author: FRITSCH JR., J.,

text:
    Londergan v. Asamura

      C.P. of Bucks County,
    No. 92-00183-29.

      Michael D. Fishbein, for plaintiff.

      Harry B. Gosnear, for defendant Asamura.

      Martin J. Corr, for defendant State Farm.
    August 2, 2011
   FRITSCH JR., J.,

The matter presently before the court is the appeal of Frances Londergan (hereinafter “appellant”) from this court’s orders of February 4, 2011, and June 13,2011, in which we entered a judgment of non pros against appellant and subsequently denied her petition to open and/or strike the judgment of non pros.

BACKGROUND

On January 8, 1992, appellant filed a complaint in the Bucks County Court of Common Pleas alleging personal injuries related to an altercation occurring at Doylestown Auto Center on March 14, 1991. The complaint alleged that appellee William Asamura (hereinafter “Asamura”), acting in the scope of his employment with appellee State Farm Insurance Company (hereinafter “State Farm”), violently struck appellant on the right side of her face, seriously and permanently injuring her, following a dispute over the appraisal of damages to a motor vehicle. The complaint set forth claims for negligence, intentional battery and trespass.

Following the close of pleadings in October of 1992, the parties began to conduct discovery. As part of the discovery process, the parties deposed eight individuals between February of 1995 and April of 1998. On March 29, 1996, the first termination notice was sent out by the Prothonotary’s Office for lack of activity on the docket for a period of over two years. Michael T. Fishbein, Esquire, counsel for appellant, filed a certificate of active status on April 11,1996 in order to keep the case open. On December 7,1998, a praecipe for jury trial was filed for the first time in this matter. It appears, for reasons unclear from the record, that the matter was never actually listed for trial. The parties continued with the discovery process, which included an Independent Medical Examination (“IME”) of appellant conducted by Dr. Zlock. A second trial praecipe was filed on April 20, 2001, and the matter was listed for trial during the term of June 18 through June 29, 2001. Subsequently, the matter was stricken from the trial list at the request of Earl T. Britt, Esquire, counsel for defendant Asamura, because of a pre-paid vacation. Attorney Britt informed the court administrator that due to the schedules of all counsel involved in the case, the earliest the matter could be re-listed would be in September of 2001. The court administrator informed attorney Britt, in a letter in which counsel for all parties were copied, that a new trial praecipe would need to be filed in order to have the case placed on a trial list.

During the period of May 2003 through February 2010, the docket indicates that the Prothonotary’s Office mailed out four termination notices. In response to every termination notice, appellant’s counsel filed a certificate of active status. During that time period, no other activity appears on the docket.

On July 16,2010, Asamura filed a motion for judgment of non pros. On July 19, 2010, State Farm filed a nearly identical motion for judgment of non pros. On August 18, 2010, appellant filed separate answers with new matter to both motions for judgment of non pros. On December 6 and 8, 2010, Asamura and State Farm, respectively, filed a praecipe for disposition of their motions under Bucks County Local Rule 208.3(b). On February 7, 2011, in two separate orders, we granted the motions for judgment of non pros and entered a judgment against appellant and in favor of Asamura and State Farm.

On February 28,2011, appellant filed a petition to open and/or strike the judgment of non pros. On April 18,2011, State Farm filed an answer to the petition to open and/ or strike the judgment of non pros. On April 21, 2011, Asamura filed his answer to the petition. On the same day, appellant filed a praecipe for disposition of the petition under Bucks County Local Rule 208.3(b). On June 13, 2011, we entered an order denying the petition to open and/or strike the judgment of non pros.

On or about July 1, 2011, appellant filed a notice of appeal with Superior Court to the orders granting the judgment of non pros in favor of Asamura and State Farm and the order denying her petition to open and/or strike the judgment of non pros.

STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

Upon request of this court, pursuant to Pennsylvania Rule of Appellate Procedure 1925, appellant has filed a general concise statement of errors complained of on appeal. Appellant contends that she is unable to discern the basis for the orders underlying the present appeal and therefore unable to file a more specific statement. Nonetheless, appellant has filed a statement which lists generalized errors she believes this court has committed.

DISCUSSION

Judgment of Non Pros

Asamura and State Farm filed nearly identical motions for judgment of non pros against appellant at approximately the same time. Although appellant individually responded to both motions, the same underlying facts apply with respect to the analysis of each motion.

Non Prosequitur, commonly referred to as non pros, is a judgment entered by the trial court that terminates the plaintiff’s action due to the plaintiff’s failure to properly and/or promptly prosecute the case. See Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998). The Pennsylvania Supreme Court in James Brothers Company v. Union Banking and Trust Company of Dubois, announced a three part test for entering a judgment of non pros as follows:

A court may properly enter a judgment of non pros when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death or unexplained absence of material witnesses.

James Brothers Company v. Union Banking and Trust Company of Dubois, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968).

In the present case, appellant’s actions show a clear lack of due diligence and failure to proceed with reasonable promptitude. The present action was initiated in 1992 and was last listed for trial in 2001. In the nearly 10 years since the last trial listing, appellant has done nothing more than file certificates of active status and has taken no action to move this case forward. Upon the filing of motions for judgment of non pros with the court, appellant claims that suddenly she is ready, willing and prepared to file a praecipe listing this matter for trial.

Furthermore, appellant has not presented a compelling reason to explain the delay. Appellant has provided a plethora of reasons explaining why the case has essentially sat dormant. None ofthose reasons, however, justify a delay of almost 10 years. Appellant’s counsel explains that for a period beginning in the fall of 2001, he was involved in class action litigation surrounding the diet drug “FenPhen.” Allegedly, counsel’s around-the-clock involvement with the class-action litigation made it “extremely difficult, if not altogether impossible” to pursue the present litigation. The court certainly recognizes the efforts of appellant’s counsel in relation to the “FenPhen” litigation. Such an obligation, however, does not excuse an attorney from performing due diligence on other cases he has willingly undertaken. Additionally, appellant cites an emotional and legally difficult divorce from her husband as a reason for the delay. Although the divorce action may have taken precedence in her personal life, it is not a sufficient reason to excuse the lengthy delay that has resulted in years of inactivity on the present case.

Appellant also attempts to shift blame for the delay over to counsel for Asamura. Appellant argues that counsel for Asamura is responsible for the delay in that he was assigned the responsibility to file a trial praecipe in September of 2001, on the basis that the letter from the court administrator indicating that a new trial praecipe would need to be filed was addressed to him. We do not find this argument to be persuasive. The law in Pennsylvania is well settled that a plaintiff has a duty to move her cause of action forward. Based on that established principle, appellant was responsible for making sure that the case was re-listed for trial. Even if appellant’s counsel believed that Asamura’s counsel should have filed a new trial praecipe, when Asamura’s counsel failed to do so, it became the duty of appellant to move the case forward.

The failure to promptly move the case forward also caused prejudice to Asamura and State Farm. The alleged altercation took place onMarch 14,1991, over twenty years ago. Key witnesses were deposed in this matter between 1995 and 1998. It is highly probable that those witnesses, if even available, will now be unable to recall the events surrounding the altercation. Dr. Zlock, who performed the IME of appellant, is now retired and is unable to locate any records that could assist him in testifying with respect to that examination. Furthermore, Asamura’s counsel, attorney Britt, is now permanently disabled and would be unable to assist in his defense.

Based on the foregoing reasons, we determined that it was proper to enter a judgment of non pros against appellant and in favor of Asamura and State Farm.

Open and/or Strike Judgment

In response to the entry of judgment of non pros, appellant filed a petition to open and/or strike the judgment of non pros. Both Asamura and State Farm timely filed responses in opposition to the petition.

The Pennsylvania Superior Court has stated that the initial entry of judgment of non pros and a subsequent request for relief from a judgment of non pros are governed by different standards. Stephens v. Messick, 799 A.2d 793, 797 (Pa. Super. 2002). In Stephens, the Pennsylvania Superior Court set forth the following three part test to determine whether a party may obtain relief from a judgment of non pros:

First, the petition seeking relief from the judgment of non pros must be promptly filed. Second, there must be a reasonable explanation for the delay that preceded the entry of the judgment of non pros. Third, the movant must show facts to exist that would support a meritorious cause of action. A trial court’s decision to deny a petition to open or strike a judgment of non pros is scrutinized on the abuse of discretion standard of appellate review.

Stephens, 799 A.2d at 798.

In the present case, appellant clearly was prompt in filing the petition to open and/or strike the judgment of non pros. The judgment of non pros was entered on February 7, 2011. The petition to open and/or strike the judgment of non pros was filed on February 28, 2011. A period of three weeks elapsed before appellant sought relief from the judgment of non pros. As such, the petition was promptly filed.

