author: BERNSTEIN, J.,

text:
    3000 B.C. v. Bowman Properties Ltd.

      Nancy D. Wasser, for plaintiff.

      Dana S. Plon and Peter A. Lesser, for defendant.
    September 12, 2008
   BERNSTEIN, J.,

Defendant, Bowman Properties, appeals from the court’s denial of post-trial motions following a two-day non-jury trial, which resulted in a finding for plaintiff 3000 B.C. and 3000 B.C. Inc.

On February 21, 2006, plaintiff 3000 B.C. filed a complaint alleging constructive eviction. On March 23, 2006, defendant Bowman Properties answered plaintiff’s complaint with new matter and a counterclaim. On December 6, 2007, a non-jury trial began. Trial lasted for two days and on March 19, 2008, the court returned a finding for the plaintiff in the amount of $236,338.45. On April 8,2008, defendant filed a motion for post-trial relief. Plaintiff responded on April 11, 2008. Oral argument on defendant’s motion for post-trial relief was heard. On August 19,2008, the court denied defendant’s motion for post-trial relief. From this order, defendant timely appealed.

Plaintiff, 3000 B.C., is a professional spa, offering a variety of therapeutic treatments including massage and facials. The success of their business relied on their clients’ happiness and the ability to provide a serene and tranquil environment. This objective was irrevocably destroyed at 3000 B.C., when their Indian flute music was overwhelmed by hammering, sawing, colorful language of construction workers, and by the joyful sounds of gleeful children playing while awaiting their turn at the Hair Cuttery occupying the apartment above. Defendant Bowman Properties understood that 3000 B.C. required a tranquil environment to run a spa because they had leased the property to 3000 B.C. for 12 years.

A covenant of quiet enjoyment is implied into every lease in the Commonwealth of Pennsylvania. This covenant exists between the landlord and the tenant and is breached when a tenant’s possession is impaired by acts of the lessor. “There is an implied covenant for the quiet enjoyment of the demised premises, and it is settled in this state that any... act of the landlord which results in an interference of the tenant’s possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant.” A breach of the covenant can be demonstrated through constructive eviction, if the tenant can establish that the utility of the premises has been substantially and fundamentally impaired. The manner in which defendant leased to the Hair Cuttery, violated the covenant of quiet enjoyment.

In the case of a breach of a constructive eviction, damages can be awarded for all losses which can be proven. A lessee may recover “for all losses which he can prove he has actually sustained, or which he will necessarily sustain, under the circumstances, as a result of the unlawful eviction. The measure of damages has been liberally extended to include ... profits of the business.”

The damages recoverable by a constructively evicted individual tenant are not applicable to the constructive eviction of a business. There is no Pennsylvania appellate decision precisely defining the measure of damages for a commercial constructive eviction. The only reported decision is the decision of Judge C. Darnell Jones in Cafe Parissa Inc. v. 1601 Associates. In that matter, Judge Jones said:

“[Plaintiff] has produced evidence that it incurred damages, including: (1) loss of possession and use of leasehold improvements and restaurant equipment; (2) expenditures made immediately prior to construction for perishable food and restaurant supplies; (3) expenses incurred with respect to maintaining the restaurant’s staff in anticipation of reopening the restaurant; (4) inspection and cleaning incurred as a result of the construction; (5) unreimbursed November rent; and (6) legal fees.”

Few appellate decisions across the country have defined the proper measure of damages for constructive eviction in the commercial context. In John Munich Meat Co. v. Gartenberg, the Illinois appellate court cited 49 Am.Jur.2d Landlord and Tenant §324 (1970) as the law of Illinois:

“In addition to the values of the unexpired term and any direct and reasonably certain lost profits, the tenant may recover compensation for any other loss which results to him as a direct and natural consequence of the landlord’s wrongful act, and which is not attributable to his own fault or want of care.”

The court finds that 49 Am.Jur.2d Landlord and Tenant §499 (2007) correctly states the law of Pennsylvania for constructive eviction of a commercial property. 49 Am Jur.2d Landlord and Tenant §499 states,

“Lost profits may be recovered by a tenant for a breach of the covenant of quiet enjoyment by the landlord when they may be ascertained with reasonable certainty, . . . Thus, where, in the making of a lease, the parties contemplate that the use of the premises will result in a profit for the lessee ... in assessing the damages for breach of the covenant of quiet enjoyment, consideration may be given for loss of those profits with reasonable certainty.”

To recover lost profits, evidence must be introduced which fonns a sufficient basis to estimate with reasonable certainty the total amount of the lost anticipated profits.

As in any other contract action, the purpose of damages is to restore the injured party to the financial position it would have achieved had the contract been fulfilled. “The theory behind this philosophy is based on an attempt to make the non-breaching party whole again, not to provide him with a windfall.” The Pennsylvania Supreme Court has ruled that “[generally speaking, the measure of damages applicable in a case of breach of contract is that the aggrieved party should be placed as nearly as possible in the same position he would have occupied had there been no breach.” This means that the injured party is “entitled to be reimbursed for the money actually paid out and for all reasonable and necessary expenses incurred on the faith of the contract.”

Accordingly, the court in this non-jury trial must determine what the financial position of 3000 B.C. would have been if constructive eviction had not occurred. This analysis begins with determining the length of time for which damages must be awarded. The lease from which the plaintiff was evicted expired on August 1, 2006. Although plaintiff argues that the 12-year rental history would allow the court to presume that the lease would have been repeatedly renewed and therefore calculate damages beyond the August 1, 2006 termination date, the court rejects that proposition. In Pennsylvania, a landlord can refuse to renew a lease for any good reason, for no reason, or any bad reason, as long as no constitutionally protected right is violated. Only speculation could determine the length of a new lease of the adjusted rent if the court were to calculate damages upon the leap of faith that the lease would be renewed. To determine damages upon these assumptions is to rely on speculation upon speculation. This speculation is impermissible.

Plaintiff asks the court to find damages from plaintiff’s historic sales trends which they claim demonstrated a 25 percent annual increase. Sales are not the proper measure of damages because sales utterly fail to account for expenses.

The proper measure of damages to restore the plaintiff to the same financial position it would have achieved if the lease had not been broken and the spa had not been constructively evicted are as follows:

(1) Increased rental payments;
(2) Lost profits;
(3) Expenses incurred in moving;
(4) Incidental expenses such as retraining of employees and gift certificates which will be redeemed in the future;
(5) Attorney’s fees and finally;
(6) Loss of good will.

For the first 11 years, 3000 B.C. lost money every day of business. The proprietor testified that despite tax returns which showed a $12,000 loss in 1995, the truth is that the company actually earned profits between $20,000 and $30,000. However, not one document presented at trial reflected any profit. The rent charged at the premises was $1,500 a month. When forced to move and reestablish their business, 3000 B.C. moved to a property upon which they pay $2,000 a week in rent. Despite a rent increase in excess of 500 percent from $18,000 per year to $ 104,000 per year, the proprietor testified that in the year 2007, the spa will make a profit. If that testimony is truthful, the only possible conclusion is that moving has generated at least $86,000 additional profits used to pay $86,000 increased rents.

The proof presented as to damages is weak. There is however, one measure of damages which can be accurately measured. In 2004, 3000 B.C. reported a loss of $12,000 on its tax returns. In 2005, the year disturbances due to noise began, 3000 B.C. reported a loss of $155,000 on its tax returns. The court concludes that this difference accurately reflects the damage sustained as a result of the constructive eviction due to noise which escalated from modest beginnings in February 2005 to resulting in the forced evacuation in December 2005. Included in this loss are all attorney’s fees paid in 2005, all moving expenses, and additional rent paid in 2005. Accordingly, those damages may not be awarded twice. Defendant has counterclaimed for the rent owed but unpaid in 2006. Defendant is owed this amount. These sums must be deducted from any award because this rent would have been a necessary expense if eviction had not occurred. Accordingly, the sum of $9,794.35 is deducted as a set-off from the recorded additional loss of $143,000 reported to the IRS.

In addition to the loss as reflected on tax returns, the court also awards attorney’s fees as paid in 2006 and 2007 in the amount of $37,389.80. The court also awards as damages the full sum of credits upon future services which were given to customers whose spa treatments had been destroyed in the form of gift certificates. These certificates, which will be redeemed in the future, are in the amount of $6,564. The court awards nothing for retraining expenses. Retraining would have been necessary for any new facility whenever the lease terminated, and the testimony revealed a regular, significant need for retraining new staff because of a recurring problem with staff turnover. The claim for retraining expenses as presented makes no deduction for operating expenses which would have been incurred even if no eviction had occurred. No claim for additional retraining expenses has been proven.

Finally, plaintiff is entitled to an award for loss of good will. The Pennsylvania Supreme Court stated,

“Generally, good will refers to the reputation that businesses have built over the course of time that is reflected by the return of customers and the attendant profits that accompanies such sales. Thus the phrase ‘good will damages’ is coextensive with prospective profits and loss of business reputation.”

While historically our courts had deemed good will damages speculative and disallowed damages, in AM/ PM Franchise Association v. Atlantic Richfield Co., the Pennsylvania Supreme Court held that good will damages are recoverable. The court reasoned,

“We are now in an era in which computers, economic forecasting, sophisticated marketing studies and demographic studies are widely used and accepted. As such, we believe that the rationale for precluding prospective profits under the rubric of ‘too speculative’ ignores the realities of the marketplace and the science of modem economics. We believe that claims for prospective profits should not be barred ab initio. Rather, plaintiffs should be given an opportunity to set forth and attempt to prove their damages.”

