa. Cmwlth. 2010).
We are mindful that, "[w]hen reviewing a PUC decision, the Court should
neither 'substitute its judgment for that of the PUC when substantial
evidence supports the PUC's decision on a matter within the [PUC's]
expertise,' nor should it indulge in the process of weighing evidence
and resolving conflicting testimony." Id. (quoting Popowsky v.
Pennsylvania Public Utility Commission, 550 Pa. 449, 462, 706 A.2d
1197, 1203 (1997)). "'[A] public demand/need for an applicant's
proposed transportation service may be proven through witnesses
comprising a representative sampling of the public that will use the
applicant's proposed service within the territory encompassed by the
application.'" Ace Moving & Storage, 935 A.2d at 78 (quoting Blue
Bird, 72 Pa. P.U.C. at 274). In proving a public need for the
services, the "witnesses must be legally competent and credible; their
testimony must be probative and relevant to the application, and they
must articulate a demand/need for the type of service embodied in the
application." Yellow Cab Company of Pittsburgh
v. Pennsylvania Public Utility Commission, 673 A.2d 1015, 1018 (Pa.
Cmwlth. 1996).
Lehigh argues that the testimony presented by J & J witnesses does not meet the burden of proving the present public need for the services. Instead, Lehigh claims that the testimony was similar to the testimony found lacking in Ace Moving & Storage because it was speculative and merely stated the witnesses would be referring J & J's services to others, i.e., their elderly relatives, their children, their houseguests, etc. In Ace Moving & Storage, a moving company (Shannon) sought to expand its certificate of public convenience to allow it to move household goods within Pennsylvania. To support its application, Shannon presented evidence that realtors at three realty companies wanted to recommend Shannon to their clients to transport the clients' household goods. The ALJ held that Shannon had satisfied its burden of proving a public need for the proposed services, and the PUC modified the ALJ's determination and affirmed the grant of the certificate of public convenience. On appeal to this Court, the protestants argued that the evidence Shannon submitted was insufficient to show that there was a present need among actual users of the proposed service. We agreed, reversed the PUC's order, and held that the testimony presented was not based on a desire to satisfy the realtors' own needs, but to satisfy the alleged needs of the realtors' clients and, therefore, was not evidence of requests by actual potential customers.
However, J & J's evidence does not suffer from the same deficiency as the evidence in Ace Moving & Storage. J & J's witnesses testified that they would use J & J's call and demand services on a weekly to monthly basis for themselves, their relatives, and their houseguests. Although some testified that they had not previously used call and demand taxi services, this is not determinative. Highway Express Lines, Inc. v. Pennsylvania Public Utility Commission, 169 A.2d 798, 803 (Pa. Super. 1961) (in determining the present need for a proposed service, the PUC must "determine not what the needs were, but what the needs will be.") Looking at past need is only one way of estimating future needs. Id. Lehigh's argument is, essentially, that because these particular witnesses did not express a past need for call and demand services, the witnesses cannot demonstrate a present need for those services. Lehigh appears to disregard the other J & J witnesses who testified that they had used the existing providers and were not satisfied, or were aware of the existing providers but would not use those services because of the lack of access, driver attitudes, cleanliness, and safety concerns. In addition, their testimony of what their needs are and will be supports the PUC's determination of a present need. Notwithstanding that most of the witnesses testified that they would be using the services for themselves, the others testified that they would use the service for people for whom the witnesses would otherwise be responsible for providing transportation. For example, several witnesses testified that they would call and pay J & J to transport their elderly relatives to medical appointments. Another witness stated that he would call and pay J & J to pick up his daughter, who sometimes called him late at night, rather than having to go and pick her up himself. Similarly, a third witness testified that she would call J & J to take guests home from her parties, rather than she having to drive them home. The witnesses did not testify that they would recommend J & J to another, who might independently contact J & J, as was the case in Ace Moving & Storage, but rather that J & J would satisfy the witnesses' own needs. In addition, Ms. Cali presented a list of requests J & J received for call and demand services, which J & J had to refer elsewhere. "Requests for service can constitute evidence that this Court has held to be reliable to establish proof of need for service." Ace Moving & Storage, 935 A.2d at 77. Accordingly, through this credited evidence, J & J established that there is a present need for the proposed call and demand services.
Lehigh next argues that the PUC erred in finding that J & J had the propensity to operate safely and legally as required by Section 41.14(b) of the PUC's regulations. Section 41.14(b) includes the caveat that operating "authority may be withheld if the record demonstrates that the applicant lacks a propensity to operate safely and legally." 52 Pa. Code § 41.14(b). At issue, is the interpretation of this caveat.
J & J is an existing certificate holder; therefore, we begin by noting that as such, J & J is entitled to a continuing presumption regarding its fitness to operate.
South Hills Movers, Inc. v. Pennsylvania Public Utility Commission, 601 A.2d 1308, 1310 (Pa. Cmwlth. 1992). It is therefore Lehigh and Quick Service, as the parties challenging J & J's Application, who bear the burden of rebutting this presumption. Id. In addition to evidence of its current certification, J & J presented evidence of its finances, its employees and their training, its vehicles, and details of its operations. The PUC also reviews "[a]n applicant's record, if any, of compliance with 66 Pa. C.S. (relating to the Public Utility Code), this title and the [PUC's] orders." 52 Pa. Code § 41.14(b)(5). The credited evidence satisfied J & J's initial burden of showing it is technically and financially fit to operate. The burden then shifted to the protestants to show that the authority should be withheld because J & J "lacked the propensity to operate safely and legally." 52 Pa. Code § 41.14(b).
The PUC interprets the phrase "lacks a propensity to operate safely and legally," to mean a "persistent disregard for, flouting, or defiant attitude toward the [Code], or the orders and regulations of the [PUC]," (PUC Op. at 11-12 (quoting Application of Central Transport, Inc., Docket No. A-00108155 (Order entered June 26, 1992)). Lehigh asserts that the PUC should not have applied its interpretation as set forth in Application of Central Transport, Inc.. However, an agency's interpretation of its own regulation is entitled to deference unless clearly erroneous. Energy Conservation Council, 995 A.2d at 478. The term "propensity" is not defined in the Code, but it has been defined as "a natural inclination: innate or inherent tendency." Webster's Third New International Dictionary 1817 (2002). An applicant's inadvertent or isolated violation of the Code or its certificate does not demonstrate that it is naturally inclined or has an innate tendency to operate unsafely or illegally. We conclude that it is not clearly erroneous for the PUC to require that, in order to rebut a determination of an applicant's fitness to operate, a challenger must demonstrate that the applicant has a "persistent disregard for, flouting or defiant attitude," Application of Central Transport, Inc., before that applicant is considered to have a propensity, i.e., a natural inclination or innate or inherent tendency, to operate outside of safety and the law. Accordingly, we will defer to the PUC's interpretation.