With respect to the second prong, we believe that there was not a reasonable explanation for the delay that caused the judgment of non pros to be entered. As discussed above, we do not find that appellant’s personal problems or counsel for appellant’s involvement in class action litigation to be reasonable explanations for a delay of almost 10 years in activity on the docket. Additionally, we do not find appellant’s contention that Asamura was solely responsible for listing the case for trial to be persuasive.

With respect to the third prong regarding the meritorious cause of action, we believe that the facts of record are sufficient to sustain the causes of action pled by appellant. Regardless, our decision to deny relief from the entry of a judgment of non pros does not rest on the merit or lack of merit of appellant’s causes of action but rather the unreasonable delay in pursuing those causes of action.

Based on the reasons stated herein, we found that appellant was unable to provide a reasonable explanation for the delay that resulted in the entry of a judgment of non pros. As such, we denied the petition to open and/or strike the judgment of non pros.

CONCLUSION

We found that appellant did not set forth a reasonable explanation for the delay in bringing this 1992 case to trial. Accordingly, we believe that the present appeal lacks merit.

      . Termination notices were sent by the Prothonotary on the following dates: 5/2/2003,5/13/2005,6/15/2007 and 2/9/2010.

      . Certificates of active status were filed with the Prothonotary on the following dates: 5/9/2003, 5/25/2005, 6/21/2007 and 2/22/2010.

      . As noted above, the letter from the court administrator was copied to counsel for all parties involved. As such, all counsel were aware of the procedures that needed to be complied with in order to have the matter re-listed for trial.


source: Caselaw Access Project

author: TERESHKO, J.,

license: Public Domain

text:
    Crews v. Albert Einstein Medical Center

      Marc A. Weinberg, for plaintiff.

      Cy Goldberg, for defendant.
    August 5, 2011
   TERESHKO, J.,

Plaintiffs Lavima Crews and Rosemarie Bowden appeal the March 7th, 2011 order granting defendant Albert Einstein Medical Center’s preliminary objections and dismissing plaintiffs’ complaint.

FACTUAL BACKGROUND

On January 9, 2009, plaintiff Rosemarie Bowden (“Bowden”) was pushing her mother, plaintiff Lavirna Crews (“Crews”) in a seated walker on defendant Albert Einstein Medical Center’s (“AEMC”) property. As Bowden was pushing Crews, the walker got caught on an uneven exit threshold on the hospital premises causing both Crews and Bowden to fall and suffer injuries. (Complaint 19,18).

On December 30, 2010 Crews and Bowden instituted this action asserting that AEMC was negligent in failing to maintain their premises in a safe condition. (Complaint ¶11). In the complaint the location of the fall was identified as “the subject area.” (Complaint ¶7, 16).

AEMC filed their preliminary objections to the plaintiffs’ complaint on January 18, 2011. In the preliminary objections, AEMC stated that the plaintiffs’ complaint failed to conform to Pennsylvania Rule of Civil Procedure 1028(a)(2) stating that preliminary objections may be filed on grounds of failure of a pleading to conform to law or rule of court. (Defendant’s preliminary objections, pg. 2). They argue that under Rule 1019(a) of the Pennsylvania Rules of Civil Procedure the plaintiffs’ complaint fails to sufficiently identify the location of the incident. Id. Defendant also argued that the complaint should be dismissed because it was filed without a signed verification by plaintiff Bowden. Id. at 3.

On January 20,2011 Bowden submitted the verification to the complaint. The plaintiffs also submitted an amended complaint on February 7,2011. In their amended complaint the location of the fall was identified as “located between the hallway and vestibule of the hospital premises.” (Plaintiffs’ amended complaint, ¶7, 16).

AEMC filed their preliminary objections to plaintiffs’ amended complaint on February 10, 2011. Again AEMC argued that plaintiffs’ amended complaint failed to conform to Pennsylvania Rule of Civil Procedure 1028(a) (2) stating that preliminary objections may be filed on grounds of failure of a pleading to conform to law or rule of court. (Defendant’s preliminary objections to amended complaint, pg. 2). AEMC argued that under Rule 1019(a) describing the location of the fall as “between the hallway and vestibule of the hospital premises” is not specific enough and fails to sufficiently identify the location of the incident. AEMC attached a map of the medical center showing that there are 11 buildings with many hallways and vestibule areas.

This court granted the defendant’s preliminary objections to the amended complaint, dismissing the case with prejudice on March 7, 2011. Plaintiffs Crews and Bowden appealed from this order on April 6, 2011 and subsequently filed their concise statement of matters pursuant to Pa. R.A.P. 1925(b).

One issue on appeal is whether this court committed an error of law or abused its discretion in granting defendant’s preliminary objections to the amended complaint where this court found that the amended complaint was not specific enough and failed to sufficiently identify the location of the incident.

The second issue raised by the plaintiffs is whether the court made an error of law or abused its discretion when it failed to order plaintiffs to file an amended complaint based upon defendant’s preliminary objections of insufficient specificity of the location of the incident.

LEGAL ANALYSIS

Lack of Specificity

Under Pennsylvania law, the standard for sustaining preliminary objections in the form of demurrer are quite strict:

“A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law... In order to sustain the demurrer, it is essential on its face that his claim cannot be sustained, and the law will not permit recovery... If there is any doubt, this should be resolved in favor of overruling the demurrer.”

National Recovery Systems v. Frebraro, 287 Pa. Super 442, 444, 430 A.2d 686, 687 (Pa. Super 1981).

The court may dismiss a complaint by way of preliminary objections when it is free from doubt based on the pleaded facts that the pleader is unable to prove a legally sufficient claim to establish his right to relief. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182.

Pennsylvania Rule of Civil Procedure 1028(a)(2) authorizes a party to challenge a pleading that fails to conform to law or rule of court by filing a preliminary objection. Ferrari v. Antonacci, 456 Pa. Super 54, 57, 689 A.2d 320, 322 (Pa. Super. 1997).

Rule 1019(a) of the Pennsylvania Rules of Civil Procedure states, “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008). This rule specifically requires the complaint to include the material facts sufficient to allow the defendant to prepare his case. Id. The complaint must do more than give the defendant fair notice of the plaintiff’s claim; it must fully summarize the material facts, those that are essential to support the claim. Id. at 1236. The facts in the complaint must be, “sufficiently specific so as to enable defendant to prepare his defense.” Id.

The plaintiffs’ amended complaint fails to sufficiently identify the location of the incident. The amended complaint only identifies the location of the alleged fall as an “uneven exit threshold located between the hallway and the vestibule of the hospital premises.” (Plaintiffs’ amended complaint, ¶7). The defendant’s premise includes 11 buildings on a vast campus. There are numerous thresholds, hallways, and vestibule areas. There is no way to determine where the location of the accident happened based on the amended complaint. The information in the amended complaint is not sufficiently specific so as to enable the defendant to prepare his defense. Accordingly, granting the defendant’s preliminary objections and dismissing the amended complaint was proper.

Failing to Order Plaintiffs to Amend Complaint

Under Pennsylvania rule of Civil Procedure 1028(c) (1), “A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections.” The plaintiffs in this case were free to file a second amended complaint after being served with the defendant’s preliminary objections to plaintiffs’ amended complaint. The Pennsylvania Rules of Civil Procedure are clear that court permission is not required to amend the complaint under these circumstances. Plaintiffs’ failure to file a second amended complaint was the result of their own neglect.

CONCLUSION

For all of the aforementioned reasons this court respectfully requests that the March 7, 2011 order be affirmed.


author: COX, J.,

text:
    Cook v. New Castle Area Sch. Dist.

      C.P. of Lawrence County,
    No. 11973 of 2007.

      Jonathan Solomon, for plaintiff.

      Diego Correa, for defendants.
    July 15, 2011
   COX, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendants New Castle Area School District, George Gabriel, Fred Mozzocio and Paul A. Fulena, in which they argue the following:

I. The plaintiff did not properly transfer this matter from Federal Court to the Court of Common Pleas in accordance with 42 Pa.C.S.A. §5103(b);
II. The plaintiff is precluded from relitigating his claim of retaliation by the doctrine of collateral estoppel because that issue was already decided in Federal Court;
III. The plaintiff has failed to establish a causal relationship between the plaintiff’s speech and any action by the New Castle School District that was adverse to the plaintiff’s employment;
IV. Any limitation on speech that occurred in this matter was permissible as a matter of law; and
V. The plaintiff’s claim for attorney fees or other monetary damages is not recognized in actions brought pursuant to the Pennsylvania Constitution.

At oral argument, the plaintiff withdrew all claims against George Gabriel and Paul A. Fulena regarding a newly-created custodial position, so the motion for summary judgment is granted as to George Gabriel and Paul A. Fulena.