In order to recover for loss of good will, the plaintiff must establish that the loss was caused by the plaintiff’s conduct and provide the trier of fact with a reasonable basis to calculate such loss. Damages may be awarded for loss of business reputation even where, as here, an increase in profits has occurred.

It is beyond dispute the disruption described in testimony necessarily causes consternation, hard feelings, ill will, and dismay among clients in a business which had been providing healthful therapeutic serenity to customers for over 12 years at the same location. That is what the law calls loss of good will. It is likewise beyond debate that the abrupt removal from a long established location in the community causes consternation and raises questions of stability among any loyal customer base. It is beyond question that whenever an established business abruptly removes a new location because of a dispute with a long-term landlord, questions are necessarily raised by rumor and innuendo throughout an otherwise loyal customer base, as to whether or not the dispute was the fault of an establishment, which had an otherwise good reputation. Customers must necessarily question whether rent had been paid, whether there was some other fault of the tenant’s, which caused them to pack up in the middle of the night and abruptly move without prior notice. There can also be no question that attempting to provide spa services for a 10-month period under the difficult circumstances described in testimony results in a loss of good will.

The new location has turned out to be a gold mine. Clearly the business is in position to do better than ever. This is a testament to the business’ ability to overcome the loss of good will. An award of $47,190, which is equal to one-third the amount of the lost “profits” awarded herein is hereby entered for a loss of goods.

The court awards $236,233.45 in damages. For the reasons set forth above, the judgment of the court should be affirmed.

      . Raker v. G.C. Murphy Co., 358 Pa. 339, 58 A.2d 18 (1948).

      . No. 14 Coal Co. v. Pennsylvania Coal Co., 416 Pa. 218, 206 A.2d 57 (1965); Einfield v. Shermer, 56 Pa. Super. 4 (1914).

      . Kelly v. Miller. 249 Pa. 314, 316-17, 94 A. 1055, 1056(1915).

      . Pollock v. Morelli, 245 Pa. Super. 388, 397, 369 A.2d 458, 462 (1976) (quoting Minnich v. Kauffman, 265 Pa. 321, 323, 108 A. 597, 598 (1919)).

      . Now President Judge Jones.

      . No. 4272, 2004 Phila. C.C.P. Lexis 10 (June 30, 2004), aff’d, 883 A.2d 684 (Pa. Super. 2005).

      . Id. at 16.

      . 366 N.E.2d 617 (Ill. App. 1977).

      .49 Am.Jur.2d Landlord and Tenant §324 (1970). See also, Purvis v. Silva, 381 P.2d 596 (Ariz. 1963) (stating that in constructive eviction cases, loss of profits from the destruction or interruption of an established business may be recovered if the amount of the actual loss is rendered reasonably certain by competent proof).

      . Pollock, 245 Pa. Super, at 397, 369 A.2d at 462.

      . Bellefonte Area School District v. Lipner, 81 Pa. Commw. 334, 339, 473 A.2d 741, 744 (1984). (footnote omitted)

      . Harman v. Chambers, 358 Pa. 516, 521, 57 A.2d 842, 845 (1948).

      . Emerman v. Baldwin, 186 Pa. Super. 561, 573, 142 A.2d 440, 447 (1958).

      . The court notes that in fact plaintiff’s business has boomed at their new location, far exceeding anything that could reasonably have been planned, projected, or set as realistic goals.

      . Although the proprietor would not characterize this change in fortune as “business booming,” no other reasonable conclusion is possible.

      . AM/PM Franchise Association v. Atlantic Richfield Co., 526 Pa. 110, 127-28, 584 A.2d 915, 924 (1990).

      . Id. at 128, 584 A.2d at 924.

      . Id.

      . Miller Oral Surgery Inc. v. Dinello, 416 Pa. Super. 310, 319-20, 611 A.2d 915, 924(1992).

      . Stott v. Johnston, 229 P.2d 348 (Cal. 1951). In Stott, plaintiff, a painter, brought an action for breach of warranty against defendant, a paint manufacturer, seeking, amongst other damages, damages for the loss of good will. From 1946 to 1947, the plaintiff used the defendant’s paint. During that time period, plaintiff received numerous complaints from clients about the quality of the paint. However, the plaintiff’s net profits increased each year the defendant’s paint was used. The court awarded damages for loss of good will, reasoning that hann had occurred to the painter’s reputation in the community and that plaintiff’s gross profits should have been higher. Id. at 353-55.


source: Caselaw Access Project

author: CHARLES, J.,

license: Public Domain

text:
    Gettler v. Hofer

      ChadE. Rankin, for plaintiffs.

      Danette C. Dean, for defendant.
    September 29, 2008
   CHARLES, J.,

Before us is a motion entitled “plaintiffs’ motion to preclude additional discovery.” While cleverly couched, it is obvious to us that what plaintiffs truly seek is preclusion of testimony by defendant’s expert witness. For reasons that follow, we do not believe that the circumstances of this case justify the “drastic” remedy of evidence preclusion. Thus, we will be denying plaintiffs’ motion. However, because the conduct of defendant’s expert will cause plaintiffs delay and inconvenience, we will be awarding plaintiffs relief that we find appropriate under the circumstances presented.

I. FACTS

On June 13, 2008, we conducted a status conference in the above-referenced case. At that time, counsel for the parties advised us that discovery was nearly complete and that everyone wished to move the above-referenced matter forward toward a trial. As a result of our discussion with the parties, we entered an order establishing August 15, 2008 as a discovery deadline. Everyone’s expectation was that the above-referenced matter could be tried before a jury during the November term of civil court.

By agreement of counsel, both parties agreed that the discovery deadline would not apply to videotape depositions used for trial. Pursuant to this agreement, defendant scheduled the videotape deposition of Dr. Larry Rotenberg for August 19, 2008. On that date, both counsel arrived at Dr. Rotenberg’s office expecting that Dr. Rotenberg’s testimony would be preserved for trial.

When defendant’s counsel met with Dr. Rotenberg prior to commencement of the deposition, she learned for the first time that Dr. Rotenberg had procured psychological testing from two psychologists, Dr. Paul Delfín and Dr. Peter Thomas. Defense counsel notified plaintiffs’ attorney about the situation and provided copies of reports authored by Dr. Delfín and Dr. Thomas. Plaintiffs’ counsel was understandably upset given that he did not even know of the existence of Dr. Thomas and Dr. Delfín until the day of Dr. Rotenberg’s deposition.

Ultimately, Dr. Rotenberg’s deposition was canceled. When defendant’s counsel sought to reschedule, plaintiffs responded with the motion now before us. Both sides have filed briefs in support of their respective positions. The question of whether we should permit Dr. Rotenberg to provide testimony based upon the reports of Dr. Thomas and Dr. Delfín is now before us for disposition.

II. DISCUSSION

We confess that our sympathy and our “gut instinct” favor plaintiffs with respect to this dispute. This case was proceeding forward pursuant to our status conference order, and plaintiffs had every right to rely upon the premise that they would not be blindsided with new and previously undisclosed information. In candor, we take this opportunity to advise defendant that we were very tempted to grant plaintiffs’ motion.

Unfortunately for plaintiffs, the law simply does not favor the relief they seek. With respect to discovery issues, evidence preclusion has been described by our appellate courts as a “drastic remedy” that should be employed only sparingly. See e.g., Kearns by Kearns v. DeHaas, 377 Pa. Super. 200, 546 A.2d 1226 (1988). Our appellate cases consistently instruct us to eschew evidence preclusion as a remedy wherever it is possible under the equities of a given situation. See e.g., Green Construction Co. v. PennDOT, 164 Pa. Commw. 566, 643 A.2d 1129 (1994).

Pa.R.C.P. 4003.5 governs discovery of expert testimony. Sub-section (b) of the rule precludes a party from calling an undisclosed expert. However, sub-section (b) also states: “[I]f the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.”

Sub-section (b) of Rule 4003.5 was invoked by our Supreme Court in Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). In Feingold, plaintiff’s treating physician had been listed as a witness by plaintiff but not defendant. Plaintiff did not call the treating physician. During its case-in-chief, defendant sought to do so. The trial court ruled that defendant could not call plaintiff’s physician because defendant did not list the physician as a witness in his pretrial statement. The Supreme Court reversed the trial court, holding that Pa.R.C.P. 4003.5 requires a trial court to “balance the facts and circumstances of each case to determine the prejudice to each party.” Id. at 573, 517 A.2d at 1273. Among the factors to be used within the balancing test are the following:

(1) Whether the party seeking to call the witness engaged in bad faith;

(2)Did the party seeking to call the witness have the ability to discover the identity of the witness earlier;

(3)Whether the party seeking to call the witness proffered a legitimate excuse;

(4)Did the party seeking to call the witness “willfully” fail to comply with a court order;

(5)Did the party seeking to call the witness intend to mislead or confuse his adversary; and

(6)What is the importance of the proffered testimony. Summarizing all of these factors, the court stated:

“Underlying the cases to which we have adverted are these basic considerations: (1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases of the court, and (4) bad faith [or] willfulness in failing to comply with the court’s order.” Id. at 574, 517 A.2d at 1274.

