author: CHESLOCK, J,

text:
    Commonwealth v. Ford

      Robert Sauerman, district attorney s office, for Commonwealth.

      Jason Vichinsky, public defender’s office, for defendant.
    August 8, 2005
   CHESLOCK, J,

On March 27,2004, Brooke Garman (victim) accused defendant Tyreis Ford of raping her at a nightclub known as “The Hoop” located on Main Street, Stroudsburg, Monroe County, Pennsylvania. On May 17, 2004, the Commonwealth filed its criminal information charging defendant as follows: rape by forcible compulsion, pursuant to 18 Pa.C.S. §3121(a)(1); rape by threat of forcible compulsion, pursuant to 18 Pa.C.S. §3121(a)(2); sexual assault, pursuant to 18 Pa.C.S. §3124(1); aggravated indecent assault without consent, pursuant to 18 Pa.C.S. §3125(a)(1); aggravated indecent assault by forcible compulsion, pursuant to 18 Pa.C.S. §3125(a)(2); indecent assault without consent of other, pursuant to 18Pa.C.S. §3126(a)(l); indecent assault mental disease/defect, pursuant to 18 Pa.C.S. §3126(a)(2); involuntary deviate sexual intercourse by forcible compulsion, pursuant to 18 Pa.C.S. §3123(a)(1); involuntary deviate sexual intercourse by threat of forcible compulsion, pursuant to 18 Pa.C.S. §3123(a)(2); and public drunkenness, pursuant to 18 Pa.C.S. §5505. On January 11, 2005, defendant was found guilty, by a jury of his peers, of all charges except rape by forcible compulsion and rape by threat of forcible compulsion. On April 13,2005, defendant was sentenced to a minimum period of 72 months to a maximum of 144 months in a state correctional facility for his conviction of involuntary deviate sexual intercourse by forcible compulsion. The sentence for the remaining charges (Counts 3,4,5,6,7, and 9) were merged into his conviction for involuntary deviate sexual intercourse by forcible compulsion and no further sentence was imposed. In regard to his conviction for public drunkenness, the defendant was ordered to pay a fine in the amount of $300. On April 25,2005, defendant filed post-trial motions in the nature of a motion for new trial. On May 23, 2005, a hearing was held on defendant’s motion. On June 8, 2005, defendant filed his brief in support of post-trial motions. The Commonwealth has not filed a brief in opposition to the defendant’s motion. We are now prepared to dispose of defendant’s motion.

In his brief, defendant raises the following issues to be decided by the court:

(1) The trial court erred in admitting into evidence a telephone recording of defendant while he was in prison, which recording was used to impeach defendant’s testimony;
(2) The trial court erred in admitting the wrongfully obtained telephone recordings into evidence;
(3) The trial court permitted the prosecution to improperly impeach defendant’s testimony on collateral and immaterial matter;
(4) The verdict was against the weight of the evidence; and
(5) The evidence was insufficient to sustain the conviction.

We will first address the issue of whether it was error for the Commonwealth to impeach defendant’s testimony with a telephone recording of defendant while he was in prison, which recording was not delivered to defendant during discovery. Defendant claims that the Commonwealth violated the Rules of Discovery such that a new trial is warranted. The provisions for disclosure of evidence by the Commonwealth are set out in Pa.R.Crim.P. 573, which provides in pertinent part:

“(1) Mandatory:
“In all court cases, on request by the defendant, and subj ect to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
“(a) Any evidence favorable to the accused which is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth; ...
“(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; and
“(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.
“(2) Discretionary with the court:
“In all court cases, except as otherwise provided in Rule 230 (disclosure of testimony before investigating grand jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:...
“(iv) any other evidence specifically identified by the defendant, provided that the defendant can establish that its disclosure would be in the interests of justice.” Pa.R.Crim.P. 573(B)(1)(a), (f), (g); (2)(iv).

As set forth above, it is mandatory that the Commonwealth disclose evidence which is material to either the guilt or to punishment, as well as the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.