The plaintiff Daniel Cook has been employed by the New Castle Area School District (hereinafter “NCASD”) as a custodian since 1986. Additionally, the plaintiff was involved in local politics, which included installing signs in yards, distributing campaign literature, working at the polls, arranging social gatherings and soliciting campaign contributions for candidates. It must be noted that the plaintiff did campaign work during the 2007 primary election for the defendant Fred Mozzocio, who is a member of the Board of Directors of the NCASD and was board president from December 2004 until December 2007.

The plaintiff later decided that he would support three female candidates for election to the NCASD Board of Directors in the general election. The names of those candidates were Andrea Przybylski, Mary Ann Tofel and Barbara Razzano. The general election was held on November 6, 2007. On the morning of the election, the plaintiff asked Jackie Trott, a cafeteria worker, which candidates she was supporting for school board. The plaintiff informed Ms. Trott he was supporting “the girls”, referring to Ms. Przybylski, Ms. Tofel and Ms. Razzano. Subsequently, Ms. Trott informed him that she was going to work at the polls at Croton United Methodist Church for Mr. Mozzocio once she finished her work shift. Mr. Cook was on his break at the time of the conversation with Ms. Trott, but there is no evidence produced by the plaintiff to establish that Ms. Trott was also on her break. Later that morning, Andrew Gangliero, the principal at George Washington Intermediate School, approached the plaintiff in the hallway and notified him that Mr. Mozzocio called the school in reference to the plaintiff’s conversation with Ms. Trott. Mr. Gangliero then informed the plaintiff that Mr. Mozzocio said, “if Dan Cook didn’t stop talking about him and the election with the girls in the kitchen, he was going to come up to the school to see Mr. Cook, and things could get ugly.” The plaintiff immediately informed Mr. Fulena and Mr. Gabriel about the remark but no action was taken by either individual or any other party or entity. Also, there was no evidence produced that Mr. Mozzocio came to the school or that any other comments were made, nor did the plaintiff produce any evidence that his political activities were curtailed or his employment affected in any manner.

Initially, the plaintiff filed suit in state court for claims under 42 U.S.C. §1983 and Article I, Section 7 of the Pennsylvania Constitution for violations of the plaintiff’s right to free speech. However, the defendants removed the case to the United States District Court for the Western District of Pennsylvania. On December 16, 2008, Federal District Court Judge Gary L. Lancaster rendered a decision to dismiss the 42 U.S.C. §1983 claim and ruled that the defendants were permitted to limit that type of speech under federal law, but the court declined to exercise its supplemental jurisdiction over the state law claim for a violation of Article I, Section 7 of the Pennsylvania Constitution. The plaintiff appealed that decision to the United States Court of Appeals for the Third Circuit. That court affirmed the ruling of the Federal District Court and reasoned that the statement made by Mr. Mozzocio was at most a verbal reprimand which was not retaliatory conduct that adversely affected the plaintiff’s First Amendment rights under the United States Constitution. The Third Circuit-Court of Appeals did not address whether Article I, Section 7 of the Pennsylvania Constitution applied to the current case. On January 21, 2009, the plaintiff filed a Certification of Transfer under 42 Pa.C.S.A. §5103(b) (2), to which he attached a copy of the docket entries from Federal District Court and a complaint containing the claim under article I, section 7 of the Pennsylvania Constitution to return the case to state court. The defendants have now filed a motion for summary judgment.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspaper. Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)).

The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones. Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspaper, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

The first issue the court will address is the defendants’ claim that the plaintiff is precluded by the doctrine of collateral estoppel from raising his claim under Article I, Section 7 of the Pennsylvania Constitution as that issue was previously decided by the Federal District Court and the Third Circuit Court of Appeals.

Collateral estoppel is also known as “issue preclusion,” and it means that an issue, whether it is of law, fact or evidence, has been determined by a valid and final judgment and it cannot be litigated again by the same parties. Commonwealth v. Holder, 569 Pa. 474, 479, 805 A.2d 499, 502 (2002). “[F]or the doctrine of collateral estoppel to apply it must appear that the fact or facts at issue in both instances were identical; that these facts were essential to the first judgment and were actually litigated in the first cause.” Schubach v. Silver, 461 Pa. 366, 377, 336 A.2d 328, 334 (1975). Pursuant to that doctrine, factual and legal determinations are conclusive between the parties in any action subsequent to the original decision. Erisco Industries. Inc. v. W.C.A.B. (Luvine), 955 A.2d 1065 (Pa. Cmwlth. 2008) (citing Mason v. Workmen’s Comp. Appeal Bd. (Hilti Fastening Sys. Corp.), 657 A.2d 1020 (Pa. Cmwlth. 1995)). Collateral estoppel may only be applied if:

(1)the issue decided in the prior adjudication was identical with the one presented in the later action,
(2) there was a final judgment on the merits,
(3) the party against whom the plea is asserted was a party.. .to the prior adjudication, and
(4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Lamborn v. W.C.A.B. Armoroso Baking, 656 A.2d 593, 595 (Pa. Cmwlth. 1995) (citing Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574-575, 345 A.2d 664, 668 (1975)).

The doctrines of res judicata and collateral estoppel should be liberally construed and applied without technical restriction and should not be defeated for minor differences in form, parties or allegations. McArdle v. Tronetti, 426 Pa. Super. 607, 612, 627 A.2d 1219, 1222 (1993). Collateral estoppel prevents a party from litigating an issue it previously litigated unsuccessfully in another action. Shaffer v. Smith, 543 Pa. 526, 529, 673 A.2d 872, 874 (1996).

In the current matter, the doctrine of collateral estoppel does not apply as the Federal District Court and Third Circuit Court of Appeals did not address the specific issue raised by the plaintiff’s complaint. The opinions written by both federal courts specifically address the plaintiff’s 42 U.S.C. §1983 claim, which is based on federal law. However, the district court declined to rule upon the plaintiff’s retaliation claim based on Article I, Section 7 of the Pennsylvania Constitution. In addition, the Third Circuit Court of Appeals did not address the applicability of Article I, Section 7 of the Pennsylvania Constitution. Both courts ruled that Mr. Mozzocio’s remark was not a violation of the First Amendment of the United States Constitution; but, they refrained from addressing the plaintiff’s claim regarding a violation of the Pennsylvania Constitution. Therefore, the plaintiff’s retaliation claim based upon article I, section 7 has not been addressed previously and must be addressed by this court. The defendants’ motion for summary judgment regarding collateral estoppel is denied.

The defendants argue that the plaintiff has failed to set forth a valid claim for retaliation pursuant to Article I, Section 7 of the Pennsylvania Constitution. More specifically, the defendant asserts that the plaintiff has not established a causal connection between the plaintiff’s speech and any adverse action taken by any of the defendants. Moreover, the defendants contend that any limitation on speech which occurred in this matter was permissible as a matter of law.

The plaintiff argues that Article I, Section 7 of the Pennsylvania Constitution provides greater protections than the F irst Amendment of the United States Constitution. The Pennsylvania Supreme Court has stated generally that Article I, Section 7 of the Pennsylvania Constitution provides greater protections to speech and conduct than the First Amendment of the United States Constitution, but there was no explanation regarding the scope of the greater protections provided by the Pennsylvania Constitution. Melvin v. Doe, 575 Pa. 264, 273, 836 A.2d 42, 47 fn. 9 (2003). The court did not discover any precedent indicating that the greater protections provided by Article I, Section 7 of the Pennsylvania Constitution applies to cases in which a plaintiff is asserting a claim for retaliatory actions in response to political statements made by a public employee during working hours. It must also be noted that the plaintiff did not present this court with any case law indicating that the Pennsylvania Constitution provides greater protection in that area. Moreover, an appellate court in Pennsylvania has relied upon the established federal court precedent to decide a retaliation claim. See Koehler v. City of Greensburg, 164 Pa. Cmwlth. 53, 56, 641 A.2d 1287, 1289 (1994). As there is no legal precedence under the Pennsylvania Constitution expanding the protections in this area, this court is compelled to decide this case based on the standards set forth by the United States Constitution and the existing case law.