The principles enunciated in Feingold have been applied on numerous occasions by our appellate courts. For example, in Curran v. Stradley, Ronon, Stevens & Young, 361 Pa. Super. 17, 521 A.2d 451 (1987), the Superior Court reversed a trial judge’s decision to bar defendant’s expert from testifying because he was unidentified in interrogatories. The court emphasized that defendant’s original expert became unavailable shortly before trial and the defendant acted promptly to procure another witness and notify plaintiff of what the new witness would say. Similarly, in Green Construction Co. v. PennDOT, 164 Pa. Commw. 566, 643 A.2d 1129 (1994), the Commonwealth Court upheld a trial court’s decision to permit a defense expert who was only disclosed five days prior to trial. The court stated:

“Assuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that it has been prejudiced from properly preparing its case for trial as a result of a dilatory disclosure____Where there is ambiguity, Rule 4003.5 must be construed to secure a just determination of the action: this will more likely be achieved by receiving relevant evidence than by excluding it.” Id. at 586, 643 A.2d at 1139. (citations omitted) Likewise, in Aiello v. SEPTA, 687 A.2d 399 (Pa. Commw. 1996), the court permitted an expert to testify whose identity had been disclosed 16 days prior to trial. In reaching this decision, the Commonwealth Court emphasized that the aggrieved party did not seek a continuance but chose to “gamble” by waiting for trial to force preclusion of testimony. The Commonwealth Court clearly determined that continuance in order to prepare would have been the appropriate remedy for the plaintiff’s tardy disclosure of the expert.

In this case, we will employ the balancing test mandated by Feingold by discussing each of the factors highlighted by our Supreme Court. Those factors, and how they are implicated by this litigation, are as follows:

(1) Bad Faith on the Part of the Party Seeking To Call the Witness

Defendant’s counsel represented that she did not know about the existence of Dr. Delfín and Dr. Thomas prior to the date of Dr. Rotenberg’s deposition on August 19, 2008. Rather than simply proceed ahead with Dr. Rotenberg’s deposition, defense counsel immediately notified plaintiffs’ attorney about Dr. Rotenberg’s consultation with Dr. Delfín and Dr. Thomas. Defense counsel explained in her brief: “[Dr. Rotenberg’s deposition] was ultimately canceled because defense counsel thought it would be fair to give plaintiffs’ attorney the reports before the videotape deposition to avoid any surprise.” (Defendant’s brief at p. 1.) We accept defendant’s attorney at her word. Therefore, we are unwilling to ascribe any bad faith to either defense counsel or her client.

(2) Ability of Party To Discover Witnesses Earlier

Without question, defense counsel could have learned about Dr. Delfín and Dr. Thomas had Dr. Rotenberg called or written defense counsel prior to his testimony. However, we are well aware of the realities that accompany depositions of doctors. Routinely, medical witnesses will set aside a finite amount of time for a medical deposition. If an attorney is lucky, the doctor she or he seeks to call will offer 15 minutes of time prior to the deposition for preparation. It is almost unheard of for a doctor to agree to meet with an attorney for preparation days or weeks prior to the deposition. Given this reality of the medical-legal relationship, we are not surprised that defense counsel only learned about Dr. Delfín and Dr. Thomas when she met with Dr. Rotenberg on the day of his deposition. We will not weigh this factor in favor of evidence preclusion.

(3) Validity of the Excuse Offered

Defense counsel’s only excuse for failing to more promptly notify plaintiffs is that she did not know about the existence of Dr. Delfín and Dr. Thomas. For reasons we have articulated above, we accept this excuse and will not weigh this factor in favor of evidence exclusion.

(4) Willfulness of a Party s Failure To Comply With a Court Order

When defendant’s attorney was made aware of the reports of Dr. Delfín and Dr. Thomas, she was faced with a choice. She could have proceeded with the deposition and carefully crafted questions to draw out Dr. Rotenberg’s opinion without overtly disclosing his reliance upon Dr. Delfín and Dr. Thomas. Her second choice was to notify plaintiffs’ attorney, knowing that an objection would probably ensue. Defendant’s attorney chose the latter method. We believe that defense counsel’s choice was in accordance with the Rules of Professional Conduct and displayed the sort of professional collegiality that we would like to see all lawyers employ. We certainly will not chastise defense counsel for the manner in which she proceeded after learning what her expert had done.

(5) Intent to Mislead or Confuse the Adversary

See comments articulated in preceding paragraph. We will not weigh this factor in favor of evidence preclusion.

(6) The Importance of the Proffered Testimony

In this case, plaintiff Melanie Gettler seeks damages based upon “neurological injuries”, “post-traumatic stress disorder”, “depression”, “anxiety”, “psychological injuries and sequalea”, “emotional injuries and sequalea” and “aggravation of pre-existing emotional and psychological conditions” (¶11 of complaint.) Dr. Rotenberg is the primary defense witness with respect to the neurological, psychological and emotional condition of Melanie Gettler. As such, we view Dr. Rotenberg as a critical defense witness. Precluding or limiting Dr. Rotenberg’s testimony would have a profound impact on defendant’s ability to defend this litigation. Therefore, we weigh this factor against evidence preclusion.

(7)Prejudice and the Ability To Cure It

In terms of the ultimate trial of this case, we perceive no undue prejudice that would flow to plaintiffs by permitting everyone to take a step back in order to properly analyze all aspects of Dr. Rotenberg’s current proffered testimony. If it has not already been accomplished, all documentation and reports generated by Dr. Delfín and Dr. Thomas should be turned over to plaintiffs. Plaintiffs will then have the opportunity to digest that infonnation and conduct inquiry with respect thereto. If necessary, we would permit plaintiffs to hire another expert to rebut what Dr. Delfín and Dr. Thomas say. After all of the above is accomplished, Dr. Rotenberg can be deposed once more and plaintiffs’ counsel will be prepared to fully cross-examine Dr. Rotenberg on all aspects of his opinion.

As we perceive it, the primary prejudice to plaintiffs involves cost and delay. We can and will craft remedies that fall short of the drastic remedy of evidence preclusion. We will not weigh this factor in favor of evidence preclusion.

(8) The Extent To Which Waiver of the Rule Would Disrupt Trial of the Case

The net effect of this situation will be to delay trial. Without question, this will be an inconvenience to both plaintiffs and to the court. However, we recognize that a trial is largely a quest for the truth. That quest should not be jeopardized based upon minimal inconvenience. By the order we will enter today, trial will be postponed and people will be inconvenienced. However, the greater purpose of facilitating a fair and full trial inquiry will be preserved.

III. CONCLUSION

Based upon the above, we will deny plaintiffs’ request to preclude and/or limit Dr. Rotenberg’s testimony. However, under the authority granted in Pa.R.C.P. 4003.5 and given the events as described to us, we will enter an order to appropriately respond to what has occurred. That order will include the following:

(1) Trial will be continued. We will grant either party leave to list this matter for trial no earlier than March of 2009.

(2) We will reopen discovery on a limited basis. We will direct that defendant provide to plaintiffs all information in her possession regarding Dr. Rotenberg, Dr. Delfín, and Dr. Thomas. Thereafter, we will afford plaintiffs with the following opportunities:

(a) We will afford plaintiffs with the opportunity to depose Dr. Delfín and Dr. Thomas. All compensation of Dr. Delfín and Dr. Thomas, and all expenses pertaining to said depositions will be paid by defendant.

(b) We will afford plaintiffs with the opportunity to procure an expert witness to respond to Dr. Rotenberg, Dr. Delfín and/or Dr. Thomas. Plaintiffs will be required to provide defendant with any reports relative to any newly hired experts no later than January 15, 2009.

(3) We will require that defendant reimburse plaintiffs’ counsel for out-of-pocket expenses pertaining to the aborted deposition of Dr. Rotenberg. A bill of out-of-pocket expenses incurred by plaintiffs’ counsel is to be submitted to defendant’s counsel for payment within 30 days. This invoice shall not include attorney’s fees.

ORDER

And now, September 29,2008, after review of the file and after consideration of the briefs submitted by the parties, the order of this court is as follows:

(1) Plaintiffs’ motion to preclude or limit testimony of Dr. Larry Rotenberg is denied.

(2) Trial in this matter shall be continued. Either party is at liberty to list this matter for trial no earlier than March of 2009.

(3) Discovery is reopened on a limited basis. Defendant is directed to provide plaintiffs all information in her possession regarding Dr. Rotenberg, Dr. Delfín and Dr. Thomas. Thereafter, plaintiffs shall be afforded with the following opportunities:

(a) The opportunity to depose Dr. Delfín and Dr. Thomas. All compensation of Dr. Delfín and Dr. Thomas, and all expenses pertaining to said depositions will be paid by defendant.

(b) The opportunity to procure an expert witness to respond to Dr. Rotenberg, Dr. Delfín and/or Dr. Thomas. Plaintiffs shall be required to provide defendant with any reports relative to any newly hired experts no later than January 15, 2009.

(4) Defendant shall reimburse plaintiffs’ counsel for out-of-pocket expenses pertaining to the aborted deposition of Dr. Rotenberg. A bill of out-of-pocket expenses incurred by plaintiffs’ counsel shall be submitted to defendant’s counsel for payment within 30 days. Said invoice shall not include attorney’s fees.

      . This agreement was confirmed in writing by a letter mailed by plaintiffs’ attorney dated June 25, 2008.


author: FINLEY, J.,

text:
    Commonwealth v. Eiseman

      Maureen A. Flannery, for Commonwealth.