On May 17, 2004, counsel for defendant wrote to the prosecution requesting the disclosure of evidence pursuant to Pa.R.Crim.P. 573. When the requested information was not received, defendant filed a motion to compel disclosure of a complete copy of the SAFE nurse report and a request for a bill of particulars on June 9, 2004. An order was entered on June 28,2004, requiring the Commonwealth to file a bill of particulars within one week and afford defense counsel an opportunity to inspect photographs and receive a copy of the result of the rape kit and all other relevant evidence, upon receipt thereof. On September 29, 2004, defendant filed a motion to compel inspection of the clothing worn by victim on the night in question. On October 4, 2004, by agreement of the Commonwealth and the defense, an order was entered directing that the clothing be made available to the defense within seven days. Thereafter, on October 8,2004, defendant filed a motion to compel discovery, requesting the Commonwealth to provide the laboratory report regarding the rape kit and DNA tests. On October 12,2004, an order was entered requiring the Commonwealth to provide the laboratory report regarding the rape kit and DNA tests within one business day.

Unknown to the defense, the Commonwealth requested and received an order, dated June 25, 2004, to obtain recordings of all telephone calls made by and to the defendant from the date of his incarceration, except for telephone calls to defendant’s attorney. The order, dated June 25,2004, was sealed and not disclosed to defendant until January 11,2005, during trial. (Stipulations filed May 23, 2005.) After the defendant testified at trial and the defense rested, the Commonwealth then produced a recording of a telephone call between the defendant and his cousin. Defendant objected to the recording being admitted into evidence due to the failure of the Commonwealth to produce the recording through discovery. The Commonwealth argued that the recording was for rebuttal purposes, i.e., to impeach the testimony of defendant. Over defendant’s objection, the recording was introduced into evidence and used to impeach defendant’s testimony.

In support of his position, defendant cites the case of Commonwealth v. Ulen, 539 Pa. 51, 650 A.2d 416 (1994). In Ulen, the appellant was convicted, after a jury trial, of criminal attempt to deliver a controlled substance and unlawful possession of a controlled substance. On appeal, the appellant argued that the prosecution wrongfully withheld evidence which enhanced the credibility of another witness, whose credibility was questionable. The witness was in jail with appellant’s companion, who was also charged with attempt to deliver a controlled substance and unlawful possession of a controlled substance. After the appellant testified and the defense rested, the witness testified that the appellant met with her upon her release from prison and promised to “take care of her” in exchange for stating that, while in jail, appellant’s companion confessed that the drugs were hers and that appellant only supplied the syringe. A tape recording of the conversation was made with the witness’ consent but appellant was not aware of the tape until the prosecution offered it as rebuttal evidence. The trial court permitted the tape recording to be played to the jury as “rebuttal” evidence over the appellant’s objection. The Supreme Court held that a new trial was warranted because the Commonwealth failed to disclose the tape recordings prior to trial. The Ulen court stated that “[t]he purpose of Rule 305 is to prevent trial by ambush which, of course, leads to a denial of due process.” Id. at 59, 650 A.2d at 419.

In the case of Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242 (1994), the Pennsylvania Supreme Court reviewed a case in which the appellant was convicted of first-degree murder and sentenced to death. In Green, the facts elicited at trial indicate that the appellant entered the apartment of Richard Bower, a police officer in the City of Harrisburg, and took a set of car keys. After driving the car to a co-conspirators’ house, the appellant and co-conspirator returned to Bower’s apartment allegedly to commit burglary. Somehow the appellant and co-conspirator forced Bower into the trunk of the car, either before or after they fatally shot him in the head. The two then drove to the Borough of Northampton and removed Bower’s body from the trunk. The appellant and co-conspirator drove to Virginia and abandoned the car. After stealing a van, the two drove to Florida where they were arrested. On appeal, appellant contended that the Commonwealth failed to disclose certain exculpatory evidence, i.e., a statement made by a witness that the co-conspirator stated that she shot and killed Bower. Upon determining that the statement was Brady evidence which should have been disclosed to the appellant, the Green court stated that “[h]ad the defense been aware of Moser’s statements, it may also have altered its trial strategy, especially in regard to appellant’s decision not to testify since Moser’s statements were consistent with appellant’s own statements to the police.” Id. at 606, 640 A.2d at 1245-46. Consequently, “the Commonwealth should exercise the utmost good faith to disclose to defendant all material evidence in its possession when faced with a mandatory discovery request.” Commonwealth v. Schwartz, 419 Pa. Super. 251, 267, 615 A.2d 350, 358 (1992), appeal denied, 535 Pa. 617, 629 A.2d 1379 (1993) quoting Commonwealth v. Thiel, 323 Pa. Super. 92, 470 A.2d 145 (1983).