Article I, Section 7 of the Pennsylvania Constitution states in part, “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” A person does not lose his right to free speech merely because he or she is a public employee. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 415-416, 99 S. Ct. 693, 696-697 (1979). It is incumbent upon the courts to render a decision taking into account the interest of the public employee as a citizen to comment upon matters of public concern and the interest of the state as the employer to promote efficiency of the public services it performs through its employees. Pickering v. Board of Ed. Of Tp. High School Dist. 205, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734 (1968). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-148, 103 S. Ct. 1684, 1690 (1983). It has been determined that speech regarding internal personnel disputes and working conditions does not touch upon matters of public concern; however, speech regarding political elections does encapsulate matters of public concern. Curinga v. City of Clairton, 357 F.3d 305, 313 (3d Cir. 2004); See also Bass v. Richards, 308 F.3d 1081, 1089 (10th Cir. 2002) (citing David v. City & County of Denver, 101 F.3d 1344, 1355 (10th Cir. 1996); Craig v. City of Osawatomie, 143 F.3d 1343, 1346 (10th Cir. 1998)). In order to prove a claim for retaliation for the exercise of an employee’s right to free speech, the plaintiff must establish: “(1) [the plaintiff] engaged in aprotected activity; (2) the defendants responded with retaliatory action sufficient to deter a person of ordinary firmness from exercising his or her rights; and (3) that there was a causal connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006); Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003); Robinson v. Potter, 453 F.3d 990, 994 (8th Cir. 2006); Weixel v. Bd. of Educ. Of N.Y, 287 F.3d 138, 148 (2d Cir. 2002)). Other factors for the court to consider in rendering its decision are as follows:

1. Whether, because of the speech, the government agency is prevented from efficiently carrying out its responsibilities;
2. whether the speech impairs the employee’s ability to carry out his own responsibilities;
3. whether the speech interferes with essential and close working relationships;
4. the manner, time and place in which the speech occurs;
5. whetherthe speaker was in apositionin which the need for confidentiality was so great as to justify dismissal for even completely accurate public statements;
6. whether narrowly drawn grievance procedures required submission of complaints about the operation of the agency to superiors for action prior to taking complaints to the public; and
7. whether a statement that was knowingly or recklessly false, if it were neither shown nor could reasonably be presumed to have harmful effects, would still be protected by the First Amendment. Sacks v. Commonwealth Dept. of Public Welfare, 502 Pa. 201, 465 A.2d 981 (1983) (citing Connick, 461 U.S. 138, 103 S. Ct. at 1691-1694, 75 L. Ed. 2d 708 (1983); Pickering, supra.).

Determining whether a public employee’s free speech rights were violated by retaliatory conduct is a fact intensive inquiry where the court must focus on the status of the public employee and the status of the retaliator in association with the nature of the retaliatory acts. Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003) (citing Suarez Corp. Industries v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). Moreover, “courts have declined to find that an employer’s actions have adversely affected an employee’s exercise of his First Amendment rights where the employer’s alleged retaliatory acts were criticism, false accusations, or verbal reprimands.” Id. It is apparent that verbal reprimands alone are insufficient to establish a retaliation claim; however, adverse decisions regarding employment status and advancement are sufficient. Griffin v. Township of Clark, 2011 WL 1546910 (D.N.J. 2011). In Griffin, the court determined testimonial evidence that the plaintiff was denied requests for overtime and outside work opportunities were sufficient to establish a claim for retaliation. Id. Conversely, in Smith v. Dept. of General Services, PA Capitol Police Bureau, 2005 WL 1563505 (M.D. PA. 2005), the court determined that the plaintiff’s transfer to another shift, an accusation that the plaintiff lied during a predisciplinary proceeding, plaintiff’s removal from his role in the Fraternal Order of Police, other officers placing cheese in the plaintiff’s mailbox and calling him a “snitch” did not constitute a valid retaliation claim. The Smith court reasoned that transferring the plaintiff would normally be sufficient for a retaliation claim, but the plaintiff requested to be transferred to the other shift knowing that it meant he would have to endure a $1.00 per hour pay decrease. Id. The court also stated that the accusation the plaintiff lied was deemed to be de minimis and the allegations regarding the Fraternal Order of Police, harassment by other officers and efforts to block written complaints were not actions taken by the named defendants. Id. Hence, the Smith court granted the defendants’ motion for summary judgment because the plaintiff failed to establish that the defendants’ actions were so severe that they constituted retaliation. Id.

In the case sub judice, the plaintiff has been employed by the NCASD as a custodian since 1986 and has been active in local politics as well, which included doing campaign work during the 2007 primary election for Fred Mozzocio during his bid to retain his seat as a member of the NCASD Board of Directors. It must be noted that Mr. Mozzocio previously was elected to the board of directors and served as board president from December 2004 until December 2007. The plaintiff decided that he would support Ms. Przybylski, Ms. Tofel and Ms. Razzano for the NCASD Board of Directors in the general election held on November 6, 2007. On the morning of the election, the plaintiff asked Jackie Trott, a cafeteria worker, which candidates she was supporting for school board. The plaintiff informed Ms. Trott he was supporting “the girls”, referring to Ms. Przybylski, Ms. Tofel and Ms. Razzano. Subsequently, Ms. Trott informed him that she was going to work at the polls for Mr. Mozzocio after concluding her work shift. This conversation occurred while the plaintiff was on his break, but there is no evidence to indicate that Ms. Trott was also on her break.

Later that morning, Andrew Gangliero, the principal at George Washington Intermediate School, approached the plaintiff in the hallway and notified him that Mr. Mozzocio called the school in reference to the plaintiff’s conversation with Ms. Trott. Mr. Gangliero then informed the plaintiff that Mr. Mozzocio said, “if Dan Cook didn’t stop talking about him and the election with the girls in the kitchen, he was going to come up to the school to see Mr. Cook, and things could get ugly.” The plaintiff immediately informed Mr. Fulena and Mr. Gabriel about the remark.

Now, the plaintiff asserts that the remark made by Mr. Mozzocio was a retaliatory act aimed at stifling his ability to exercise his right to free speech under Article I, Section 7 of the Pennsylvania Constitution. It also seems as though the plaintiff is attempting to impart liability upon the NCASD for the statement made by Mr. Mozzocio because he was then president of the Board of Directors. However, it appears that the plaintiff did not suffer any adverse circumstances arising from Mr. Mozzocio’s statement. There was no change in the plaintiff’s employment position status, working conditions, his hours of employment and pay were not affected by the events that transpired on the day of the general election. Additionally, there is no evidence of an oral or written warning being issued that had an effect on the plaintiff’s employment. Mr. Mozzocio did not take any further action regarding the plaintiff’s comments and he never spoke directly to the plaintiff. The NCASD did not place any sanctions or restrictions upon the plaintiff and there is no evidence in the record indicating that the plaintiff refrained from engaging in political speech or activities after Mr. Mozzocio’s statement. The plaintiff did not present any evidence demonstrating that he was fearful of being harmed or suffered retribution for his political activities. Moreover, the Federal District Court clearly held that the defendants could limit the type of speech utilized by the plaintiff. Cook v. New Castle Area School District, 08-0089, pg. 18-19 (W.D. Pa. 2008). The United States Court of Appeals for the Third Circuit found it unnecessary to address whether Mr. Cook’s activities were protected by his right to free speech and determined that Mr. Mozzocio’s response was merely a verbal reprimand, which is not actionable under a retaliation claim. Cook v. New Castle Area School District, No. 2-08-cv-00089, pg. 6-7 (3d. Cir. 2009).

Unlike Griffin, where the plaintiff’s requests for overtime and outside work opportunities were denied and thus sufficient to establish a claim for retaliation, the plaintiff in the current case did not suffer any adverse action relating to his current job. The plaintiff does not claim that he was denied other work opportunities or that his work environment was negatively affected in any manner. Similar to the accusation that the plaintiff lied in Smith, the statement by Mr. Mozzocio is deemed to be de minimis as the plaintiff’s employment was not adversely affected. Analogous to the accusation in Smith, Mr. Mozzocio’s statement “if Dan Cook didn’t stop talking about him and the election with the girls in the kitchen, he was going to come up to the school to see Mr. Cook, and things could get ugly”, was poorly worded and inappropriate in an employment environment. However, that does not mean that every type of inappropriate interaction between a supervisor or, as in this case, a member of a board of directors is actionable. According to the established precedent in this area, the plaintiff is requiredto demonstrate thathis employment was negatively affected by the retaliatory actions. Hence, the plaintiff has failed to demonstrate that his employment conditions or rights to political speech were adversely affected by Mr. Mozzocio’s remark of November 6, 2007.

For the reasons set forth in this opinion, the court grants the defendants’ motion for summary judgment as to the NCASD and Fred Mozzocio because the plaintiff did not provide adequate evidence to support his retaliation claim. As the court has granted summary judgment because the plaintiff’s claim is legally insufficient, the court will not address the two remaining issues regarding the transfer of the case from federal court to state court and attorney’s fees.

ORDER OF COURT

Now this July 15, 2011, this case being before the court previously for oral argument on the motion for summary judgment filed by the defendants, with all parties appearing through counsel, the plaintiff Daniel Cook, represented by counsel, Jonathan Solomon, Esquire and the defendants New Castle Area School District, George Gabriel, Fred Mozzocio and Paul A. Fulena, represented through counsel, Diego Correa, Esquire and after careful consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. At the time of oral argument, the plaintiff withdrew his claims against George Gabriel and Paul A. Fulena and thus the motion for summary judgment is granted as to George Gabriel and Paul A. Fulena.