Lehigh also argues that the PUC should have given more consideration to its allegations of J & J's misconduct and that its allegations are similar to those in Limelight Limousine, Inc. v. Pennsylvania Public Utility Commission, 580 A.2d 472 (Pa. Cmwlth. 1990). In Limelight Limousine, during hearings on an application to operate an airport transport service, a former co-worker testified that several hours after he and applicant got into an argument regarding picking up fares at an airport terminal, the applicant and another person physically attacked him, beat him up, and caused the witness's van to coast down the street. The witness acknowledged that he did not get a good look at the second person who attacked him and testified that, following the attack, he spoke with his employer, who eventually put the witness in touch with the challengers to applicant's application. The ALJ: questioned the veracity of the witness's testimony because he testified that he did not get a good look at his attackers and, therefore, could not be sure the applicant was involved; speculated as to why the witness and applicant's former employer contacted the challenger's attorney; and speculated as to why certain other witnesses did not testify in the matter. Accordingly, the ALJ granted the application, and the PUC affirmed. On appeal, we determined that the basis for the ALJ's and PUC's rejection of the witness's testimony was not supported by the record and that the ALJ impermissibly relied upon speculation regarding questions not before him to reject that testimony. Therefore, we vacated the order and remanded to the PUC to reconsider that testimony. In doing so we stated:
The fact that the PUC may deny an application for a certificate of public convenience on the basis of prior convictions does not logically lead to a conclusion that the PUC may not deny a certificate unless it is presented with proof of a conviction. If that were the case, then the PUC would be "justified" in declining to consider evidence that a taxicab operator who had applied for increased authority was under indictment for assaulting a passenger. The [Code] and the decisions of the courts of this Commonwealth impose a duty on the [PUC] to protect the safety of passengers of common carriers of persons by motor vehicles. The [PUC] fails to perform that duty when it fails to give proper consideration to allegations of serious misconduct directly relating to the propensity of an applicant to operate safely and legally.
Id. at 479 (emphasis in original).
Lehigh contends that its allegations of J & J's misconduct, including the existence of complaints against J & J, that J & J did not comply with its tariffs and present certificate, and that J & J advertised services beyond the scope of its authority, were more than sufficient to demonstrate that J & J does not have the propensity to operate safely and legally. According to Lehigh, the fact that J & J has never been found to have violated the Code, regulations, or a PUC order should not preclude the PUC from considering allegations of misconduct as in Limelight Limousine, particularly where there is no evidence that the violations were inadvertent or based on a misunderstanding of the law. Indeed, Lehigh contends this is precisely the type of misconduct the PUC warned about in Re Lemanowicz, 70 Pa. P.U.C. 278 (1989), in which the PUC stated:
The granting of authority to someone who the [PUC] believed was lacking a propensity to operate legally would pose different threats. Primarily, of course, such a grant would tend to undermine regulatory structure. Lawful operators, seeing that unlawful operation had no effect on the granting of authority to operate, could well be tempted to [engage] in unlawful activities of their own. Without the deterrent effect of operators' knowledge that illegal activity could lead to a finding of lack of fitness which would preclude the granting of new authority, the regulations governing grants of authority could become virtually meaningless.
Id. at 296 (emphasis omitted).
However, unlike in Limelight Limousine, the PUC did consider the testimony presented and, for reasons it explained, did not give significant weight to Lehigh's allegations. The PUC did not give much weight to the alleged tariff violations because J & J's witnesses only merely believed or thought they were charged a flat rate. Similarly, Lehigh's General Manager and consultant testified regarding alleged solicitations from J & J drivers and, for specified reasons, the PUC did not find that any violation occurred. Likewise, the PUC considered the internet advertisements and concluded that, while unclear, the lack of clarity did not establish that J & J had disregarded the legal requirements. The PUC also considered the two complaints, one of which had been dismissed by the PUC and the other settled with the understanding that it would have no impact on future determinations of J & J's fitness. The PUC also considered Ms. Cali's credited testimony that J & J was unaware of Lehigh's allegations, would investigate, and would discipline any driver violating the law. In essence, Lehigh is asking this Court to reweigh the evidence, find that violations of J & J's tariffs and certificate occurred, and come to a different conclusion than the fact finder, which is clearly beyond the power of this Court. Popowsky, 550 Pa. at 462, 706 A.2d at 1203. The PUC considered the factors, which include J & J's 25 years of experience, the testimony, and the evidence and concluded that uncredited allegations of isolated incidents of misconduct were not sufficient to establish that J & J lacked the propensity to operate legally and safely. We cannot find that the PUC erred in reaching that conclusion.*fn7
Accordingly, the PUC's Order is affirmed.
Lehigh Valley Transportation : Services, Inc., : : Petitioner : : v. : Pennsylvania Public Utility : Commission, : : Respondent :
No. 19 C.D. 2012 :
NOW, October 10, 2012, the Order of the Pennsylvania Public Utility Commission in the above-captioned matter is hereby AFFIRMED.
RENEE COHN JUBELIRER, Judge
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August 27, 2012
DEBRA PORTER, PLAINTIFF,v.TD BANK, N.A., ET AL., DEFENDANTS.
Plaintiff, Debra Porter, sues defendant, TD Bank, N.A. ("TD Bank"),*fn1 seeking a judicial declaration that she holds a mortgage that has priority over TD Bank's mortgage on certain real property. A failed business venture to develop the property has spawned extensive litigation in Pennsylvania state court in addition to this federal action. TD Bank and Pardes Group, Inc. ("Pardes"), which intervened as a defendant in this matter, argue that plaintiff is collaterally estopped from claiming priority over TD Bank's mortgage by virtue of the state-court litigation. Defendants seek summary judgment under Federal Rule of Civil Procedure 56 on this basis. For the reasons set forth below, I will grant defendants' motion.
I. Factual Background and Procedural History*fn2
A. Factual Background*fn3
Plaintiff and her husband, James Porter, owned property at 1039-55 Frankford Avenue, Philadelphia, Pennsylvania (the "Property"). (Am. Compl. ¶ 6.) James Porter and Nunzio Terra, who is not a party to this federal action, formed Porterra, LLC ("Porterra"), in order to develop the Property and another neighboring parcel of land (the "Development Project") owned by Nunzio Terra and his wife, Laura Terra. (Id. at ¶¶ 6-7; Pardes Group, Inc.'s Mot. for Summ. J. ("Summ. J. Mot.") Ex. B at 2; Pardes Group, Inc.'s Br. in Supp. of Mot. for Summ. J. ("Pardes Br.") at 2.) Nunzio Terra and James Porter, the only members of Porterra, executed a Joint Venture Agreement (the "JVA") on July 20, 2005, in which each agreed to contribute their respective parcels of land to Porterra. (Am. Compl. ¶ 8; Summ. J. Mot. Ex. B at 2; id. Ex. P at 15-24.) Nunzio Terra, however, never transferred his land to Porterra. (Summ. J. Mot. Ex. B at 2.)