      Richard R. Fink, for defendant.
    October 31, 2008
   FINLEY, J.,

FINDINGS OF FACT

(1) On January 7,2008, defendant, Gregory Eiseman, pled guilty to one count of indecent assault person less than 16 years of age and one count of involuntary deviate sexual assault person less than 16 years of age.

(2) The crime occurred on June 21,2007 at defendant’s residence after he and victim had gone together to see a movie.

(3) At the time of the assault, the victim was 15 years of age and the defendant 21.

(4) Sentencing was deferred upon the Commonwealth petitioning to have defendant classified as a sexually violent predator (SVP) by the Sexual Offenders Assessment Board (SOAB).

(5) On March 17, 2008, Mr. Dean Dickson M.S., of the SOAB completed an assessment of defendant following a review of defendant’s records, court documents, police reports, school records and psychological/psychiatric reports.

(6) Mr. Dickson diagnosed defendant with antisocial personality disorder (APD) and also determined that defendant met the criteria for classification as a sexually violent predator. N.T. 9/17/08, pp. 14-15.

(7) On September 15, 2008, an SVP classification hearing was held during which Mr. Dickson testified on behalf of the Commonwealth as to his diagnosis that defendant suffers from APD and further opined that this personality disorder predisposed defendant to the commission of sexual crimes.

(8) Mr. Dickson analyzed defendant under the factors set forth in 42 Pa.C.S. §9795.4 of the Sexual Offenders Registration Act in reaching his conclusion and found particularly significant the age of the victim (15) and the fact that they had met online.

(9) After reviewing all the factors required under section 9795.4, including defendant’s prior criminal history, Mr. Dickson concluded that defendant met the criteria for classification as a sexually violent predator.

(10) Defendant presented two witnesses, Eric Weinstein Psy.D., an expert in the diagnosis and treatment of mental diseases, and Frank M. Dattilio Ph.D., ABPP, an expert in the assessment and treatment of adult sexual offenders, both of whom had personally evaluated defendant.

(11) Dr. Weinstein, in October 2007 began meeting with defendant and after reviewing various records, interviewing defendant’s family and weekly sessions with defendant, diagnosed defendant with pervasive developmental disorder not otherwise specified (PDD-NOS) and bipolar disorder not otherwise specified.

(12) Dr. Weinstein found symptoms of PDD-NOS in defendant’s cognitive limitations such as difficulty understanding abstract concepts and remembering information, and executive limitations such as an inability to plan, organize and execute goals. N.T. 9/17/08, pp. 96-100; exhibit D-l.

(13) Dr. Weinstein also found defendant lacked a strong understanding of the rules of social interaction and exhibited social anxiety, slow assimilation in social situations, and skill deficits in verbal and nonverbal communication, all characteristics supporting a PDD-NOS diagnosis. N.T. 9/17/08, pp. 96-100; exhibit D-1.

(14) Dr. Weinstein testified that defendant has an adequate understanding of the offense and has changed certain behaviors to reduce the possibility of reoffense, including not using a computer.

(15) Further, and of critical importance, Dr. Weinstein concluded defendant’s diagnoses do not correlate with the possibility of reoffense as PDD-NOS and bipolar disorder do not increase the likelihood of recidivism. N.T. 9/17/08, pp. 102-103.

(16) Dr. Frank M. Dattilio was also presented by the defense as an expert in the assessment and treatment of adult sexual offenders.

(17) Dr. Dattilio evaluated defendant on two separate occasions, May 27 and June 16, 2008, administering a battery of psychological tests.

(18) After reviewing the test results together with his review of defendant’s records, history and his own interviews, Dr. Dattilio concluded that defendant suffers from PDD-NOS and bipolar as had previously been diagnosed by defendant’s treating doctors including Dr. Weinstein. N.T. 9/17/08, p. 152.

(19) Dr. Dattilio testified that defendant exhibited delays in developmental milestones, qualitative impairment in social interactions and interpersonal skills because of his impediments, lack of solid peer relationships appropriate to a developmental level, poor social and emotional reciprocity, poor communication skills, and low self-esteem/self-worth, all characteristics supporting PDD-NOS. N.T. 9/17/08, pp. 142-46; exhibit D-4.

(20) The psychological tests performed by Dr. Dattilio showed defendant has a permanent and pervasive disorder that falls within the autism spectrum and as a result, defendant functions at the level of an adolescent and tends to be primitive in his thinking. N.T. 9/17/08, p. 162; exhibit D-4.

(21)Defendant had never been diagnosed with, or treated for, a conduct disorder prior to Mr. Dickson’s finding.

(22) Dr. Dattilio found Mr. Dickson’s APD diagnosis to be incorrect because defendant did not have a conduct disorder by age 15 as required for a diagnosis. N.T. 9/17/08, pp. 161, 166-67.

(23) Dr. Dattilio also testified as to defendant’s likelihood of engaging in predatory behavior, opining that defendant did not display the element of specific intent to engage in predatory behavior or act with the specific intent of initiating a relationship with the victim for the purpose of victimization. N.T. 9/17/08, p. 171.

(24)Dr. Dattilio analyzed defendant’s conduct under the statutory factors, finding defendant’s behavior to be the result of the PDD-NOS and concluded within a reasonable degree of medical certainty defendant did not meet the criteria for S VP classification. N.T. 9/17/08, pp. 170-74.

CONCLUSIONS OF LAW

(1) The defendant pled guilty to one count of indecent assault and one count of involuntary deviate sexual intercourse, both counts involving a victim less than 16 years of age and are crimes enumerated under 42 Pa.C.S. §9795.1.

(2) The Commonwealth bears the burden of establishing the defendant suffers from a mental abnormality that makes the defendant likely to engage in predatory sexually violent offenses.

(3) This court finds that the Commonwealth has failed to establish by clear and convincing evidence that defendant suffers from a mental abnormality that makes him likely to reoffend in an offense of this nature.

(4) Defendant shall not be classified as a sexually violent predator.

DISCUSSION

Under Megan’s Law II, when a defendant is convicted of one of the offenses enumerated in the statute, a trial court must defer sentencing and order the Sexual Offenders Assessment Board (SOAB) to assess whether the individual should be classified as a sexually violent predator for sentencing purposes.

SVP classification carries with it serious, lifelong repercussions with the potential to place an individual’s relationships, liberty and life in jeopardy, and thus, classification requires the court’s subjective assessment of an offender’s potential future dangerousness. See Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999); see also, Commonwealth v. Bey, 841 A.2d 562, 567 (Pa. Super. 2004).

The Commonwealth bears the burden to establish by clear and convincing evidence that the individual is a sexually violent predator. Commonwealth v. Dengler, 843 A.2d 1241, 1246 (Pa. Super. 2004). Pursuant to the statute, a sexually violent predator is defined as a person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. 42 Pa.C.S. §9792.

The assessment shall include, but not be limited to, an examination of: (1) facts of the current offense; (2) prior offense history; (3) characteristics of the individual; and (4) factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense. 42 Pa.C.S. §9795.4(b).

The first prong the Commonwealth must establish is that a mental abnormality or personality disorder exists that makes it likely the individual would engage in the types of offenses set forth in the statute. Mental abnormality is defined as a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. 42 Pa.C.S. §9792.

In evaluating the evidence presented during the hearing, we find the Commonwealth did not establish by clear and convincing evidence that defendant suffers from a mental abnormality or personality disorder that would make him likely to engage in subsequent offenses. This finding is based upon the Commonwealth’s failure to sufficiently show that defendant suffers from APD and not PDD-NOS. We find this detennination to be supported by the following:

(1) Dr. Weinstein’s conclusion that defendant suffers from PDD-NOS and bipolar disorder based upon his review of various documents, records, and his direct contact with defendant during treatment sessions.

(2) Dr. Dattilio’s conclusion that defendant suffers from PDD-NOS and bipolar disorder based upon his review of the records, documents, the results of the battery of performance and diagnostic tests administered to defendant and his direct contact with defendant.

(3) Expert testimony that individuals suffering from PDD-NOS exhibit many of the same behaviors as those suffering from APD, with the exception of a conduct disorder manifesting by age 15.

(4) Defendant was never in treatment for, or diagnosed with, a conduct disorder by any doctor, prior to his assessment by Mr. Dickson.

(5) In addition, we find that two incidents prior to age 15 do not support a conclusion that a pervasive pattern exists, such to establish that defendant exhibited a conduct disorder.

The Commonwealth’s contentions regarding defendant’s mental abnormality and potential to reoffend are substantially contradicted by defendant’s evidence and thus, the Commonwealth has failed to meet its burden of proving that defendant is a sexually violent predator under the statute.

Mr. Dickson also assessed defendant using the factors under section 9795.4(b), noting the following: how the relationship was established with the victim, prior juvenile and criminal record, defendant suffered from APD, his single marital status, his prior sex offense, and his juvenile delinquency and criminal versatility. We note that there is no scientific assignment of weight values to these factors and no factor is more important or significant than another.

This court finds credible the testimony that defendant’s conduct is the product of his PDD-NOS as diagnosed by several treating doctors and his documented developmental delays and not the product of a predisposition to the commission of criminal sexual acts such that defendant is a present or future danger to society.

The second prong the Commonwealth must establish is that the individual displays predatory behavior which is defined as “[a]n act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” 42 Pa.C.S. §9792.