2. In accordance with the attached opinion, the motion for summary judgment involving the issue of whether the plaintiff was precluded from pursuing his claim based upon the doctrine of collateral estoppel is hereby denied.

3. In accordance with the attached opinion, the motion for summary judgment based upon the failure to establish a causal relationship between the speech and any adverse action to the plaintiff’s employment is granted.

4. The court will not address the remaining issues contained in the motion for summaiy judgment as it is unnecessary due to the granting of the motion for summary judgment.

5. The Prothonotary of Lawrence County is directed to enter summary judgment in favor of the defendants, New Castle Area School District, George Gabriel, Fred Mozzocio and Paul A. Fulena and against the plaintiff Daniel Cook.

6. The complaint filed by the plaintiff is dismissed with prejudice.

7. The Prothonotary is directed to serve a copy of this order of court upon counsel of record.

      . In Pickering, the court held that the Board of Education violated a teacher’s First Amendment rights where the teacher was dismissed for writing a letter to the editor published in the newspaper criticizing the manner in which the school board handled raising funds for two new schools because that letter to the editor did not affect the daily work duties of the teacher. Pickering, 391 U.S. 563, 88 S.Ct. 1731. It must be noted that Pickering is dissimilar to the current matter because that letter to the editor was written outside of school hours and in this case the plaintiff’s statements to Ms. Trott were made during the normal operating hours of the school.


author: FINLEY, J.,

text:
    Commonwealth v. Williams

      C.P. of Bucks County,
    No. 499-2010.

      Laura Seigle, for Commonwealth.

      William Craig Penglase, for defendant.
    July 6, 2011
   FINLEY, J.,

Alan Craig Williams (appellant), appeals from the order of sentence imposed by this court on March 2, 2011. We file this opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

I. PROCEDURAL AND FACTUAL HISTORY

Following ajury trial, held on July 7, 8,9 and 12,2010, appellant was found guilty of rape by forcible compulsion, rape by threat of forcible compulsion, criminal attempt — involuntary deviate sexual intercourse by forcible compulsion, sexual assault, indecent assault by threat of forcible compulsion, terroristic threats with intent to terrorize another, and false imprisonment.

These charges stemmed from an incident that occurred in the early morning hours of July 22,2009. N.T., 7/7/10, p. 84. The victim, referred to herein as T.H., met the appellant through mutual friends the day prior to the incident. N.T., 7/7/10, p. 107. When they first met, appellant introduced himself to T.H. as “Ali Bob.” N.T., 7/7/10, p. 108. T.H. and appellant, along with two other friends, hung out for a few hours, got food, and ultimately exchanged phone numbers. N.T., 7/7/10, p. 108-10. The next evening, while at her aunt’s home on Chapel Street in Trenton, New Jersey, T.H. made plans to see appellant again. N.T., 7/7/10, p. 112. Appellant arrived at Chapel Street driving a white Pontiac, asked T.H. to take a ride with him to pick up his friend, and T.H. agreed. N.T., 7/7/10, p. 114. During the ride, appellant informed T.H. that he was a member of the gang, the Bloods. N.T., 7/7/10, p. 117. T.H. and appellant eventually crossed the Morrisville Bridge, heading into Pennsylvania, at which point T.H. asked appellant where they were going. N.T., 7/7/10, p. 116. Appellant assured her they would be there in 20 minutes. N.T., 7/7/10, p. 116.

The first stop they made that night was at the 7-Eleven on Trenton Avenue because appellant needed to get some food. N.T., 7/7/10, p. 117. While the appellant entered the store, T.H. remained in the car and called a friend. N.T., 7/7/10, p. 118. Unbeknownst to T.H., in addition to purchasing food, appellant also purchased a pack of condoms. N.T., 7/7/10, p. 198. After leaving 7-Eleven, appellant drove to the Country House Motel. N.T., 7/7/10, p. 127. Upon pulling into the hotel parking lot, T.H. asked appellant if his friend was staying at the motel. N.T., 7.7.10, p. 127. Without answering, the appellant walked into the motel’s office. N.T., 7/7/10, p. 127. When appellant returned he approached the passenger side of the vehicle and told T.H. to get out. N.T., 7/7/10, p. 127. Not knowing where she was, T.H. refused to get out of the car. N.T., 7/7/10, p. 127. Appellant then walked to the back of the car, retrieved a gun, and pointed it at T.H.’s head. N.T., 7/7/10, p. 129. With the gun pointed at her head, T.H. exited the vehicle and followed appellant into a hotel room. N.T., 7/7/10, p. 130.

Appellant ordered T.H. to go in the bathroom, undress, and then lay down on the bed. N.T., 7/7/10, p. 131-32. T.H. complied. N.T., 7/7/10, p. 131-32. Appellant then pulled out a condom, put it on, and placed his penis in T.H.’s vagina. N.T., 7/7/10, p. 132. Appellant proceeded to rape T.H. as she struggled beneath him to get free. N.T., 7/7/10, p. 133. Appellant then took off the condom and attempted to place his penis in T.H.’s mouth, but stopped when she told him she would “bite it.” N.T., 7/7/10, p. 135. After T.H. refused to perform oral sex, appellant ordered to her to get on her hands and knees and continued to rape her from behind. N.T., 7/7/10, p. 136. T.H. told appellant she felt sick, and after the second time she said it, he let her go to the bathroom. N.T., 7/7/10, p. 137. Throughout the encounter, appellant threatened that if T.H. reported anything to the police he would “get his homies to do something” to her. N.T., 7/7/10, p. 134.

Once in the bathroom, T.H. locked the door and threw on her top and bottoms, leaving her undergarments on the floor. N.T., 7/7/10, p. 138. T.H. then climbed on the toilet, resting one foot on the toilet paper holder, opened the bathroom window and forced herself through it. N.T., 7/7/10, p. 138-39. Once outside, T.H. got as far from the hotel as she could and eventually called the police. N.T., 7/7/10, p. 142-43. While waiting for the police to arrive, in the dark comers of the 7-Eleven parking lot, T.H. saw appellant drive by, back and forth on Trenton Avenue, several times. N.T., 7/7/10, p. 143-44. T.H. was transported to the hospital by the police and a rape kit was performed. N.T., 7/7/10, p. 145.

Prior to the first listing for trial, during the middle of March, T.H. received a phone call from appellant’s friend Andre, also known as Grip, and subsequently failed to appear in court. N.T., 7/7/10, p. 147-48.

Pretrial motions were heard before the Honorable Rea B. Boylan on July 1, 2010. Following trial, on August 6, 2010, the district attorney’s office filed a notice of mandatory minimum sentence which applied to the crimes of rape by forcible compulsion, rape by threat of forcible compulsion, attempt - involuntary deviate sexual intercourse and sexual assault. Sentencing was deferred for an assessment to determine whether or not appellant met the criteria to be classified as a Sexually Violent Predator (SVP) pursuant to Pennsylvania’s Registration of Sexual Offenders Act, Megan’s Law III, 42 Pa.C.S. §9791 et seq. N.T., 7/12/10, p. 105. On March 2, 2011 the appellant was classified as an SVP and sentenced to serve not less than 16 nor more than 40 years in a state correctional institution, followed by a period of probation of not less than 5 years.

On April 4, 2011, appellant timely filed a notice of appeal and was thereafter directed to file a concise statement of errors complained of on appeal.

II. STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

On April 26, 2011, in accordance with Pa.R.A.P. 1925(b), petitioner, filed a statement of errors complained of on appeal, set forth verbatim herein:

1. The court committed an error of law in allowing the Commonwealth to exercise a preemptory [sic] strike during voir dire, to remove a female African American jury panelist, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
2. The court committed an error of law in allowing the Commonwealth to introduce evidence at trial concerning the defendant’s alleged and unproven affiliation with the “Bloods” gang.
3. The court committed an error of law in abusing its sentencing discretion by sentencing the defendant to an aggregate term of incarceration of not less than sixteen (16) nor more than forty (40) years.

Statement of errors complained of on appeal, ¶ 2a-2c (Apr. 26, 2011).

III. DISCUSSION

A. Batson Objection

The ultimate goal of the jury selection process is to ensure that the defendant is tried by a fair and impartial jury of his peers. In order to further this goal, two methods have been devised to eliminate unsuitable jurors — the challenge for cause and the peremptory challenge. While the Commonwealth and defense counsel may make an unlimited number of challenges for cause, they are permitted a limited number of peremptoiy challenges. The primary function of the peremptory challenge is to allow parties to strike prospective jurors who they have good reason to believe might be biased but who are not so clearly and obviously partial that they could otherwise be excluded from the panel. Commonwealth v. Jackson, 562 A.2d 338, 342 (Pa. Super. 1989).