Instantly, the defendant testified at trial and after the defense rested, the Commonwealth disclosed the recording. The Pennsylvania Supreme Court has held that, “[t]he purpose of our discovery rules is to permit the parties in criminal matters to be prepared for trial; trial by ambush is contrary to the spirit and letter of those rules and will not be condoned.” Commonwealth v. Appel, 547 Pa. 171, 204, 689 A.2d 891, 907 (1997). The case against the defendant hinged upon the credibility of the witnesses. Defendant claimed that he had consensual sex with the victim, however, the victim testified that she was raped. Defendant’s decision to testify was based upon the evidence that had been disclosed prior to trial. Had the defendant been aware of the recorded conversation, he may not have testified. Disclosure of the recording prior to trial may have altered defendant’s trial strategy, especially in regard to defendant’s decision to testify at trial. The fact that the recording was used as rebuttal evidence to impeach defendant’s testimony does not relieve the Commonwealth from its obligation to disclose the recording during the discovery process. The Pennsylvania Supreme Court has held that to be entitled to a new trial for failure to disclose evidence which affects a witness’ credibility, a demonstration that the reliability of the witness was determinative of guilt or innocence must be shown by the defendant. Commonwealth v. Johnson, 556 Pa. 216, 227, 727 A.2d 1089, 1094 (1999). In this case, the reliability of the defendant’s testimony was crucial to his defense and his entire trial strategy.

Further, we believe that the continuing duty to disclose is clearly spelled out in Pa.R.Crim.P 573(D). The defendant’s May 17, 2004 request for disclosure of evidence was sufficient to require the Commonwealth to disclose the recordings obtained as a result of the June 25,2004 order. Moreover, we find that the recordings of defendant’s conversations with his cousin constitute electronic surveillance as set forth in Pa. R.Crim.P. 573(B)(1)(g). Hence, in the interests of justice and fundamental fairness to the defendant, we will grant defendant a new trial.

In light of our decision to grant defendant a new trial, the other issues raised by defendant in his post-trial motions are moot. Accordingly, we enter the following order:

ORDER

And now, August 8, 2005, upon consideration of defendant’s post-trial motions, it is hereby ordered that defendant Tyreis Ford’s motion for a new trial is granted.

      . Pa.R.Crim.P. 305 is now Pa.R.Crim.P. 573.


source: Caselaw Access Project

author: ABRAMSON, J,

license: Public Domain

text:
    Burton v. Bojazi

      Gavin P. Lentz, for plaintiff.

      James Lammendola, for defendants.
    June 17, 2005
   ABRAMSON, J,

Before the court are defendants’ preliminary objections to plaintiff’s complaint. Plaintiff, Mr. Burton, a Pennsylvania resident and shareholder of J&J Painting & Decorating Inc., filed a complaint against Mrs. Bojazi, also a resident of Pennsylvania and shareholder of J&J, and Mr. Boj azi, a resident of Pennsylvania and an employee of J&J, for fraud, civil conspiracy, breach of contract and breach of fiduciary duty. The following allegations are set forth in plaintiff’s complaint:

J&J Painting and Decorating Inc. is a small, closely held corporation formed in 2003 to provide various types of painting services. Plaintiff alleges that he became a 35 percent shareholder in J&J, upon its formation, by oral contract between plaintiff and defendants. Defendants allegedly agreed that plaintiff would receive 35 percent of all profits earned by the corporation. Additionally, plaintiff secured a credit line and allegedly agreed with defendants that the credit line would be available for company expenses. Plaintiff alleges in the complaint that the defendants misused corporate funds for personal expenses and failed to pay plaintiff the promised 35 percent of profits earned by the corporation.

In the present motion, defendants have raised four preliminary objections to plaintiff’s complaint. The court will address each in turn.

I. Defendants ’Preliminary Objection in the Nature of a Motion To Dismiss Count I of the Complaint

Defendants object to plaintiff’s Count I of the complaint for fraud, citing legal insufficiency of the pleadings. Defendants contend that the complaint does not assert the six elements of fraud and does not include factual specificity as required by Pennsylvania law. Specifically, the complaint does not allege a misrepresentation that the plaintiff could have justifiably relied upon and the complaint does not contain any allegation that the representations were made falsely with knowledge of their falsity or recklessness as to their truth or falsity with the intent of misleading others. Defendants further contend that the pleading fails to describe with the particularity required by Pennsylvania law the precise conduct of each defendant, the times, the places and the dates of the alleged fraudulent misrepresentations.