According to plaintiff, James Porter signed a deed transferring the Property to Porterra on May 20, 2005. (Id. at 2 n.2; Am. Compl. ¶ 9; id. Ex. A.) However, plaintiff claims that she refused to sign the deed until she was granted a mortgage on the Property. (Am. Compl. ¶ 10; Summ. J. Mot. Ex. B at 2 n.2.) She maintains that Porterra acquiesced to her demands, so she executed the deed and received a mortgage on the Property securing a note for $2,800,000 from Porterra ("plaintiff's mortgage") on July 20, 2005, the same day the JVA was executed. (Am. Compl.¶¶ 10-13; Summ. J. Mot. Ex. B at 3.) Plaintiff claims that she entrusted the original copy of her mortgage to United Land Transfer, LLC ("ULT"), a title company that handled the closing, for recording and that she retained a copy for herself. (Am. Compl. ¶ 15; Summ. J. Mot. Ex. B at 3.) Unbeknownst to plaintiff, ULT was owned and operated by Nunzio Terra at the time and the title company never recorded her mortgage.*fn4 (Am. Compl.¶ 14; Summ. J. Mot. Ex. B at 3.)
TD Bank agreed to provide financing for the Development Project, but upon discovering plaintiff's mortgage it requested that plaintiff sign a subordination agreement allowing TD Bank to assume a senior lien position. (Am. Compl. ¶¶ 16-17; id. Ex. D; Summ. J. Mot. Ex. B at 3; Pardes Br. at 2.) Plaintiff never signed the subordination agreement but Nunzio Terra, acting for Porterra, obtained a construction loan for $5,860,000 from TD Bank on August 24, 2005. (Am. Compl. ¶¶ 18-19; Summ. J. Mot. Ex. B at 3; Pardes Br. at 2.) The loan is secured by an "Open- End Mortgage and Security Agreement"*fn5 ("TD Bank's mortgage") on the Property that was recorded on August 25, 2005.*fn6 (Am. Compl.¶ 14; id. Ex. E; Summ. J. Mot. Ex. B at 3; Pardes Br. at 2.)
The Development Project ultimately failed, leading to several state-court actions and this federal action. (Am. Compl. ¶ 23.)
B. Procedural History
i. The Porterra Action
On July 17, 2006, plaintiff and her husband brought a legal action (the "Porterra Action") against Porterra, Nunzio Terra, Laura Terra, ULT, and others in the Philadelphia Court of Common Pleas. (Id. ¶ 23; Summ. J. Mot. Ex. B at 3-4; id. Ex. I at 5-6.) In the Porterra Action, plaintiff and her husband sought, inter alia, to have plaintiff's mortgage recorded, or alternatively, money damages for the deprivation of plaintiff's security interest in the Property. (Am. Compl. ¶ 24; Summ. J. Mot. Ex. H at 42, 48-49.)
Plaintiff and her husband did not initially name TD Bank as a defendant in the Porterra Action. (Am. Compl. ¶ 25.) TD Bank, however, intervened in the action for limited purposes on January 8, 2008. (Id. ¶ 26; Summ. J. Mot. Ex. I at 22.) On November 16, 2009, plaintiff and her husband moved to join TD Bank as a defendant in the Porterra Action, but their motion was denied as untimely by order of the state court dated December 10, 2009, because it was made more than three years after the commencement of the suit and after discovery had concluded. (Summ. J. Mot. Ex. I at 44-45.)
On December 23, 2009, the Court of Common Pleas ordered that default judgments be entered against Porterra, ULT, and two other defendants in the Porterra Action. (Id. at 47.) After a damages hearing on January 11, 2010, the Court of Common Pleas awarded damages of $3,696,001 in favor of plaintiff and her husband. (Id. at 50; Am. Compl ¶ 44.) Plaintiff and her husband did not appeal this damages award or the failure of the court to act on their request for the court to order that the mortgage be recorded. (Summ. J. Mot. Ex. I.)
ii. The Foreclosure Action
On February 28, 2007, TD Bank initiated a foreclosure action (the "Foreclosure Action") with respect to the Property in the Philadelphia Court of Common Pleas. (Am. Compl.¶ 34; Summ. J. Mot. Ex. G at 5.) Plaintiff was not a party to the Foreclosure Action. (Am. Compl. ¶ 35; Summ. J. Mot. Ex. B at 1.) Nevertheless, on April 13, 2007, the court consolidated the Foreclosure Action and the Porterra Action for discovery and notice purposes on motion by plaintiff and her husband. (Summ. J. Mot. Ex. B at 5; id. Ex. G at 5-6; Pardes Br. at 2-3.)
On June 9, 2009, the court entered a judgment in foreclosure with respect to the Property. (Summ. J. Mot. Ex. G at 22; Pardes Br. at 4.) And the court entered judgment in favor of TD Bank and against Porterra in the amount of $5,364,322.96 on or about September 9, 2009. (Am. Compl. ¶ 43; Summ. J. Mot. Ex. G at 22; Pardes Br. at 4.) A sheriff's sale of the Property was scheduled for January 4, 2011. (Am. Compl. ¶ 46.)
On December 14, 2010, more than a year after entry of the foreclosure judgment and after the sheriff's sale had been noticed, plaintiff moved to postpone the sheriff's sale. (Am. Compl. ¶ 49; Summ. J. Mot. Ex. B at 4; id. Ex G. at 24; Pardes Br. at 4.) The next day, December 15, 2010, the Court of Common Pleas denied the motion to stay because plaintiff was not a party to the Foreclosure Action. (Am. Compl. ¶ 50; Summ. J. Mot. Ex. B at 6; id. Ex. G at 23; Pardes Br. at 4.)
Following the denial of her motion to stay, plaintiff filed a motion for reconsideration and for leave to intervene in the Foreclosure Action on December 15, 2010. (Am. Compl. ¶ 51; Summ. J. Mot. Ex. B at 6; id. Ex. G at 22; Pardes Br. at 4.) On December 29, 2010, the Court of Common Pleas denied that motion stating that "[plaintiff] is judicially and collaterally estopped from claiming anything more than a subordinate mortgage on the [P]roperty . . . . The [TD Bank] mortgage, which was the subject of this foreclosure action, has priority over her claimed lien." (Am. Compl. ¶ 57; Summ. J. Mot. Ex. B at 6; id. Ex. G at 26; Pardes Br. at 5.)
Plaintiff filed a motion to reconsider the denial of her reconsideration motion on January 3, 2011, which the court denied on January 6, 2011. (Summ. J. Mot. Ex. B at 6; id. Ex. G at 27; Pardes Br. at 5.)
The Property was sold by sheriff's sale for $1,250,000 on January 4, 2011. (Am. Compl. ¶ 65; Pardes Br. at 2.) Pardes initially purchased the Property, but later assigned its bid to a third party. (Pardes Br. at 2.) Plaintiff then filed a motion to set aside the sheriff's sale on January 14, 2011, (Summ. J. Mot. Ex. G at 27), which the court denied on February 8, 2011, (id. at 28).