In Swain v. Alabama, the United States Supreme court first recognized that the racially motivated use of peremptory challenges could rise to the level of a constitutional violation. In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court reconsidered the Swain decision, and developed a new procedure for evaluating challenges to the prosecution’s use of peremptory strikes. Under Batson, a defendant may rely exclusively on the facts of his own case when proving a constitutional violation. In order to prevail, the defendant must initially establish a prima facie case of discrimination.

Aprima facie case of discrimination has three elements: 1) the defendant’s membership in a cognizable racial group; 2) the prosecutor’s use of peremptory strikes to exclude members of that group; and 3) an inference arising under the totality of the circumstances that the prosecutor used the strikes to exclude venirepersons on account of race. See Commonwealth v. Abu-Jamal, 521 Pa. 188, 197, 555 A.2d 846, 850 (1989). If a defendant makes a prima facie showing of discrimination, the burden then shifts to the prosecution to justify his decision to strike minority jurors. “The prosecutor must therefore articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98 (footnote omitted). The trial judge must then make the ultimate determination of whether the defendant has established purposeful discrimination. Id.

In the present case, the appellant is African-American. During the selection of jury members in this case, after a peremptory strike was exercised by the Commonwealth, appellant’s counsel raised a timely objection:

[Appellant’s Counsel]: Your Honor, I would just indicate that I’ve been passed the jury panel request list, and I note that the prosecution struck juror number 21, who is one of two African American individuals on the panel, and I would just request at this time that the Commonwealth state on the record the reason for that strike.

N.T., 7/7/10, p. 57. At which point the Commonwealth articulated a neutral explanation for the strike of jury number 21:

MS. SIEGLE: We are noting on her questionnaire that she said she would be less likely to believe the testimony of a police officer.
***
MS SIEGLE: If I may add to the record, we did not strike her on the basis of race. We will note also that our victim is African American.

N.T., 7/7/10, p. 57-60. As the present case was one in which a sufficient portion of the testimony presented would be that of law enforcement officers, the Commonwealth effectively articulated a neutral explanation related to the case.

Appellant has failed to articulate any facts that would give rise to the inference that the prosecutor used a strike to exclude a venireperson on account of race. It is clear that a record was established at the time the objection was raised, and the court was given an opportunity to consider the totality of the circumstances presented. As this court properly determined at the time, the appellant failed to establish a prima facie case of exclusion based on race and, therefore, this claim is without merit.

B. Bloods Affiliation

In the course of her testimony, T.H. was allowed to testify regarding statements appellant made about his affiliation with the Bloods gang. Under the Pennsylvania Rules of Evidence, the general rule is that hearsay, an out of court statement offered for the truth of the matter asserted, is not admissible as evidence. Pa.R.E. 802. However, an exception is made for admissions of a party-opponent, the statement of a party, offered against the party that is the party’s own statement. Pa.R.E. 803(25). These statements, known as admissions, become substantive evidence pursuant to this rule. See Commonwealth v. Tervalon, 345 A.2d 671 (Pa. 1975). An admission need not be made to the opposing party in order to be admissible, but it must be relevant to the issues on trial. See Whitman v. Riddell, 471 A.2d 521 (Pa. Super. 1984); ACE American v. Lloyds, 939 A.2d 935 (Pa. Super. 2007), aff’d 971 A.2d 1121 (Pa. 2009).

Party admissions are not subject to hearsay exclusion because:

It is fair in an adversary system that a party’s prior statements be used against him if they are inconsistent with his position at trial. In addition, a party can hardly complain of his inability to cross-examine himself. A party can put himself on the stand and explain or contradict his former statements.

Commonwealth v. Chmiel, 558 Pa. 478, 504, 738 A.2d 406, 420 (1999), cert. denied, 528 U.S. 1131 (2000) (citing Packel & Poulin, Pennsylvania Evidence § 805 (1987)). Thus, in criminal cases, this Pennsylvania Supreme Court has consistently held that a defendant’s out-of-court statements are party admissions and are exceptions to the hearsay rule. Commonwealth v. Paddy, 569 Pa. 47, 76, 800 A.2d 294, 312 n. 11 (2002); Commonwealth v. Laich, 566 Pa. 19, 26, 777 A.2d 1057, 1060 (2001).

The testimony offered at trial in regards to the Bloods were statement’s appellant himself made to T.H.:

Q: Did he mention to you at some point that...he was a member of a gang?
A: Yes.
***
Q: What gang did he tell you he was a member of?
A: Of the Bloods.

N.T., 7/7/10, p. 117. T.H. further testified about her personal observations, and appellant’s explanations:

Q: Did you see anything in the car in the nature of a bandana?
A: Yes.
Q: Where was that?
A: In the back seat.
Q: And what color was it?
A: Red.
Q: What did the defendant tell you about that?
A: That he had to wear that on his hand for 31 days.
Q: As part of ~

N.T., 7/7/10, p. 118-19. At which point appellant’s counsel objected and requested that counsel be allowed to approach the bench. A conversation occurred at sidebar and was recorded:

MS. SIEGLE: I asked her what he told her the reason he had to wear a bandana on his wrist for 30 days, and the anticipated answer would be as part of his membership with the Bloods, which again is not offered for the truth of the matter asserted but for the effect on the listener.
THE COURT: It’s not a matter of hearsay because it would be a statement from him.
MR. PENGLASE: We have a pretrial ruling on this. There’s not to be any admission of evidence that he is actually a gang member.
THE COURT: I thought the ruling was she was allowed to present testimony of his statements about him being involved in a gang because it was essentially part of the whole threatening sort of thing.
***
THE COURT: Isn’t the purpose here to establish her state of mind to show was she was scared of him?
[Appellant’s Counsel]: I’m sure that’s what it is. The problem is this piece about the bandana makes it suggest that he is actually a gang member and - in other words, it’s substantive proof that he’s a Blood, which I thought it was we weren’t going to do.

N.T., 7/7/10, 119-20. The jury was removed from the courtroom and the parties openly presented further argument on the matter. The court, based on the admissions of a party-opponent exception to the hearsay rule, properly determined that the testimony the Commonwealth sought to present was admissible and allowed the following:

BY MS. SIEGLE:
Q: Ms. Elawkins, did the defendant tell you that he had to wear this bandanna on his wrist for 30 days as part of his membership in the Bloods gang?
A: Yes.

N.T., 7/7/10, p. 126. In allowing this testimony the court complied with the Pennsylvania Rules of Evidence.

As the court stated, these statements by appellant were statements that were either intended to be part of a threat, or were perceived to be part of a threat, and as such are relevant to the issues on trial. As the statements admitted were properly admitted under the admissions by a party-opponent exception to the hearsay rule, appellant’s claim is without merit.

C. Sentencing

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed absent manifest abuse of discretion. Commonwealth v. Johnson, 666 A.2d 690, 693 (Pa. Super. 1995). An appellant must establish that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill-will, or arrived at an unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). This discretion is permitted because the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

“An appellate court will not disturb the lower court’s judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). (citation and internal quotations omitted). The sentencing guidelines are advisory, and when justified, a court acts well within its discretion to sentence outside the recommended ranges. Commonwealth v. P.L.S., 894 A.2d 120, 128 (Pa. Super. 2006).

Where an excessive sentence is based on a deviation from the sentencing guidelines, the sentencing court must demonstrate an understanding of the suggested sentencing range. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). The sentencing court may deviate from the guidelines when taking into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the offenses along with their impact on individuals and the community. Id. The sentencing court must state, on the record, the factual basis and specific reasons which compelled him to deviate from the guidelines. Id.