The salient inquiry that must be made by the trial court is the identification of the impetus behind the commission of the crime and the extent to which the offender is likely to reoffend. Commonwealth v. Geiter, 929 A.2d 648, 651 (Pa. Super. 2007). Aside from Mr. Dickson’s opinion that defendant’s initiation of the relationship was predatory, the Commonwealth did not provide any evidence to suggest that defendant established the relationship with the specific intent to victimize. The facts of the case indicate that defendant initiated the relationship with the victim in order to go on a date to the movies and thus, we find that defendant did not engage in predatory behavior as defined by the statute.

Upon consideration of the facts of the offense, all assessment factors, and the expert opinions of whether defendant suffers from APD as diagnosed by Mr. Dickson, we find that the Commonwealth did not meet its burden to establish by clear and convincing evidence that defendant suffers from a mental abnormality or personality disorder, such that defendant is likely to engage in predatory sexually violent offenses and thus, defendant does not meet the criteria for classification as a sexually violent predator.

ORDER

And now, October 31,2008, after a hearing to determine if defendant is to be classified as a sexually violent predator, and upon a finding by this court that the Commonwealth has not proven by clear and convincing evidence that defendant meets the criteria to be so classified, it is hereby ordered that defendant shall not be classified as a sexually violent predator pursuant to 42 Pa.C.S. §9795.4.

      . Dr. Dattilio testified that defendant’s behavior did not rise to the level where it met the diagnostic criteria for a conduct disorder. N.T. 9/17/08, pp. 160-61.


author: RUFE, J.,

text:
    Commonwealth v. Long

      Laura Siegle, for Commonwealth.

      Kenneth B. Hone, for defendant.
    September 12, 2008
   RUFE, J.,

Defendant, John Long, has filed an appeal in this matter. The four matters raised on appeal pertain to issues addressed before this court during a suppression hearing conducted on January 30-31, 2008. A waiver trial was heard by this court on March 11,2008, and defendant was found guilty of possession with intent to deliver cocaine and Xanax. Sentencing occurred on May 5, 2008, at which time defendant received the mandatory minimum sentence of three to six years at a state correctional facility. The instant appeal followed.

Pursuant to Pa.R.A.P. 1925(b) appellant filed a concise statement of matters complained of on appeal. The matters raised are as follows:

(1) The lower court erred in failing to suppress the physical evidence, as law enforcement violated the plain touch doctrine.

(2) There was no probable cause to justify the arrest of appellant and to validate the search of his person.

(3) The lower court erred in finding that appellant’s statement at the police station was not the direct product of the illegal arrest and/or Terry stop. As such, the statement was tainted by the illegal police conduct. There was no independent basis to justify the admission of the statement.

(4) Appellant believes that the lower court suppressed the statements taken at the time of the vehicle stop; however, if that was not the case, the lower court erred, as the statements were given as a result of police questioning.

FACTUAL BACKGROUND

The factual history is largely taken from the testimony of Officer Stephen Sanocki who was on patrol in a marked car, in the area of Route 413 in Bristol Township, during the evening of this incident. On July 25, 2007, a 911 call was placed from the Eckerd drugstore, at the Commerce Center, at Routes 13 and 413, in Bristol Township, Bucks County, Pennsylvania. It was reported that three cartons of cigarettes were stolen. Information provided by the victims advised the individual involved was a white male, estimated to be in his twenties, who fled in a car identified as a red Neon. It was reported that a driver was waiting in the car to flee. (N.T. 1/31/08, pp. 52-53.)

The Bristol Township and Bristol Borough police departments were alerted to the call. Officer Sanocki testified that the first 911 call he responded to was an abandoned call. He then continued back onto Route 413 when the second 911 call came in from an Eckerd employee stating they had spotted a red Neon, believed to be involved in this retail theft, behind Dunlops Bar. (N.T. 1/30/08, p. 9.)

Officer Sanocki testified he was patrolling in that area and heard the radio transmissions. When the vehicle was not found by a Bristol Borough officer who had reported to that location, Officer Sanocki intended to check Just Sports Bar, across the street from Dunlops Bar. En route, Officer Sanocki witnessed a red Neon, driven by a white male, alone in the vehicle. The vehicle made a U-tum on Route 413, going from southbound to northbound, which could have given the vehicle access to the 1-95 interstate highway. (N.T. 1/30/08, pp. 7, 9, 11.) “The police, the officers that were down at the sports bar, said there were no vehicles there. So I’m thinking this could be our vehicle.” (N.T. 1/30/08, p. 11.) Officer Sanocki turned on his lights and attempted to make a U-tum to check on the Neon.

Officer Sanocki testified when he initiated the stop that the driver seemed nervous and did not have a driver’s license. Officer Sanocki observed baby formula, a carton of Newport cigarettes and various colored T-shirts on the floor of the back seat. Officer Sanocki immediately radioed to confirm the type of cigarettes stolen from Eckerd and was informed they were Newport cigarettes. (N.T. 1/30/08, pp. 12-14.)

The officer testified and the court takes judicial notice that baby formula and cigarettes are commonly theft items from commercial establishments because they are readily convertible into cash and the cash then used for the sustenance of drug habits for various drug-addicted persons. The existence of those items in the red vehicle, and the operation by the white male identified as the defendant generated a reasonable suspicion on the part of the officer that criminal activity was afoot and that the defendant was the perpetrator of the theft. (N.T. 1/31/08, p. 56.)

Defendant responded to the officer that he was not in possession of anything illegal and did not have any contraband. He permitted the officer to search the vehicle. Because defendant was out of the vehicle, Officer Sanocki patted him down. (N.T. 1/30/08, p. 15.) By this time there were three additional officers from the Bristol Township Police Department at the scene. (N.T. 1/31/08, p. 14.) A pat-down search of defendant’s clothes revealed a bulge which the officer perceived to be a film container. Upon feeling the container pursuant to a Terry-type search, becoming suspicious that it might contain contraband, Officer Sanocki asked defendant if he owned a 35mm camera, to which defendant responded he did not. (N.T. 1/31/08, pp. 15-16.) The officer testified, “in my experience I know that 35-millimeter film canisters are quite often used to carry marihuana in. And so I had suspicion that he was holding some marijuana. And then as I reached into his pocket to pull out this canister, Mr. Long blurted out a statement and said that he was going to jail for a long time. And then what I pulled out of his pocket was actually a pill bottle the name on it was not John Long; it was the name of Joseph Marcino they were actually two types of pills in that canister I also felt in his pocket a cellophane wrapper with a chucky substance inside it. And when I pulled that out is when I saw the chunky white substance.” (N.T. 1/30/08, p. 16.)

Employees from Eckerd arrived at the scene and advised that defendant was not the perpetrator from the theft at that store. As the employees of the drugstore did not identify defendant as the perpetrator from that store, Officer Sanocki no longer had a reasonable suspicion that defendant had committed that theft. However, the officer had probable cause to arrest defendant on the basis of possession of the controlled substance.

Defendant was taken to the station, Mirandized, and agreed to speak to the police without an attorney.

The container with two types of pills and the cellophane package of a chunky white substance were placed in front of defendant and he was interrogated and acknowledged that he was in possession of cocaine, that he was not a user, and that he sold illegal substances in Philadelphia, not Bucks County. (N.T. 1/30/08, pp. 17-20.)

The matters raised on appeal are all related to the suppression hearing conducted on January 30 and 31,2008. It is exclusively the province of the suppression court to determine the credibility of the witnesses and weight to be accorded to their testimony. Commonwealth v. Dorsey, 439 Pa. Super. 494, 654 A.2d 1086 (1995).

Addressing the matter complained of, that the plain touch doctrine was violated, the Pennsylvania Superior Court has held that when a police officer is confronted with someone whom he reasonably believes is involved in narcotics traffic, a Terry pat-down frisk for protection of the officer is proper. Commonwealth v. Patterson, 405 Pa. Super. 17, 591 A.2d 1075 (1991). For the plain touch doctrine to apply, an individual must already be lawfully stopped and subject to a lawful Terry frisk by the police officer. Plain touch merely permits the officer to invoke probable cause to search during this frisk, as the result of his sense of touch, coupled with the surrounding circumstances and his personal knowledge, experience and common sense. Dorsey, supra. We found Officer Sanocki’s actions justified under the plain touch doctrine and therefore did not suppress the physical evidence. We found, from the facts recited, as follows:

“That Officer Sanocki had a reasonable suspicion and probable cause—had a reasonable suspicion to stop the vehicle based upon the reports of theft of cigarettes and had a reasonable suspicion to ask the defendant out of the vehicle to make a Terry search for his safety. That at the time of the Terry search, the defendant was sufficiently restricted from leaving the scene, that he was effectively under arrest
“We conclude further that the officer had probable cause to make an arrest and to conduct a pat-down search, and that items seized as a result of the pat-down search or the search of the vehicle were validly obtained and are not to be suppressed at trial...
“We find that the officer had a reasonable suspicion upon feeling what he thought to be a film canister, that the film canister contained contraband substance, and that the arrest as a result of feeling the contraband substance was a valid arrest and lawful arrest.” (N.T. 1/31/08, pp. 60-63.)