Plaintiff appealed the denial of her motion to stay the sheriff's sale. (Summ. J. Mot. Ex. B at 1.) On April 10, 2012, the Superior Court of Pennsylvania issued a non-precedential decision affirming the Court of Common Pleas. (Id.) In the decision, the Superior Court concluded that "a common claim arose in the [Porterra] Action and [the Foreclosure Action]-[Mrs. Porter's] alleged priority interest in the [P]roperty arising from [her mortgage]." (Id. at 12.) The court noted that "[t]here was a final judgment on the merits in the [Porterra] Action, and [TD Bank] had intervened in that matter" and that "[Mrs. Porter] had a full and fair opportunity to litigate this issue in the prior adjudication." (Id. at 12.) Therefore, the Superior Court "agree[d] with the trial court that [Mrs. Porter] is collaterally estopped from arguing that her unrecorded mortgage of July 20, 2005, has a priority position over [TD Bank's] August 25, 2005[,] loan." (Id. at 12-13.) Plaintiff did not petition the Supreme Court of Pennsylvania for allowance of appeal.
iii. Federal Action
Plaintiff commenced this declaratory-judgment action on December 12, 2010. She seeks a declaration that her mortgage on the Property has priority status over TD Bank's mortgage on the Property. Pardes filed a motion for summary judgment on May 21, 2012, and TD Bank joined in that motion on June 14, 2012.
II. Standard of Review
A motion for summary judgment will be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts that could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 743 (3d Cir. 1996). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
III. Discussion
Defendants argue that the doctrine of collateral estoppel, or issue preclusion, bars plaintiff's claim that her mortgage on the Property has priority over TD Bank's mortgage. "Collateral estoppel operates to bar 'successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination.'" Nationwide Mut. Fire Ins. Co. v. George V. Hamilton, Inc., 571 F.3d 299, 310 (3d Cir. 2009) (quoting New Hampshire v. Maine, 532 U.S. 742, 748--49 (2001)). The Full Faith and Credit Act, 28 U.S.C. § 1738, requires that state-court decisions be given the same preclusive effect in federal court as they would be given in courts of the rendering state.
In particular, defendants urge me to give preclusive effect to the April 10, 2012 decision of the Superior Court of Pennsylvania. In that decision, the Superior Court held that "[Mrs. Porter] is collaterally estopped from arguing that her unrecorded mortgage of July 20, 2005, has a priority position over [TD Bank's] August 25, 2005 loan." (Summ. J. Mot. Ex. B at 12-13.) In essence, defendants argue that the state court's preclusion determination is itself preclusive.
While this application of state-court preclusion principles to a state court's decision applying these very same principles may be unusual, it is not entirely unprecedented. In Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986) the United States Supreme Court addressed the effect of a state court's preclusion determination in a related federal-court action. In that case, Parsons Steel sued a bank concurrently in state and federal court. Id. at 520. In the federal action, which was tried first, the district court granted a judgment n.o.v. to the bank. Id. The bank then pled the defenses of res judicata and collateral estoppel in the state-court action.
Id. The state court rejected the res judicata argument and Parsons Steel obtained a jury verdict against the bank in the state action. Id. Instead of appealing the state court's determination with respect to res judicata, the bank sought injunctive relief against Parsons Steel in federal court. Id. at 520-21. Ignoring the state court's preclusion ruling, the district court concluded that res judicata should apply and enjoined Parsons Steel from further prosecuting the state action under the Anti-Injunction Act, 28 U.S.C. § 2283. Id.
On appeal, the Supreme Court concluded that "the Full Faith and Credit Act requires that federal courts give the state-court judgment, and particularly the state court's resolution of the res judicata issue, the same preclusive effect it would have had in another court of the same State. Challenges to the correctness of a state court's determination as to the conclusive effect of a federal judgment must be pursued by way of appeal through the state-court system and certiorari from this Court." Id. at 525. Thus, the Court remanded the case to the district court to determine whether under state law "the state-court judgment [of res judicata] is . . . entitled to preclusive effect." Id. at 526.
Although Parsons Steel involved res judicata rather than collateral estoppel, it is nevertheless instructive. Following this approach, I will not consider whether the Superior Court was correct in concluding that plaintiff is "collaterally estopped from arguing [that] she holds a priority mortgage." (Id. at 10.) Instead, I must consider only whether another Pennsylvania state court would afford collateral-estoppel effect to the Superior Court's judgment of collateral estoppel. For that, I turn to Pennsylvania law.
Under Pennsylvania law, collateral estoppel applies if (1) the issue decided in the prior action is identical to the one presented in the later action; (2) there was a final judgment on the merits in the prior action; (3) the party against whom collateral estoppel is asserted was a party to, or is in privity with a party to, the prior action; and (4) the party against whom the collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.*fn7 See Nationwide Mut. Fire Ins., 571 F.3d at 310 (citing Rue v. K-Mart Corp., 713 A.2d 82, 84 (Pa. 1998)).
First, the issue decided by the Superior Court is identical to the issue raised by defendants' motion for summary judgment. Here, plaintiff seeks only a declaration that her mortgage has priority status over TD Bank's mortgage. (Am. Compl. at 10.) The issue currently before me is whether plaintiff is precluded from claiming such priority status. This is precisely the issue addressed by the Superior Court's decision, which held that "[Mrs. Porter] is collaterally estopped from arguing that her unrecorded mortgage of July 20, 2005, has a priority position over [TD Bank's] August 25, 2005 loan." (Summ. J. Mot. Ex. B at 12-13.) So, the first element of Pennsylvania's collateral-estoppel inquiry is satisfied.
Second, the Superior Court's April 10, 2012 memorandum decision is a final judgment on the merits for preclusion purposes even though it is non-precedential. Pa. Super. Ct. Internal Operating P. § 65.37(A) ("An unpublished memorandum decision . . . may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel."); Allen v. Pa. SPCA, 488 F. Supp. 2d 450, 466 (M.D. Pa. 2007) ("The superior court issued its ruling . . . in an unpublished memorandum decision. Such decisions may be relied upon or cited when relevant for preclusion purposes.")
Third, although plaintiff was not a party to the underlying Foreclosure Action, she was a party to the appeal-in fact, she was the sole appellant. As a party to the Superior Court's decision, plaintiff can fairly be bound by the court's collateral-estoppel determination and plaintiff does not argue otherwise.
Finally, plaintiff was represented by counsel on appeal (Summ. J. Mot. Ex. B at 7), and the Superior Court heard argument from counsel on February 15, 2012, (Pardes Br. at 14). Plaintiff had a full and fair opportunity to litigate the collateral-estoppel issue in the Superior Court.
Because I must accord the Superior Court's April 10, 2012 decision the same preclusive effect that it would be given by Pennsylvania courts and because the Superior Court determined that plaintiff is precluded from arguing that her mortgage has priority over TD Bank's mortgage, collateral estoppel bars plaintiff's claim here.
IV. Conclusion
For the reasons explained above, I will grant defendants' motion for summary judgment.*fn8
An appropriate order accompanies this memorandum.
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15-17 O'Rourke Drive Lincoln, NH 03251
Listed by John (jay) Polimeno of Polimeno Realty
Call Four Seasons Sotheby's International Realty Real Estate for more information.