The sentencing guidelines for the charges in this case called for the following sentences in the standard range: Attempt - Involuntary Deviate Sexual Intercourse, the minimum mandatory ten years; rape, 72 to 90 months; Terroristic Threats, 3 to 14 months; and False Imprisonment, RS to six months. These guidelines recommend a sentence with a minimum of approximately sixteen years, the sentence handed down by the court. The presentence investigation recommended a sentence of 20 to 40 years. The court placed the following reasons for its sentence on the record:

THE COURT: Taking into consideration many factors in imposing this sentence, that most significant of which, obviously, are the acts committed upon the victim in this matter, the jury found credible evidence sufficient to establish beyond a reasonable doubt that you raped this woman by force, that you threatened her life, and that you made these threats with the intent to commit these acts and then to prevent her from reporting them to the authorities. These are among the most serious offenses that can be committed upon another human being. It’s difficult to comprehend the fear this woman was forced to undergo during the course of these events. Those acts are the primary reason for the sentence that I will impose.
Obviously in imposing this sentence I take into consideration the sentencing guidelines that are presented to me. I take into consideration the information presented in the presentence [investigation] that discusses many of the items as outlined by [defense counsel], together with his prior criminal conduct, which while one might argue does not contain matters of great offense in the grand scheme of criminal conduct, that’s a matter of argument. And I suspect there is some disagreement as to the weight and seriousness of those acts.
But what is of significance to me and that I take and give great consideration to is the fact that you were provided many opportunities from the time you were 15, up to and including the time this night occurred to change your ways. You were adjudicated delinquent at 15, placed on probation, provided services of some form for a sexually related offense. There were other matters as a youth for which you received various consequences, fines and probation, none of which - none of which cause you to be rehabilitated. Normally, in my experience, that is because the person doesn’t have the desire to be rehabilitated, doesn’t have the drive to do so.
And then you continued throughout your adult life getting caught periodically and convicted, but overtime there were gaps, two, three years here, three, four years there. But you were given fines; they didn’t stop you. You thought you could go ahead and ignore the laws of the State of New Jersey. You were given probation. You didn’t accept that and continued to violate the laws. You were given periods of 35 days or 300 days, and those sort of things did not convince you that there was another path that you could [choose].
And then you engaged in robbery. Three separate counts, I see. Might be three different victims. I’m not sure. But you got what is the equivalent here in Pennsylvania of a five to ten year sentence, served five years in jail, and got out. And while on parole, while on supervision, you committed those acts. That tells me there that the likelihood that you are a person who can be rehabilitated will likely not be met with any level of success.
What I really believe, Mr. Williams, is that you are a person who believes you’re entitled to whatever you want, and you will take whatever steps that are necessary to obtain those. Maybe on this night it was your intent originally to have consensual sex. I don’t know. But maybe when it didn’t become the scenario you envisioned and, in fact, came to one of rejection, you resorted to violence and threats. And you held some woman against her will and raped her.
Those are the factors that are to be considered along with those mitigating factors presented.
On this Bill of Information, as to count five, the charge of criminal attempt to commit the offense of involuntary deviate sexual intercourse by forcible compulsion, for which the Commonwealth has invoked the mandatory, it’s ordered and directed as follows:
You’re to pay the costs of prosecution, undergo imprisonment at a state correctional institution for a period of not less than ten nor more than 20 years.... On count two, that of rape by threat of forcible compulsion, it’s ordered and directed that you pay the costs of prosecution, undergo imprisonment in a state correctional institution for a period of not less than six nor more than 20 years. That sentence is to run consecutive to and not concurrent with the sentence imposed on count five.... On count 17, terroristic threats, it’s ordered and directed that you are placed on a period of probation for five years. That will run consecutive to and not concurrent with the sentences imposed on the two preceding counts.
Lastly, on the offense of false imprisonment, it’s ordered and directed that you pay the costs of prosecution, and you’re placed on probation for a period of two years. That probation will run concurrent with and not consecutive to probation for terroristic threats.

N.T., 3/2/11, p. 69-74. It is important to note that the sentence imposed by the court does not exceed the statutory limits, nor can it be considered manifestly excessive. Appellant was not a first-time offender, and the offenses committed in this case were “among the most serious offenses that can be committed upon another human being.” N.T., 3/2/11, p. 70. Further, no mitigating factors were presented.

The sentence handed down by the court was within the sentencing guidelines, deviating only slightly on the upper end of the sentence imposed on count two. In imposing a sentence, the court showed thorough consideration of the protection of the public, appellant’s rehabilitative needs, and the gravity of the offenses along with their impact on the victim and the community. Therefore, appellant’s claim that the court’s sentence was an abuse of discretion is without merit.

CONCLUSION

For the foregoing reasons we find that the issues that appellant raised in this appeal are without merit.

      . 18 Pa.C.S. §3121 (a)(1).

      . 18 Pa.C.S. §3121 (a)(2).

      . 18 Pa.C.S. §901(a).

      . 18 Pa.C.S. §3124.1.

      . 18 Pa.C.S. §3126(a)(3).

      . 18 Pa.C.S. §2706(a)(l).

      . 18 Pa.C.S. §2903(a).

      . T.H. referred to this position as “doggie style.” N.T., 7/7/10, p. 136.

      . T.H. waited for the police at a 7-Eleven on Trenton Avenue. This 7-Eleven was not the same 7-Eleven they stopped at prior to going to the motel. N.T. 7/7/10, p. 143.

      . As a result, during a pre-trial hearing before the Honorable Rea B. Boylan on July 1,2010, it was ordered that T.H. be picked up at 6pm on the eve of trial and spend the night at a hotel close to the courthouse.

      . The Swain court’s principal concern was to ensure that the prosecution’s jury selection practices would not be unduly restricted. The court emphasized that “the presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury” 380 U.S. at 222. The court further held that this presumption could only be overcome by evidence that the prosecutor systematically excluded members of a particular racial group from juries “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be....” 380 U.S. at 223. This evidentiary standard was extensively criticized since it imposed a virtually insurmountable burden of proof on defendants and prevented courts from remedying nearly all of the equal protection violations which occurred during the voir dire process. See, e.g., Commonwealth v. Martin, 461 Pa. 289, 298-300, 336 A.2d 290, 294-96 (1975) (Nix, J., dissenting).


author: TERESHKO, J,

text:
    Soto v. Pennsylvania State Univ.

      Michael J. McCaney Jr. and Robert Michael McKain, for plaintiff.

      James J. Donohue and Eileen E. Monaghan, for defendant Penn State University.

      Patrick Charles Lamb and Zachary Robert Magid, for defendant Advisory Board of the Schuylkill Campus of the Penn State University.
    August 5, 2011
   TERESHKO, J,

Plaintiff, Brittany Soto, appeals an order dated May 23, 2011, wherein the lower court granted defendants, The Pennsylvania State University and the Advisory Board of the Schuylkill Campus of the Pennsylvania State University’s motion to transfer venue to Schuylkill County.

FACTUAL BACKGROUND

Brittany Soto (hereinafter “plaintiff’), a New York resident, enrolled at Pennsylvania State’s Schuylkill Campus in Schuylkill County, Pennsylvania in the fall of 2008. (Complaint ¶9). Pennsylvania State University (hereinafter “PSU”) and the Advisory Board of the Schuylkill Campus of the Pennsylvania State University (hereinafter “Advisory Board”) are both Pennsylvania corporations. (Complaint ¶¶ 2,3). PSU has its principal place of business at 208 Old Main, University Park, Pennsylvania. (Complaint ¶ 2) while defendant Advisory Board has a principle place of business at 200 University Drive, Schuylkill Haven, PA 17972. When plaintiff enrolled at PSU’s Schuylkill Campus for the fall semester of 2008, she was assigned to live in a dormitory complex owned by the advisory board and operated and maintained by PSU. (Complaint ¶¶8, 10). Specifically, plaintiff was assigned to live with five (5) other students on the third floor of Nittany Apartments II, 211 University Drive, Schuylkill Haven, Pennsylvania. (Complaint ¶¶ 10,11). PSU provided the students a GE Hotpoint electric stove to use throughout the year. (Complaint ¶ 11).

On September 2, 2008, plaintiff was preparing dinner on the stove provided for her by PSU at her apartment. (Complaint ¶ 13). Plaintiff turned on the stove burner and set it to “low” setting. (Complaint ¶ 14). After pouring approximately five (5) millimeters of oil into an eleven (11) inch high pot, plaintiff put the pot on.the stove burner to heat the oil. (Complain^ 14). A short time later, plaintiff removed the pot from the hot burner. (Complaint ¶ 15). When plaintiff grabbed the two handles of the pot, the oil spewed out from the bottom of the pot onto plaintiff, causing injury to plaintiff. (Complaint ¶ 16). Plaintiff suffered bums on her right arm and right leg which required medical attention. (Complaint ¶ 20).

The complaint was filed December 3, 2010. The complaint alleges that the electric stove provided by defendants was dangerous, unsafe, and in a hazardous condition that allowed the stove to become extremely hot despite the low temperature setting. (Complaint ¶12). The complaint further alleges that PSU and the advisory board were negligent in their ownership and maintenance of the stove. (Complaint ¶ 19).

On April 14, 2011, defendant PSU filed a petition to transfer venue on the basis of forum non conveniens. Defendant PSU stated the standard for forum non conveniens and argued that it had been satisfied. (Defendant PSU Petition to Transfer Venue pg. 13).

Plaintiff opposed the Petition to Transfer Venue on May 5, 2011 arguing defendants cannot prove that plaintiff chose Philadelphia County to harass or to impose an unreasonable burden on the defendant. (Memorandum in opposition to transfer of venue, pg. 4). Plaintiff further stated that defendant PSU’s history as a party to suit in Philadelphia Country refutes the claim that it would be an unreasonable burden to litigate in Philadelphia County. (Memorandum in opposition to transfer of venue, pg. 6).