Furthermore, and in response to the second matter complained of on appeal, this court found there was probable cause to justify the arrest of appellant and to validate the search of his person. Pennsylvania has adopted the totality of the circumstances analysis to determine whether probable cause for an arrest exists. Commonwealth v. Clark, 558 Pa. 157, 735 A.2d 1248 (1999). Probable cause must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest, guided by his or her experience and training. In re R.P., 918 A.2d 115 (Pa. Super. 2007), citing Clark, supra. On the record we stated:

“We have taken into consideration the various factors that the court must take into consideration in a determination whether the nature of the confrontation by the police with the defendant were at the level of a mere encounter, were an investigative detention, or were as a result of the arrest
“We take into consideration the defendant’s apparent nervousness, the fact that he and the vehicle fit the description that were described to the police by police radio. We take into consideration the fact that the source of the complaint was identified. We take into consideration the need for the officer’s protection in conducting a Terry search as a result of the probable cause that he had to make the arrest for the theft.
“We find that the officer had a reasonable suspicion upon feeling what he thought to be a film canister, that the film canister contained contraband substance, and that the arrest as a result of feeling the contraband substance was a valid arrest and lawful arrest.
“Although the defendant as the driver of the vehicle could not be connected to the theft, and although the pill bottle was misidentified by the officer as a film canister, nevertheless, his suspicions were reasonable and his probable cause to make the arrest based upon the information available to him was valid.” (N.T. 1/31/08, pp. 62-63.)

The court found that the fact that there was only one person in the vehicle and that only one carton of cigarettes was located in the vehicle did not minimize the level of suspicion which Officer Sanocki had or should have had or could have had as a result of undertaking the stop of the red Neon, and that the absence of a second person is not necessarily inconsistent with the suspicion that Officer Sanocki had that the vehicle was involved in the theft. (N.T. 1/31/08, p. 59.)

With regard to the third and fourth matters complained of on appeal, we refer to this court’s order of February 27, 2008, attached as exhibit A hereto. In that order, upon reconsideration, we found the statement made by defendant during the motor vehicle stop was not entitled to protection, since Officer Sanocki had asked no question designed to cause defendant to make a statement that was either incriminatory or exculpatory. The Pennsylvania Supreme Court has repeatedly held that statements by defendants which are not in response to any questioning or action by the officer are admissible without Miranda warnings. Commonwealth v. Baez, 554 Pa. 66, 85, 720 A.2d 711, 720 (1998). Furthermore, because that statement was found admissible we held there was no applicability of doctrine of the fruit of the poisonous tree, and ordered that the statement taken from defendant at the police station after he was Mirandized was admissible as well. We stated additionally, that even if the statement at the scene were inadmissible, no fruit of the poisonous tree doctrine would apply, and the failure to warn defendant at the scene would not vitiate the statement given at the police station after Miranda warnings were given. See Commonwealth v. Hess, 446 Pa. Super. 222, 666 A.2d 705 (1995).

Based on our findings, the plain touch doctrine was not violated and there existed ample probable cause for defendant’s arrest. Furthermore, those findings as well as our subsequent order of February 27, 2008, render the third and fourth matters complained of on appeal moot.

EXHIBIT A

ORDER

And now, February 27,2007, [sic] upon reconsideration of our order of January 21,2008, [sic] in which we suppressed the statement of defendant at the scene of the traffic stop on the basis that the police officer should have warned defendant of his Miranda rights, and that failure to do so justified the suppression of the volunteered statement, we believe the statement by the defendant was not entitled to protection, since the officer asked defendant no questions designed to cause defendant to make a statement either incriminatory or exculpatory. We therefore sustain the motion for reconsideration and hereby order that the statement of defendant at the scene of the arrest be admissible at trial.

Because we find the statement of the defendant to be admissible, we further find that no doctrine of the fruit of the poisonous tree is applicable, and we order that the statement taken from defendant at the police station after he was Mirandized be admissible as well.

Finally, we will state that even if the statement at the scene was inadmissible, no fruit of the poisonous tree doctrine would apply, and that the failure to warn the defendant at the scene would not vitiate the statement given at the police station after Miranda warnings were given. See Commonwealth v. Hess, 446 Pa. Super. 222, 666 A.2d 705 (1995).

      .35P.S. §780-113(a)30.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Two 911 tapes were played for the court. The authenticity and admissibility of the tapes were stipulated to before the court. The first tape is a recording from the Bucks County Radio Room and reflected a call made between 6:16 and 6:18 in the evening on July 25, 2007. The second recording reflects a call made between 6:38 p.m. and 6:43 p.m. on July 25, 2007 of the radio transmission as recorded by the Bucks County Radio Room, Department of Emergency Communications. (N.T. 1/30/2008, pp. 4-5.)

      . This order should read February 27,2008, (not 2007) as it pertains to a motion re reconsideration following our January 31, 2008 (not January 21, 2008) ruling.


author: FRIEDMAN, J,

text:
    Foulks v. University of Pittsburgh

      Walter Bleil and John Murtagh, for plaintiff.

      Alan Garfinkel and Adam Hobaugh, for defendant.
    November 10, 2008
   FRIEDMAN, J,

The plaintiff has appealed from this court’s order dated June 9, 2008 in which we granted the defendant’s motion for summary judgment and dismissed the plaintiff’s complaint with prejudice. At issue in this case is the application of the statute of limitations. The plaintiff and defendant disagree as to when the statute of limitations should begin to run.

The facts of the case are as follows: In the spring of 1996, the plaintiff negotiated with the defendant university to become the chairman of the university’s Ophthalmology Department. During the negotiations, plaintiff proposed that an endowed chair be established for him. The plaintiff alleges in his complaint, at 1J8, that a letter he sent to the defendant on April 26, 1996 contains the terms and conditions of his employment. The letter states, inter alia:

“An endowed chair will be established for me at the University of Pittsburgh in the amount of $1.5 million to be completed by the fifth year. It is understood that the Eye and Ear Foundation will immediately begin fundraising for the endowed chair with the initial contribution of $750,000.
“The endowed chair will be completely funded to the amount of $1.5 million within five years through the continued assistance of UPMC. In the event that the fundraising at the end of five years is incomplete, the balance of the endowment will be contributed by UPMC ....” (Exhibit “B” to complaint.)

The plaintiff began his employment with defendant around August 1996. Plaintiff alleges that by August of 2001, defendant had failed to establish a chair for him and had taken no steps to fund it. Plaintiff left defendant’s employ in October 2003, and filed his complaint in breach of contract on October 20, 2004.

The two key issues raised by the letter of April 26,1996 are, first, whether the chair was to be established for plaintiff personally, or for the chairperson of the Department of Ophthalmology, whoever that might happen to be, and second, at what point the fundraising had to be completed. In its motion for summary judgment, the defendant alleges that plaintiff’s familiarity with the Eye and Ear Foundation (EEF) allowed the plaintiff to know, no later than September 1997, that the EEF was not going to endow a chair for plaintiff personally, but rather for the chairperson of the Department of Ophthalmology, whoever that might happen to be. Because of plaintiff’s position as the chairman of the Department of Ophthalmology, he automatically became a member of the EEF board of directors upon his arrival in Pittsburgh in August 1996. (Deposition of Gary N. Foulks M.D., pp. 50 and 94, in defendant’s appendix to motion for summary judgment.) Plaintiff testified in his deposition that he was on notice of debates at the EEF regarding the chair. He did not participate in the decision on it because of his conflict of interest, but he had notice. He was aware that the EEF debated whether the chair would be for him personally or for the department chairperson in general. (Foulks deposition, pp. 55-57.) The EEF adopted a strategic plan in October 1996, with plaintiff at the meeting. It then approved an agreement with the defendant and UPMC in April 1997. The gist of these included funding for a general chair for the department head. The plaintiff voted to approve this. Therefore, argues the defendant, plaintiff knew about the “breach of contract” that he complains of in 1997, and the statute of limitations should begin to run then. (The defendant disputes that plaintiff’s original employment contract required a chair specifically for him, but argues that that issue is irrelevant to the motion for summary judgment.)

In his reply to the motion for summary judgment, plaintiff argues that the contract was not yet breached when the EEF refused to provide the proper funding for the chair. Rather, contends the plaintiff, the breach occurred when the defendant university failed to complete the funding by the fifth year (2001).

Plaintiff alleges that the endowed chair was to be established for him personally, while the defendant alleges that it was to be for the chairperson of the Department of Ophthalmology, whoever that might be.

Plaintiff argues that the original letter from plaintiff to defendant regarding the terms of his employment is a contract to which plaintiff and defendant, but not the EEF, are parties. The letter says that the EEF will begin the fundraising, but it also says that the chair will be completely funded within five years, and that if the fund-raising is not complete by that time, the balance of the endowment will be contributed by UPMC.

Plaintiff further argues that in 1997, after the EEF decided not to fund a chair for plaintiff, the defendant never informed plaintiff that it did not intend to fulfill its obligations under the agreement. EEF’s decision not to participate in the fundraising for the chair did not relieve the defendant of its obligations to fund the chair at the end of the five years. Therefore, contends plaintiff, the statute of limitations should begin to run at the end of the fifth year—2001.

We granted defendant’s motion for summary judgment based on the issue of statute of limitations. There were two material terms of plaintiff’s contract with defendant—that the chair be established for him personally, and that the funding be completed within five years. The plaintiff knew in 1997 that the first term was not going to be complied with, when EEF, of which plaintiff was a member, voted on the funding. Plaintiff was therefore on notice in 1997 that the contract was being breached, and his time to sue began to run. Even though the defendant had five years to complete the fundraising for the chair, that is not the “trigger” that sets the statute of limitations in motion. The term of the contract allegedly requiring a personal chair for plaintiff undisputedly had already been breached.