Acreage: 0.9
Year Built: 1956
Square Feet: 4,223
Units: 0
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Extraordinary commercial-residential opportunity in the heart of New Hampshire's White Mountains, just south of Franconia Notch State Park. The property is located on Daniel Webster Highway, Route 3, one of only two designated scenic highways in the state. Surrounded by hotels, motels, restaurants, and attractions, the property includes 3400 square foot commercial space, 3BR ranch style home, and a free standing workshop. This is a great small business relocation opportunity or the perfect investment opportunity to own a home and lease the commercial building. The commercial space is currently vacant with the Seller looking for a tenant at $1200 per month. Seller financing is available to qualified buyers as the Seller is willing to be creative to address specific buyer needs.
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in side the city nothing
It was everything we needed at the end of 2 weeks in Morocco. Great room and good food, perfect before flying home.
Attitude of staff; courteous and always helpful. Service in breakfast room rapid and efficient. Lack of types of tea in Breakfast room. Earl Grey everywhere but no other types e;g. Ceylon, Darjeeling. Bathrooms need a hand shower 'rose'.
The Disco Old, badly in need of renovation
water chain is not in bathroom is not working water chain is not in bathroom is not working, bathroom light blinking, gel recipient difficult to get the gel,
The comfort of the room and lobby. The buffet menu for dinner should have had better and elaborate choices. The front office staff could have been more pleasant and courteous.
The hosbatalaties and car park in hotel Inter net not free like other hotels
All stayed in sheraton was very nice no problem the securty in the floor
functional facilities, modern tasteful finishes, comfortable no scenic surrounds
breakfast great.nice erea.nice personale.
The room is spacious and clean. The breakfast is very good. not particular, except the price is a bit steep for Morocco.
The staff was very attentive to our stay at the hotel. Is as advertised! wished they has a fitness center
The location of the hotel is within walking distance of restaurants and other services, the breakfast looked fabulous and the staff was courteous and professional.
The hotel is popular and is known by most of the taxi drivers in Casablanca.It is new and modern looking. The rooms are spacious and nicely furnishued. The bathrooms are clean and bright.The bathroom complimentaries are quite good and varied and differ from the usual ones available in the most hotels. The receptionists are not quite friendly and their command of English is insuficient. We had a minibar issue as we were said to have had sweets and soda which was not true. At check-out the receptionists ere in expectation of tip for nothing.
Beautiful hotel, with perfect services. Breakfast very good. Rooms are clean, proper and luxurious!
Western style in Cassablanca
Staff inside and outside (parking man), it was clean and design. Good price for the quality. I do really recommend it. I will go back there for sure. Moreover, in the center f the city. Situation perfect and easy to find. nothing, everything was perfect!
Really nice room, quiet hotel, comfortable bed, and great views of the mosque and the sea. Problem with the reception staff, wouldn't accept my ID card, said I needed my passport, which wasn't true. Had to sort out the issue with the hotel manager. Wasn't a great welcome.
Not sure hotel did apply the price displayed at booking .com
very bad stuff esp night manager not good
I like location Staff need training about customer service. I paid for Sky Deluxe Double Room With Panoramic City view , they give smoking room 302 with NO VIEW . I checked out 1am .
Location Service
The rooms, decor, the swimming pool. Location is extremely noisy at the juncture of constant 24 hour traffic. The service in the hotel was woeful, very poor.
the bed was comfortable and the rooms clean horrible reception in the SPA ! - continuous disturbance in rooms by traffic noice - poor insulation! The bathroom was beautiful but with technical problems: plumbing not working (water blocked in the shower)
Nearest good hotel to the airport Reserved room not available before 18.00 h
i liked the freindly staff and the services the hotel is offering. it's is a very clean hotel away from noise and night girls no
everything the service receptions number 5 was very kind and very professionalespecially sky 28 the lounge area the food the panoramic view excellent
receptionist number 5 was very kind and outstanding the professionalI wish I can remember her name,also the panoramic view of the whole city from the sky 28 Lounge and also the view is great for my room
Thé Room They said I steel a lamp !!!!!
good location in Casablanca center Room service is terrible. They say yes, yes, even if they didn't understand what you are asking for
I stayed in the executive suite for one night. Service was excellent. Sheets were clean. For a five star hotel and paying high rates for this room, I was not too happy to find stains in the bathroom. It seemed as if someone had just quickly wiped the bathrooms with a dirty damp rag. As far as food, breakfast was in a lounge exclusive for that floor. Very courteous staff working there. Afternoon cocktails also available there. No free internet. It should be mandatory at all hotels. Over-all I would recommend staying here if your willing to pay these rates.
Following both picks and description, we chose the Hyatt for our first night in Morocco. While the hotel looks beautiful, is centrally located, and has a nice pool and OK-ish gym (Technogym equipment but from at least 2 or 3 generations ago), we had several disappointments: 1) There was hair in our supposedly clean bathtub, 2) there was a half eaten meal, chocolate bar and half drunk bottle of water in our supposedly re-stocked minibar, 3) it took a call to the front desk and then another call 30 mins later to the manager to get 1) and 2) addressed, 4) on checkout the front desk clerk tried to charge us for the room and internet usage (which we tried to use but encountered an error), 5) there was mold on the shower head in the shower and the shower head in the bath had leaks that caused it to spray over the bathroom floor. In summary, not what one expects for US$+ a night. To be fair, the Director of rooms ensured problems 1 and 2 were fixed with our second call and accepted the fee...
Veldig bra opphold. Ekspedere en kunde om gangen i resepsjonen, ved utsjekk håndterte respesjonisten 3 kunder samtidig og jeg holdt på å miste et tog pga. av dette.
Fornøyd med rom og rengjøring og serveringspersonalet. Ikke alle ansatte i resepsjonen er like erfarne og kunnskapsrike. Flere sommeransatte som ikke engang vet hvor nærmeste minibank ligger. Litt mer kursing for resepsjonsvikarer.
Very nice welcoming, room junior suite comfortable, clean and nice. The bathroom only with shower and WC is in the different room.
on the whole helpful, efficient, pleasant staff bad internet connection, grumpy night receptionist (06/01)
Modern design Should be cleaner[especially floors]
Very nice rooms and great location. Smell of cleaning agents in hallways.
Good location. Large rooms.
Very responsive staff--treated me like a VIP and immediately fixed any problems that arose Good location Huge rooms Comfortable bed and nice linens Breakfast is a bit expensive
Big rooms Problematic internet, broken windows, very noisy inside and outside... i left the next day, i pay only 1 night, but in reception they try to charge double taxes, and try to tell me that i have to pay all the reservation.
great hotel with great room close to all sights, excellent stuff: when we had problems with the rental car company they let us phone from the reception and we only payed 40 Dirham for an international call to the UK and a call inside casablanca sauna and hammam only usable when you book in advance, taxi they called us to the airport wanted to charge 400 Dirham but as I told the driver we only payed 250 from the airport to the hotel we payed 300 at the end
Love the decor Breakfast is really expensive!!