On May 10,2011, defendant PSU filed a memorandum in support of their petition to transfer venue on the basis of forum non conveniens. Defendant PSU made two assertions in their memorandum. First, PSU argued that plaintiff used an inappropriate standard to maintain venue in Philadelphia County. (Defendant PSU’s reply pg. 1). Defendant PSU argued that plaintiff ignored the issue of whether venue in Philadelphia County was oppressive and vexatious to PSU, rather plaintiff limited her argument to why venue in Philadelphia County would be convenient for her. (Defendant PSU’s reply pg. 3-4). Second, defendant PSU affirmatively argued that venue in Philadelphia County is oppressive and vexatious to PSU and provided the necessary support for their position. (Defendant PSU’s reply pg. 4). PSU first established that the incident occurred in Schuylkill County. Second, PSU secured an affidavit from Michael Russell, the electrician who inspected the stove which injured the plaintiff. (PSU’s memorandum in support of transfer pg. 13). Third, PSU also secured an affidavit from Jerry Cresswell, Facilities Manager and Assistant Director of Business Services assigned to Penn State’s Schuylkill campus. (PSU’s memorandum in support of transfer pg. 14). Fourth, two Penn State police officers who responded to plaintiff on the night of the incident also provided depositions. (PSU’s memorandum in support of transfer pg. 14). PSU further indicated that each potential witness lives and works in Schuylkill County and trial in Philadelphia would require each witness to miss time from work to attend trial. (PSU’s memorandum in support of transfer pg. 15).

Defendant advisory board filed their motion in support of PSU’s petition to transfer venue on the basis of forum non conveniens on May 17, 2011. In the memorandum, advisory board joined PSU’s memorandum in support of petition to transfer. (Advisory Board Memorandum in support of petition to transfer p. 3). This court granted defendants’ petition on May 23, 2011. Plaintiff filed her notice of appeal on June 7, 2011, and filed her statement of matters complained of on appeal on June 23, 2011.

The sole issue to be addressed by this court is whether the lower court abused its discretion or committed an error of law in granting defendants’ motion to transfer venue to Schuylkill County where the appropriate supporting evidence shows venue in Philadelphia County is oppressive and vexatious to defendants.

LEGAL ANALYSIS

In forum non conveniens cases, the standard of review is abuse of discretion. Johnson v. Henkels & McCoy, Inc., 707 A.2d 237 (Pa. Super. 1997)(citing Keuther v. Snyder, 444 Pa. Super. 468, 664 A.2d 168 (1995)). Pennsylvania Rules of Civil Procedure 1006(d) allows the trial judge to transfer any action to an appropriate court in any county where the action could originally have been brought. In Pennsylvania, an action against a corporation may be brought in the county where the cause of action arose. Pa.R.C.P. 2179(a)(3). Because the alleged negligence in this case occurred at Nittany Apartments II, 211 University Drive, Schuylkill Haven, Pennsylvania, which is in Schuylkill County, and defendants are Pennsylvania corporations, venue would be proper in Schuylkill County.

The trial court is given considerable discretion in granting change of venue based on forum non conveniens. Johns v. First Union Corp., 777 A.2d 489 (Pa. Super. 2001). The trial court abuses its discretion only when it “misapplies the law or exercises its judgment in a manner that is manifestly unreasonable or the result of bias, prejudice, or ill will.” Id.

The standard for transfer of venue based on forum non conveniens was established in the Pennsylvania Supreme Court case Cheeseman v. Lethal Exterminator, Inc. 549 Pa. 200, 701 A.2d 156 (1997). The court ruled that the public/private balancing test that had previously been applied should be replaced with an oppressive or vexatious test. The court stated, “A petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff’s chosen forum is oppressive or vexatious to the defendant.” Id. at 162. The defendant can also support this burden by showing that “trial in another county would provide easier access to witnesses or other sources of proof, or to provide the ability to conduct a view of premises involved in the dispute.” Wood v. E.I. du Pont de Nemours and Co., 829 A.2d 707, 712 (Pa. Super. 2003). In Wood, a delivery man brought a claim against the defendant when he tripped and fell in a hole while making a delivery at the defendant’s plant in Bradford County, Pa. Id. at 709. The plaintiff, a resident of Delaware, served the defendant in Philadelphia County because the defendant had a registered agent for service of process in Philadelphia County. Id.

The Superior Court stated that transfer was appropriate in the case. First, the court said that an alternative forum was available to the plaintiff. Id. at 712. Next, the court stated that, given the detailed information provided by the defendant, a trial in Philadelphia County would be oppressive. The defendant provided the court with names and addresses of potential witnesses, all of whom resided in Bradford County. Id. The court determined that the distance that potential witnesses had to travel was oppressive to the defendant. Id. at 713. Bradford County is approximately 170 miles from Philadelphia County, and trial in Bradford County would provide greater access to these individuals who may not able to travel to Philadelphia County. Id. The court also cited potential monetary costs incurred by the witnesses as justification for transfer to Bradford County. Id. Additionally, the court stated that a view of the accident site could assist the jury’s deliberations and busing the jurors 170 miles to the accident site would be an unnecessary burden on them, as well as an unneeded cost on the court. Id.

The relevant case law clearly shows that PSU has met its burden to transfer venue based on forum non conveniens. Like Wood, PSU has provided detailed information on the record as to why venue in Philadelphia County would oppressive or vexatious. Defendants in both cases provided a list of named witnesses that are material to the case and how trial in Philadelphia County would be oppressive to each of them. Michael Russell, Penn State-Schuylkill campus’s electrician, is the only electrician at Penn State Schuylkill’s campus. Mr. Russell works on campus more than forty (40) hours per week and if this case remained in Philadelphia County, PSU’s lone electrician for Schuylkill campus would be forced to be absent from work. Jerry Cresswell, Penn State-Schuylkill campus’s facilities manager, supervises the maintenance and repair of all campus housing and buildings at the Schuylkill Campus. Mr. Cresswell also supervises employees in the Business Services Department from time to time. Finally, Mr. Cresswell is the sole supervisor assigned to the Physical Plant Department at the Schuylkill Campus. Given Mr. Cresswell’s professional responsibilities, requiring him to be absent from his work at PSU for multiple days to attend a trial in Philadelphia County would create a hardship for Schuylkill campus students, staff, and faculty. Finally, requiring two Penn State officers who reported to the scene — Amy Newton and Dolores Maler — to travel more than 100 miles from Schuylkill County to Philadelphia County is also oppressive to PSU. Ms. Newton and Ms. Maler are responsible for the safety and security of Penn State-Schuylkill students.

Moreover, Pennsylvania courts have routinely permitted petitions for transfer of venue based on forum non conveniens where similar facts exist. Mateu v. Stout, 2003 Pa. Super. 93, 819 A.2d 563 (transfer from Philadelphia County to Delaware County is appropriate when accident, witnesses, and medical treatment occurred in Delaware County); Borger v. Murphy, 2002 Pa. Super. 91, 797 A.2d 309 (court transferred action from Philadelphia County to Lehigh County because defendant took depositions that stated his witnesses resided and worked in Lehigh County and trial in Philadelphia County would burden defendant’s business).

Plaintiff, in opposition, claims defendants have not established that Philadelphia County would be oppressive or vexatious. Plaintiff first cites to prior court appearances by PSU in Philadelphia County. However, as PSU stated in its Reply in Further Support of PSU’s Petition for Transfer, there is no legal support for the proposition that court appearances demonstrate that a particular forum is convenient for a party. Rather, it may properly support the claim of appropriate venue, which is not at issue here. Further, as PSU also identified in their reply, a number of cases in which PSU was a defendant were transferred to different counties. (PSU Reply to Motion to Transfer pg. 3).

Next, plaintiff argues that she will call a number of witnesses during trial who are flying into Philadelphia International Airport to testify on her behalf. This is irrelevant to the issue of forum non conveniens because courts do not consider plaintiff witnesses when determining the oppressive nature of a chosen forum. See Raymond v. Park Terrace Apartments, Inc., 2005 Pa. Super. 298, 882 A.2d 518 (“The location and convenience of the plaintiff’s witnesses is generally immaterial to the central question of whether the chosen forum is oppressive to the defendant.”). While plaintiff expressly denies that Philadelphia County is an inconvenient forum, plaintiff fails to materially contradict defendant’s proof that it is an inconvenient forum. Plaintiff’s sole reason for keeping the case at hand in Philadelphia County is due to the fact that she plans to call witnesses from the area which are convenient to her. But, as Raymond states, location of plaintiff’s witnesses is irrelevant when considering a motion to transfer based on forum non conveniens.

CONCLUSION

For the foregoing reasons, this court believes that the motion for transfer of venue to Schuylkill County was properly granted, and respectfully requests that the decision be affirmed.

      . Because defendant advisory board has joined PSU’s petition for transfer of venue based on forum non conveniens, the foregoing analysis also applies to advisory board.