We properly granted summary judgment in favor of the defendant.


author: HERMAN, J,

text:
    Verdier v. Matson

      Jason Inler, for plaintiffs.

      Kevin Gillespie, for defendant.
    October 6, 2008
   HERMAN, J,

INTRODUCTION

Before the court are the defendant’s motion to mold and reduce the verdict and the plaintiffs’ motion for delay damages. The motions arise from a jury verdict entered on May 22, 2008 in favor of the plaintiff Ena S. Verdier in connection with damages she sustained when her car collided with the defendant’s car on June 29, 2001. The court has considered the written and oral arguments of counsel, as well as the record and the available law. The motions are ready for decision.

BACKGROUND

The plaintiffs alleged that the defendant’s negligent driving caused the automobile accident. Mrs. Verdier sought compensation for pain and suffering and lost wages arising from her employment as an elementary school physical education teacher. Mr. Verdier made a claim for loss of consortium. The court ordered the trial to be bifurcated into separate liability and damages phases.

The jury heard evidence about Mrs. Verdier’s salary with the Greencastle-Antrim School District for the 2002-2003 school year. Counsel stipulated that Mrs. Verdier was granted sabbatical leave by her employer for that school year and received pay in the amount of $25,867.01 which represented one-half of her annual pay. Counsel indicated to the court there was a dispute about whether the court should reduce any wage loss amount awarded by the jury to Mrs. Verdier to reflect that she already received one-half of her 2002-2003 school year pay during her sabbatical. In addition, counsel agreed the court would reduce the verdict to reflect Mrs. Verdier’s previous receipt from her insurance carrier of $25,000 in first-party wage loss benefits.

The jury found the defendant 58 percent liable and Mrs. Verdier 42 percent liable for the accident. After hearing evidence on damages, the jury awarded Mrs. Verdier $65,000 in lost wages and $20,000 for pain and suffering for atotal damages award of $85,000. The jury did not award Mr. Verdier any damages for loss of consortium. Counsel then filed and argued the instant motions.

Initially, we subtract from the verdict the $25,000 in first-party wage loss benefits. This reduction is necessary pursuant to the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1719 and §1722, (MVFRL) which precludes double recovery of wage losses. This reduces the verdict to $60,000. We next reduce that figure by 42 percent which is Mrs. Verdier’s proportionate share of responsibility for the accident. The resulting figure is $34,800. So far, the parties are in agreement as to the verdict molding process. The issue now before the court is whether sections 1719 and 1722 require the award to be further reduced by $25,867.01 which is the one-half salary Mrs. Verdier received during the 2002-2003 school year when she was absent from work on sabbatical. If the court agrees with the defendant that this further reduction is necessary in order to avoid the plaintiff receiving a duplication of benefits, the verdict would be lowered to $19,797.14.

DISCUSSION

Defendant’s Motion To Mold/Reduce the Verdict

Section 1722 of the MVFRL provides:

“In any action for damages against a tort-feasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under any program, group contract or other arrangement for payment of benefits as defined in section 1719.”

The term program, group contract or other arrangement includes but is not limited to benefits payable by a hospital plan corporation or a professional health service corporation. Section 1719(b). The purpose of these provisions is to ensure that a person does not collect duplicate benefits for a single economic loss. Section 1719(a).

In response to the defendant’s motion, the plaintiff cites cases which address these provisions in connection with various benefit types such as sick pay, social security disability payments and funds received under a self-paid disability insurance policy. The key factor in those cases was that the claimants, by being subject to lower wages through payroll deductions for sick pay and social security benefits or through the voluntary payment of insurance premiums, had already earned or paid for the monetary benefits they received out of their own pockets and therefore their awards did not need to be further reduced in order to prevent them from receiving a double recovery. Indeed, section 1722 and the term double recovery do not even apply to such benefits. Panichelli v. Liberty Mutual Insurance Group, 543 Pa. 114, 669 A.2d 930 (1996); Browne v. Nationwide Mutual Insurance Co., 449 Pa. Super. 661, 674 A.2d 1127 (1996); Carroll v. Kephart, 717 A.2d 554 (Pa. Super. 1998); Tannenbaum v. Nationwide Insurance Co., 919 A.2d 267 (Pa. Super. 2007), appeal granted, 594 Pa. 4, 934 A.2d 687 (2007). According to Mrs. Verdier, there is no difference between the types of benefits at issue in those cases, especially sick pay, and the wages she received during her sabbatical. It is her position that she had already earned or paid for those wages through her employment and therefore they do not fall within the purview of section 1722.

By contrast, the defendant contends that the sabbatical wages which Mrs. Verdier received are fundamentally different from the types of benefits at play in the above cases. Specifically, the defendant contends that Mrs. Verdier’s sabbatical wages were simply part and parcel of her salary pursuant to a collective bargaining agreement from the time she began her job with the school district. The defendant further contends that Mrs. Verdier failed to create a factual record showing she earned or paid for her sabbatical pay through lower wages via a payroll deduction or a similar out-of-pocket mechanism, either when she first started her job or at any time during the course of her employment. Essentially, the defendant’s view is Mrs. Verdier has not demonstrated that she provided any consideration for her sabbatical pay and therefore the court’s refusal to reduce the verdict by $25,867.01 would allow her to receive an impermissible windfall under the MVFRL. Counsel have not cited, nor are we aware of, authority which specifically discusses sabbatical pay in relation to the concept of double recovery and sections 1719 and 1722 of the MVFRL.

Preliminarily it is important to note there is no dispute that the proportion of the sabbatical pay is set by statute: one-half Mrs. Verdier’s annual salary pursuant to section 11-1169 of the Public School Code of 1949,24 P.S. §1-101 et seq.: Salary on leave. The person on leave of absence shall receive at least one-half of his or her regular salary during the period he or she is on sabbatical leave. There is also no dispute that Mrs. Verdier’s right to receive this benefit arose as a result of a collective bargaining agreement which was in place when she began her employment in 1970. Indeed, defense counsel specifically stipulated at trial (and continues to stress) that the sabbatical leave existed “pursuant to [Mrs. Verdier’s] employment with the Greencastle-Antrim School District and by virtue of a collective bargaining agreement in effect at that time.”

Neither party cites to authority which specifically addresses the nature of sabbatical leave and pay, even though this type of benefit has both statutory and contractual origins, has long been part of compensation for those employed in the public school system and is a common source of litigation. 24 P.S. §11-1166 1171; Bellefonte Area School District v. Deak, 779 A.2d 1240 (Pa. Commw. 2001); Nelson v. Western Beaver County School District, 89 Pa. Commw. 126, 491 A.2d 964 (1985); Walter v. North Hills School District, 87 Pa. Commw. 302, 487 A.2d 85 (1985). A teacher becomes eligible for sabbatical benefits upon the satisfactory completion of the requisite number of years of service. Section 11-1166. Those years of service are part of the consideration underlying what has come to be treated as an accrued property right. Bristol Township School District v. Karafin, 84 Pa. Commw. 52, 478 A.2d 539 (1984); School District of the City of Duquesne v. Duquesne Education Association, 99 Pa. Commw. 63, 512 A.2d 103 (1986); North Pocono School District v. Buscarini, (C.P. Lackawanna, March 9, 1998).

A review of the collateral source rale provides valuable background on the issue of duplicate recovery. Under the rule, payments from a third party do not diminish the damages otherwise recoverable from the wrongdoer. Johnson v. Beane, 541 Pa. 449, 664 A.2d 96 (1995). The victim is entitled to the damages caused by the tortfeasor’s negligence regardless of compensation the victim receives from other sources. Nigra v. Walsh, 797 A.2d 353 (Pa. Super. 2002). The principle underlying the rule is that it is better for the victim to receive a windfall than for the tort-feasor to be relieved of responsibility for the wrong. Kagarise v. Shover, 218 Pa. Super. 287, 275 A.2d 855 (1971).

This principle applies to many types of benefits, among them sick pay, medical expense reimbursements or similar monies paid voluntarily or under contract by the victim’s employer, including gratuitously continued salary. McGinley v. U.S., 329 F. Supp. 62 (E.D. Pa. 1971). Benefits in the form of diminished wages which are received by a plaintiff from her employer during the period she is incapable of working because of the tortfeasor’s actions are collateral benefits and may not serve to reduce the victim’s monetary award. This principle applies to payments made pursuant to an employment contract where the injured party (before her injury) furnished consideration, making it an obligation of the employer to pay those benefits, assuming the injured party had faithfully performed her side of the contract. It also applies to cash gratuities and services rendered without charge, such as treatment in a veterans hospital. Chenoweth v. Schaaf, 576 F. Supp. 1556 (W.D. Pa. 1984); Restatement (Second) of Torts, §920(A), comment b; 1 Summ. Pa. Jur. 2d Torts, §9:20 (2008); Pennsylvania Evidence, Packel & Poulin, §423 (2d ed. 1999 and 2008 Supp); McElwee v. Bundy, Franklin C.L.J., vol. 22, no. 32 (2005).