Nice small hotel, nice area and very spacey rooms Rooms facing the main road are very noisy
The room was clean and there was secure parking. We requested a single bed and the gave us two twins. For being a very friendly country as a whole, the checker hardly said a word to me. I think they were rude and we received a crappy room on the first floor because we bought through a discount site. It was impossible to get to the beach from the hotel, and the staff just pointed...we know the direction of the beach. None of the work out machines were functioning, wifi in the room did not work (you had to be in the lobby), and the atm machine was turned on.
The sea view The AC was so noisy and the room was old
Bed was comfortable. Hotel not at all as represented on pictures. Breakfast food wasn't fresh. Safe bet is yogurt! We ate a lot of it:-) Very disappointing.
It was nice to stay in a small inn style hotel rather than a big modern one, while in Casablanca. The staff helped with some issues we were having with the airport pickup for our friends. Dinner at the hotel was good, albeit a bit pricey and the wine selection was also pricey.
Very basic room, a little overpriced for what you get, but the location is excellent, close to the beach, Hassan mosque, and fine for one night.
i liked internet free facility..although some time crowded..hotel needs more than one internet..together with printing facilility. room service is poor, safe deposit boxes are out of date...a copy of document, or sending a fax costs 100 dirhames which is very high indeed.
Friendly personel always willing to help. Price should have been lower considering the age of the hotel. Expected something better.
The best thing about my room was the veiw over the Ocean. The Swimming pool was clean and tidy, the staff were pleasant and helpful and were always available to provide assistance. Not a great problem however, the fridge in my room could not be plugged in unless I moved and unplugged the television- so I never used the fridge, breakfast could have been better but all in all it was a pleasant hotel and good value for money (the hotel staff were extremely helpful in helping me understand the bill and were quickly able to convert to currencies I understood. I would use this hot again. lastly TV films for an english speaker were excellant and great way to spend down time. No
Fantastic location! Right on the beach with plenty of cafe/bars etc to choose from, whilst only being a quick taxi trip to the centre. Hotel could do with a re-fresh, but it still allows for a comfortable stay. We expected the mosque to be right outside, but were pleasantly surprised to get sea views (and the mosque is a couple of miles away!)
the size of the room, its furniture and layout, the view of the ocean the friendliness of staff. no comment
Nice big Rooms and suites, tastefully furnished but very poor lighted, almost to dark to move safely in the aisles. a bit worn out and the most annoying thing is an awful perfume crawling thru the hall and aisles. I could hardly breath and all the clothing smells like it when you leave the hotel, therefore i won't choose this hotel once again.
The staff at the Hotel was incredible. They were always helpful and polite and handled our every need. I had an accident while there and severely sprained my ankle. The staff arranged for a Dr to come to my Hotel room and the entire staff took care of me. Even the Manager called my room the next day to check on me. It was incredible to be so well treated. I couldn't have been more pleased with my stay. A heartfelt "Thank You" to the entire staff.
Some of the staff are very rude
Large rooms, great location, clean. Didn't think the breakfast was up to much
Good location, very pleasant room with nice balcony and a great value at the price.
Very nice room and very good value for money. Rooms can be a little noisey due to third parties.
We stayed at the Hotel Amoud in Casablanca for three nights in chilly November. The room had lots of hot water, comfortable beds and was heated (which has been a rarity of 'budget' hotels in Morocco). We checked in at 3:00 am after a late flight from Egypt and were ecstatic to see a friendly man at the desk who checked us in very efficiently. All of the staff were friendly. The wifi worked well in our room. The neighborhood is a little rough and ready, but from what I saw of Casablanca that seemed to be the norm. Our room was a little noisy from other hotel guests (doors slamming, people chatting in the hallway, the tv next door) so it might not be a good choice for light sleepers.
Staff were pleasant. Room was clean. Location was close to the centre of town.
Staff was super friendly; breakfast was served very fast and had generous portions, and was available until noon; nice little restaurants nearby, as recommended by staff n/a
Nothing The staff in reception , and your price was mach higher than the hotel price !!! this is unaccaptable
Really nothing 1- room was not clean. 2- charged me on local currency (Moroccan Dirham) instead Euro. 3- No coffe/tea facilities 4- not directly to the beach. 5- Other more.
Too expensive
Most of the staff are OK, especially the luggage boy are very friendly. the front desk staff are extremely rude as one lady tried to charge me extra one night and after she found that she can not she did not even apologies
Day spa and french resturant were excellent. Room was very well presented and lovely to stay in. Most staff were attentive and accommodating. Amin was one of the male reception staff members who stood out and went above and beyond for us, he also arranged for the reimbursement to be put through to my credit card for the room deposit. A deposit was taken for our stay and we had to prompt the staff for reimbursement. It was also more expensive than what we had arranged through bookings.com yet we were at the end of our trip and just happy to stay somewhere clean and comfortable. I paid for a room with sea views yet was given a standard room, once pointed out it was changed with not much fuss. The hotel does become a nightclub at night so can be noisy with loud music and the water in the shower was lukewarm. However is it Casablanca and when you put everything into perspective with what other accommodation is available I would still recommend it as a place to stay.
Nice (meaning very decent; 90% perfect) staff, nice rooms, nice beds in a nice city with a nice bar and restaurant combined. Just loved the oysters! smokers...!And that the bill was "settled" on my Visa account without my approval; I felt I had only made the booking via Visa !
something different about Morocco after 3 weeks Marakesh to Fez did not honor room type until I made them do so....bill had "other charges" which they acknowledged were not ours and finally took out...
Very bad hotel,,,,,no room service ,no spa,jum,no coffee in the room,very noisy,i feel dad when I pay this amount .....i'm deal with booking.com more than 5 years,but i'm not happy with this hotel , pls reply to me asap.


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Check in from 2:00 PM / Check out prior to 12:00 AM
Spa & Wellness Hotel Diament Ustron: Find photos, reviews, information, amenities and compare prices for 4 stars hotels in Ustron, Poland.
Recently refurbished, Spa & Wellness Hotel Diament Ustron provides modern 4-star accommodation in Ustron. It also features a laundry service, a steam bath and a wake-up service.
Hotel description
There are a variety of facilities at Diament that guests can enjoy, including a garden, parking and a gym. The spa offers a variety of massages and body treatments.
The hotel features rooms equipped with a refrigerator, a mini bar and a flat-screen TV. They have an en suite bathroom with a shower, bathrobes and a hair dryer.
Spa & Wellness Hotel Diament Ustron provides breakfast each morning that guests can enjoy before venturing out to explore the local region.
Hotel features
Mini Bar, Refrigerator, Cable / Satellite TV, Coffee / Tea Maker, Hair Dryer, TV, Shower, En suite, Private Bathroom
Wake-up Service, Laundry service
Fitness Room/Gym, Garden, Spa & Wellness Centre, Steam Bath
Bathrobes, Private Toilet
Availability and Prices
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Users who viewed Spa & Wellness Hotel Diament Ustron also viewed these 4 stars Ustron hotels:
Olympic Hotel Ustron
Grażyńskiego 10, Ustron
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Quantum Of Solace Review: Bond Misses Key Ingredient
November 4, 2008 by admin
Filed under Film Reviews
General release from 31st October 2008
Why is it so difficult to consistently give Bond fans what they want?