It has been held that sabbatical pay is a collateral source in the sense that the teacher-victim would not have needed to use it unless she had been injured by the tort-feasor and the injured person may lose her opportunity to use the sabbatical for non-medical reasons, such as education, research or travel. Beasley v. Yokem Toyota, 767 So.2d 149 (La. App. 2d Cir. 2000). (citations omitted) The logic behind this form of leave and pay is that there is an advantage to the employer (and in the case of teachers, her students and the wider community) because the employee returns to work after using the sabbatical for study, travel-or health in a better frame of mind or more physically capable of performing her teaching duties. Such payments should not inure to the benefit of the tort-feasor and diminish his liability. Bianchi v. Paliga, 1984 WL 3798 (Ohio App. 7 Dist.) (not reported in N.E.2d). Indeed, use of sabbatical leave because of physical illness or disability was specifically anticipated and provided for by our own legislature in enacting section 11-1166. Roy v. North Braddock School District, 4 Pa. Commw. 237, 285 A.2d 550 (1971).

The defendant argues Mrs. Verdier has failed to show that she earned or paid for her sabbatical salary and/or furnished any consideration for those benefits insofar as she did not participate in the collective bargaining process and did not accept a lower salary in exchange for her sabbatical, nor was she subject to payroll deductions which accumulated to constitute the fund from which she was paid during her leave. We find this argument untenable for two reasons. First, regardless of whether Mrs. Verdier personally participated in the collective bargaining process when she initially began her employment back in 1970, it is clear she became eligible for her sabbatical only after she satisfactorily performed her job duties, completed the requisite years of service, and fulfilled her side of the contract with the school system. 24 P.S. § 11-1166. In this sense, she did furnish sufficient consideration for her sabbatical pay and the fact that she made no out-of-pocket contributions such as payroll deductions or premiums is not relevant or key. What is relevant and key is that this collateral payment source one-half her annual salary should not be denied her because to do so would allow the defendant to escape responsibility for the damages she caused to Mrs. Verdier.

The second reason we are unpersuaded is because we disagree with the assumption underlying much of the defendant’s argument, namely, that it was incumbent upon Mrs. Verdier to prove that the lump-sum award for lost wages should not be reduced by the amount of her sabbatical pay. On the contrary, we find it was the defendant’s burden as the petitioner on this motion to come forward with the legal and factual grounds which demand that this court disturb a jury verdict, in other words, that the court is compelled to find as a matter of law that Mrs. Verdier is not entitled to collect what the jury determined is an appropriate award to make her whole. The defendant simply has not met this burden and therefore the court will deny the motion to mold/reduce the verdict by $25,867.01.

Plaintiffs ’Motion for Delay Damages

Pennsylvania Rule of Civil Procedure 238 allows a plaintiff who prevails on her claim for damages for bodily injury to file a motion requesting delay damages. At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, damages for delay shall be added to the compensatory damages awarded against each defendant found to be liable to the plaintiff in the verdict of a jury and shall become part of the verdict. Pa.R.C.P. 238(a)(1). Damages for delay shall be awarded for the period of time from a date one year after the date original process was first served in the action up to the date of the verdict. Pa.R.C.P. 238(a)(2). Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which damages are awarded, plus one percent, not compounded. Pa.R.C.P. 238(a)(3).

The defendant opposes the award of delay damages, but that opposition is simply a function of the defendant’s view that the plaintiffs are not entitled to a net award of $34,800 based on the issues addressed in connection with the defendant’s motion to mold/reduce the verdict. The defendant has not objected to the particular time and interest rate calculations as they appear in the record within the plaintiff’s motion, even though we have found the calculations incorrect and have made the necessary computations, as set forth below.

The record shows the plaintiff served a writ of summons on the defendant on May 15, 2003. Delay damages began to accrue one year later on May 15, 2004. The jury rendered its verdict on May 22, 2008. The intervening period was 1,469 days (4 years, 8 days). Applying the pertinent time and rate calculations as set forth in the plaintiffs’ motion, the total amount of delay damages is $10,491.01. Adding this figure to $34,800 yields a final verdict of $45,291.01. An appropriate order is attached.

ORDER

Now October 6, 2008, consistent with the attached opinion, the court hereby denies the defendant’s motion to mold and reduce the verdict. The court grants the plaintiffs’ motion for delay damages insofar as the final verdict/award is $45,290.01 and hereby enters judgment accordingly.

Pursuant to Pa.R.C.P. 236, the prothonotary shall give written notice of the entry of this order, including a copy of this order, to each party’s attorney of record and to each party, and shall note in the docket the giving of such notice and the time and manner thereof.

      . On February 11,2008, the court granted the defendant’s motion to bifurcate after considering the plaintiffs’ objection and the pertinent law. A single jury was empanelled to decide both liability and damages.

      . The trial record has not been transcribed. This quotation appears in the record on pages 2-3 of the defendant’s brief and is consistent with the court’s recollection of the stipulation.

      . The plaintiffs incorrectly calculated the delay damages figure as $10,490.21 and the final verdict amount as $43,290.01.


author: GRINE, P.J.,

text:
    Drauch v. Applegate

      Gary J. Ogg, for plaintiff.

      John A. Statler and Stephen J. Magley, for defendants Applegate and Patten.

      John L. McIntyre, for defendant Zola New World Bistro.

      Joseph P. Green, for defendant Lesniewski.

      Joseph R. Musto, for defendant Wertz.

      David P. Wilk, for defendant Barrish.

      James J. Dodd-o, for defendant Scott.

      J. Michael Dorezas, for defendant Thompson.
    October 17, 2008
   GRINE, P.J.,

Presently before the court are preliminary objections brought by Patricia Patten and Katherine Applegate (defendants). Defendants claim that Count III and IV of the complaint brought by Michael Drauch (plaintiff) should be stricken.

PROCEDURAL BACKGROUND

Plaintiff initiated this cause of action by filing a complaint on or about January 8, 2008. Defendants filed preliminary objections to plaintiff’s complaint on May 21,2008. By order dated May 21,2008, the court established a briefing schedule for the parties pertaining to defendants’ preliminary objections. Both parties filed their briefs in a timely manner.

CONCLUSIONS OF LAW

(1) The “function of punitive damages is to deter and punish egregious behavior.” G.J.D by G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d 1127, 1129 (1998).

(2) “[P]unitive damages can only be awarded where a defendant’s conduct is found to be malicious, wanton, willful, reckless, or oppressive.” Huston v. Texaco Inc., 371 Pa. Super. 399, 406, 538 A.2d 502, 505 (1988). (citations omitted)

(3) “[Ujnder the appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages.” Focht v. Rabada, 217 Pa. Super. 35, 42, 268 A.2d 157, 161 (1970).

(4) “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.” Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983-84 (Pa. Super. 2005). (citations omitted)

(5) “[T]o justify an award of punitive damages, the fact-finder must detennine that the defendant acted with a culpable state of mind, i.e., with evil motive or reckless indifference to the rights of others.” Id. at 984

DISCUSSION

Pennsylvania allows for punitive damages in very limited circumstances. “[PJunitive damages can only be awarded where a defendant’s conduct is found to be malicious, wanton, willful, reckless, or oppressive.” Huston v. Texaco Inc., 371 Pa. Super. 399, 406, 538 A.2d 502, 505 (1988). (citations omitted) In Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), the Pennsylvania Supreme Court adopted section 908(2) of the Restatement (Second) of Torts with regard to the reckless conduct required to support an award of punitive damages. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 493, 485 A.2d 702, 704 (1991); see also, McDaniel v. Merck, Sharp and Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987). Section 908(2) provides, in part: “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Restatement (Second) of Torts §908(2). Comment b to section 908(2) further provides, “[pjunitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.”

The issue the court must determine is whether plaintiff has pleaded sufficient facts to warrant a claim of punitive damages. There is only one case which directly addresses the issue of punitive damages in a driving under the influence case. In Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970), the Superior Court found that a lower court erred in finding that punitive damages could not be awarded as a matter of law. The court stated “we believe that driving while under the influence of intoxicating liquor with its very great potential for hann and serious injury may under certain circumstances be deemed ‘outrageous conduct’ and ‘areckless indifference to the interests of others’ sufficient to allow the imposition of punitive damages.” Id. at 40, 268 A.2d at 160. The court then remanded the case to the lower court to determine whether the facts of the case supported a punitive damages claim.

In the case currently before this court, the facts support a claim for punitive damages against defendant Applegate only. Taking the facts pleaded as true, defendant Apple-gate did engage in conduct consistent with the Restatement (Second) of Torts §908(2) standard of “conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Driving a motor vehicle with a blood alcohol level at .20 shows a reckless indifference to the rights of others. Therefore the preliminary objections, as they pertain to defendant Applegate are overruled.

Plaintiff has failed to point to any facts which would give rise to a cause of action for punitive damages against defendant Patten. Plaintiff claims that defendant Patten allowed defendant Applegate to operate defendant Patten’s vehicle while under the influence. As stated above, comment b to section 908(2) provides, “[pjunitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.” There is nothing in the complaint which would show that defendant Patten committed anything other than an error in judgment in allowing a vehicle she owned to be driven by defendant Applegate. Therefore, plaintiff’s preliminary objections as they relate to defendant Patten are sustained. Count IV shall be stricken from plaintiff’s complaint.

ORDER

And now, October 17,2008 after a review of the briefs submitted by counsel, it is hereby ordered and decreed that defendants’ preliminary objections as they pertain to defendant Applegate are overruled. Defendants’ preliminary objections as they pertain to defendant Patten are sustained. Count IV of plaintiff’s complaint shall be stricken from plaintiff’s complaint.