It really isn't a complicated formula. But not since the days of Sean Connery has anyone managed to make two good consecutive Bond movies and raise their hands in triumph. Casino Royale: perfect.Quantam of Solace: just another name to add to the tally as if positioned above James Bond's head board.
Now don't get me wrong, I am not longing for the days of Roger Moore's 'embarrassing dad at a wedding' Bond, plucking a pun from the most impossible of angles but a little bit of quirkiness wouldn't go amiss. Daniel Craig constantly looks like he just sat on a garden spade and he's so robotic at times that you have to wonder whether after each take someone had to plug him in and recharge him.
Frustratingly, it doesn't need to be this way. Other Bonds have proved that it's a combination of cool explosions and well, coolness that makes Bond so irresistible. In Casino Royale, Bond's scenes of 'mantalk' (as Ian Fleming would put it) were cinema at it's finest. That, after all is what Bond is all about. I want to see a man that is far cooler than me waste time drinking martinis in swanky bars before handling a twenty minute car chase. Any schmuck can drive sober, Bond should be wreckless. Quantam of Solace starts with action and continues throughout like one big comical chase scene. In fact the only person seemingly unable to predict the next pursuit is a rather dazed and confused camera man who spends his time shaking vigorously like a fat man trying to keep up with an ice cream truck.
Still, there are moments of class. Judi Dench finally looks like a half convincing M and the opening scene between Bond and Mathis is particularly funny. But ultimately there is something missing in this outing. This is not a Bond film with personality and sometimes it feels as though if you blinked suddenly you might see Bruce Willis on screen yelling 'Yippe ki ay' or Matt Damon generally trying to look tough and competent. So, A good action film? Yes. But a good Bond film? Well, lets say it's more like a martini without a twist of lemon: missing a key ingredient.
By Craig Woods


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GAMEFACE : Developing Typefaces for the Xbox 360 and Other Devices
The Xbox 360 game platform was released with a great deal of fanfare surrounding its new product design and user interface. The developers saw the need for a tight brand consistency with print, packaging, and product interface, and chose to commission a new typeface family for use throughout the brand. Steve presents the path to the Xbox 360's new look from the type designer's perspective: the evolution of the product, the design brief, the creative process, and the unique challenges of developing a font for less than optimal screen displays. Steve also discusses the business and technology of fonts, the work for the Android platform and, most importantly, why type matters in an age of multimedia and text messaging.
Speaker: STEVE MATTESON
STEVE MATTESON is the Director of Type Design for Ascender Corporation and has created fonts for use in various screen display environments and print publishing since 1987. A graduate of Rochester Institute of Technology, Steve has an extensive background in typography, design and printing which he has applied to his development of high quality typefaces.
His work can be found in user interface designs (such as Windows Vista, Xbox 360 and Google's Android Platform); in publishing (such as Pescadero Pro, Andy and Endurance Pro); and for corporate branding (such as Symantec, Microsoft and Alcon Labs). He resides in Louisville, CO with his wife, 2 kids and 2 Labrador Retrievers.
A partial showing of Steve' Portfolio can be found here: http://ascendercorp.com/portfolio_commercial.html and here: http://ascendercorp.com/portfolio_custom.html
Google Tech Talks
July, 15 2008


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just follow my simple instructions
- Yield
- 12 over rice
- 2 lbs of ground beef, ground pork and ground turkey.
- 8 tablespoons of Heinz Chili Sauce.
- 6 tablespoons of brown sugar.
- add as much hot sauce as u wish.
- 6 tablespoons of Creamed horseradish.
- 4 tablespoons of Grey Poupon mustard.
- one white onion, chopped
- 2 cloves of garlic, chopped
- 2 cans of chili beans, drained and washed.
- Fresh ground pepper, to taste
- lemon and lime juice from one lemon and one lime.
- Slowly saute the meat mixture until cooked. Drain off grease and set aside. Saute the onion and galic till soft stage. Add back the meat and all other ingredients and slow cook on stove top in large saute pan.
Nutritional Info
- Calories288
- Carbohydrates24 g(8%)
- Fat14 g(22%)
- Protein16 g(33%)
- Saturated Fat5 g(26%)
- Sodium247 mg(10%)
- Polyunsaturated Fat1 g
- Fiber4 g(16%)
- Monounsaturated Fat6 g
- Cholesterol47 mg(16%)


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Submit News
Crytek's Crysis 3 Gets Official for 2013
Shane McGlaun
April 16, 2012 10:46 AM
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Crysis 3 up for pre-order
Of all the game franchises that EA has under its belt, Crysis is often a fan favorite. Fans of the franchise have been waiting to hear official details on the next installment called Crysis 3 and the details were revealed today. EA promises unparalleled visuals and a dynamic shooter game play that we all know and love from the franchise going back to the first installment.
The player will play as Prophet as he returns to New York to discover that the city is now encased in a Nanodome created by Cell Corporation. This Nanodome has seven different environments that are known as the Seven Wonders including an urban rain forest and more.
"Crysis 3 is a thrilling mix of sandbox gameplay, advanced combat and hi-tech human and alien weaponry that shooter fans will love," said Cevat Yerli, Chief Executive Officer of Crytek. "Leveraging the latest CryENGINE technology, we're able to deliver seven unique themes that offer stunning and visually loaded game play experiences. We cannot wait until people get their hands on the game."
The game is set in 2047 as Prophet sets off on a revenge mission after he discovers the truth behind the motives for building the quarantined Nanodomes. The game will get new weapons such as a composite bow, an improved Nanosuit, and new alien technology.
Fans of the game can pre-order the Crysis 3 Hunter Edition of the game to get early access to the signature bow and special attachments along with the special Hunter Nanosuit module giving additional power and functionality. Those that pre-order will also get a bonus XP boost up to level five in multiplayer. The pre-order version is on Origin.com right now for $59.95.
Other select retailers are offering different special pre-order deals including the Stalker Pack offering early access to a semi automatic shotgun with a silencer. The Overkill Pack adds early multiple for access to the typhoon assault weapon and more. The Predator Pack offers early access to the Feline submachine gun.
It's not clear which retailers will be selling those three additional special pre-order packs.
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Bacon Breakfast Sandwiches
Cheesy Egg Avocado and Bacon Breakfast Sandwiches are great way to start the morning from NoblePig.com.
Cheesy Egg, Avocado and Bacon Breakfast Sandwich, a beautiful way to celebrate the morning, from NoblePig.com
Brown Sugar Bacon Breakfast Sandwiches with Chipotle Mayo are the perfect mix of salty, sweet, and spicy for your weekend brunch. @budgetbytes
22. Fried Banana and Bacon Breakfast Sandwich #breakfast #sandwich #recipes http://greatist.com/eat/healthy-breakfast-sandwich-recipes
These Bacon and Egg Grilled Cheese Breakfast Sandwiches from Serena Bakes Simply From Scratch make the perfect Saturday morning breakfast for your family.
Easy, make ahead breakfast sandwiches that are ready when you are. These copycat Egg McMuffins are frozen for quick, healthy breakfasts on the go. | @suburbansoapbox
How To Make Freezer-Friendly Breakfast Sandwiches — Cooking Lessons from The Kitchn | The Kitchn
Cheesy Bacon and Egg Breakfast Bombs are soft and tender portable poppers, stuffed with smoky bacon, scrambled eggs and ooey gooey cheese! This scrumptious recipe is the pull apart breakfast of your dreams!
Breakfast. Yum, fresh avocado looks absolutely delicious paired with bacon and egg on whole grain toast. No recipe so I don't know what the extra ingredient is, possibly some type of preserves, fig would be great! Or with avocado how about strawberry?
Cheesy Egg, Avocado and Bacon Breakfast Sandwich from NoblePig.com.


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Ladner, British Columbia
- 4 Chambre(s) à coucher
- 3 Salle(s) de bain
- 1 Salle(s) d'eau
A propos de cette propriété
NO GST! BRAND NEW Charterhouse 2 level townhome Polygon's newest master-planned Ladner community, Hampton Cove. This beautiful 4 bedroom home features unique details such as welcoming entry porches and window bays, as well as gourmet kitchens and spa-inspired bathrooms. Masterbedroom facing to beautiful golf course. Close to schools, amenities, shops and restaurants, plus a exclusive 12,000sf The Hampton Club House which includs an outdoor pool, fully-equipped fitness studio, gymnasium, and guest suites for out-of-town visitors. Own it today and save waiting time for construction. Won't last long. Call/tex for your private showing today. Open house Sat, Nov 26, 2-4pm
Demander plus de renseignements
Présenté par
- Metro Edge Realty
Éléments de la propriété
- 1,690 pi2 / 157.00 m2 - Aire habitable
- Construit en 2016
Clothes Washer/Dryer,Disposal - Waste,Drapes/Window Coverings,Garage Door Opener,Oven-Built In,Range Top,Refrigerator,Smoke Alarm, Club House,Exercise Centre,Guest Suite,Playground,Pool; Outdoor,Swirlpool/Hot Tub, Golf Course Nearby,Greenbelt,Marina Nearby,Private Setting,Recreation Nearby,Shopping Nearby


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LJWorld.com weblogs Sound Check
Looking Forward: Nov. 28- Dec. 4
Feel Good
Happy Thanksgiving! Stop trying to escape your family by looking for shows. Just kidding, spending that long in the house with the fam might just kill you, and lord knows you've had enough turkey and carbs to feed a small village. Feel Good is a recurring giant multi-genre EDM dance party experience you aren't going to want to miss out on. Live DJ performances by the following: Dreadheadedslut, GadaBeats, Thumpur, Will Funk, and Sehorn. EDM is up and coming in the DJ scene world-wide, so catch some of Kansas's representation. Thursday, Nov. 28, at Bottleneck, 737 New Hampshire, 10 p.m. FREE for 21+. $2 for 18+.
Whatever Forever Cassette Release Show: Ovaries-eez, CS Luxem, Your Friend, Bearded Hall, Max Fields
Lawrence cassette label Whatever Forever is releasing a new 16-track compilation tape called Family Vacation, with songs from many local favorites and musicians elsewhere: Your Friend, Hospital Ships, Julie Byrne (Seattle), CS Luxem, Dubb Nubb (Columbia, MO), Frances With Wolves (St Louis), Cerf Volant (San Francisco), Danielle Rae Comstock, Max Fields, Carey Scott, Levon Realms, No Magic, Rishi, Beaded Hall, Gypsum, and Your Mom's Best Friend. Tapes are available for purchase at the Love Garden as early as Black Friday.
I'm told there's story to go along with each track on the tape so get down to the Love Garden and start asking some of the artists. But first, Danielle Rae Comstock was the mysterious street musician who'd play ukulele in front of the copy store next to Antique Mall. She passed away a few years ago after moving to Portland, but not before Rolf Petermann (facilitates Whatever Forever) recorded her song, "Sing to Me." Saturday, Nov. 30, at Love Garden, 822 Massachusetts, at 6 p.m.
Once you're done getting down to the local sounds curated by Whatever Forever, head over to the Bottleneck to continue to work off that turkey weight with DJ Kimbarely Legal. She spins Afrobeat, reggaeton, funk, hip-hop, moombahton, samba, salsa, bomba and plena, which is enough to get your moving, and she is currently working on new material, which she previewed a taste of at the Taproom DJ Throwdown last weekend (it was fantastic). The show is free for 21-year-olds and just $3 for the minors. Saturday, Nov. 30, at the Bottleneck, 737 New Hampshire, 9 p.m. FREE for 21+
Casey Donahew Band
Their latest album "Standoff" showcasing pure and honest Texas country music, was quite a success, debuting at #1 on the iTunes Country Chart, #8 on the iTunes overall chart, at #7 on the Billboard Country Albums Chart and #32 on Billboard's Top 200 Album chart. Single "Whiskey Baby" is climbing the charts in Texas charts, as well as mainstream country charts, proving to be another sign they are on the verge of breaking out like Texas-born Randy Rogers Band and Eli Young Band (all three include the word "band" in their name, maybe they're onto something). Tuesday, Dec. 3, at the Granada, 1020 Massachusetts, 8 p.m. $18 in advance.
Kanye West: Yeezus Tour [KANSAS CITY PICK]
Love him or hate him, the Kanye is a musical genius, having sold more than 21 million records and 66 million digital tracks worldwide. His latest "Bound 2" music video featuring his topless fiancee, Kim Kardashian, has caused a stir (as does everything he says/makes/thinks), with everyone commenting on the "cheese" factor and phony effects of them riding on a motorcycle through the Grand Canyon. Yeezy commented that it was intentional. Plus it led to the masterpiece that is "Bound 3" parody by James Franco (Kanye) and Seth Rogen (Kim). Even Kanye and Kim had to admit it was brilliant. Kendrick Lamar will be opening for Kanye West. Ok now check out the spoof via Rolling Stone.
Wednesday, Dec. 3, at the Sprint Center, 1407 Grand Blvd., 7:30 p.m., $46.50-127.
Chuck Inglish (from The Cool Kids)
The Cool Kids is an alternative hip hop duo comprised of rappers Antoine "Sir Michael Rocks" Reed and Evan "Chuck Inglish" Ingersoll based in Chicago. Originally linking up to make beats to sell to other artists, the two found their own lyrics to be the best for the production. Chocolate Industries put out their debut album "Bake Sale" in 2008, and their latest album "When Fish Ride Bicycles" was released in 2011. Rapper and producer Chuck Inglish plans to release a new solo LP called "Convertibles," but no date has been finalized. His latest projects have been summer "Droptops" mixtape and "Easily EP" with Mac Miller and Ab-Soul. He is accompanied by Kings Dead and Tayyib Ali on the Wax and Roll Tour, coming through Lawrence. Thursday, Dec. 4, at Granada, 1020 Massachusetts, 8 p.m. $12 in advance.
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