This court believes that the plaintiff has not set forth sufficient facts to meet the requirements as described in the Pennsylvania Rules of Civil Procedure. Allegations of fraud, including the six elements of the tort, must be pled with particularity. Pa.R.C.P. 1019(b). See also, Pobad Assoc. v. Albert Einstein Healthcare Network, June term 2001, no. 2885, control no. 120373, Commerce Program, Herron, J. (February 2002) (“[Pjlaintiff must set forth the exact statements or actions plaintiff alleges constitute the fraudulent misrepresentations.”) (citing McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 143, 604 A.2d 1053, 1060 (1992)). To establish a claim for fraudulent misrepresentation, the plaintiff must allege the following elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Sigmond v. Phillips & Brooke P. C., June term 2002, no. 3098, control no. 71044, Sheppard, J. (December 2002). Here, the plaintiff alleges that the defendants took actions to conspire to defraud the plaintiff; however, the plaintiff fails to include enough specificity to satisfy the particularity requirement of pleading fraud. The pleading alleges generally some actions taken by the defendants but fails to set forth any specific statements or misrepresentations made by the defendants to the plaintiff.

The court sustains this objection to Count I.

II. Defendants’ Preliminary Objection in the Nature of a Motion To Strike Count II of the Complaint

Defendants object to plaintiff’s Count II of the complaint for civil conspiracy, citing legal insufficiency of the pleadings. Specifically, defendants challenge the allegations that the defendants conspired to misappropriate funds and to defraud the plaintiff because the allegations lack specificity as to the times, places and dates. Further, the defendants contend that the plaintiff failed to differentiate the conduct of the two defendants with respect to the conspiracy allegation.

To state a cause of action for conspiracy, plaintiff must allege (1) a combination of two or more persons acting with a common purpose to do an unlawful act by unlawful means or for an unlawful purpose, (2) an overt act done in furtherance of the common purpose, and (3) actual legal damage. V-Tech Services v. Murray Motors Co., February term 2001, no. 1291, control no. 080055, Commerce Program, Herron, J. (October 2001) (citing Baker v. Rangos, 229 Pa. Super. 333, 351, 324 A.2d 498, 506 (1974)). Intent is also an element of conspiracy; however, this element may be pled generally. V-Tech Services v. Murray Motors Co., February term 2001, no. 1291, control no. 080055, Commerce Program, Herron, J. (October 2001). Finally, the plaintiff is not required to plead specifically the time, place or date for a conspiratorial meeting. Babiarz v. Bell Atlantic-Pennsylvania Inc., August term 2000, no. 1863, control nos. 010253, 021563, Commerce Program, Herron, J. (July 2001).

Here, the plaintiff pleads that the defendants conspired to use company funds for personal use and over extended credit lines held in the plaintiff’s name. These actions, the plaintiff alleges in the complaint, Harmed the plaintiff’s credit line and caused the plaintiff other financial harm. The plaintiff sufficiently pled intent by alleging that the defendants knew their use of the company’s funds would harm the plaintiff. Finally, there is no requirement that the plaintiff plead with specificity the times, dates or places where the two defendants conspired to cause actual legal harm to the plaintiff. The plaintiff included facts going to all required elements of civil conspiracy required for a sufficient pleading.

The court overrules this objection to Count II.

III. Defendants ’Preliminary Objection in the Nature of a Motion To Strike Count III of the Complaint

Defendants object to plaintiff’s Count III of the complaint for breach of contract, citing failure to state a cause of action. The defendants’ main objection is to the existence of the alleged oral contract between the plaintiff and the defendants. The defendants contend that any alleged agreement made by the defendants would be an ultra vires agreement outside the scope of the authority held by individual members of the corporation. According to defendants, the corporate entity could only make a contract with the plaintiff. Defendants further contend that the plaintiff failed to state a cause of action for breach of contract because no profits could have been paid to the plaintiff since the corporation, J&J, has never earned a profit since its inception in 2003.

To establish a cause of action for breach of contract, a plaintiff must allege “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Corestates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). Here, the plaintiff alleged the existence of an oral contract between the parties. The alleged agreement was that the defendants, as a shareholder and an employee of the corporation, would pay the plaintiff 35 percent of profits garnered by the business. Additionally, the plaintiff alleges that the defendants agreed that they would not use the credit cards issued in plaintiff’s name for personal expenses. The plaintiff further alleges a breach of that contract in that the defendants failed to pay the plaintiff his share of the profits and defendants used the credit cards for personal expenses. Finally, the plaintiff alleges that, as a result of the defendants’ actions, the plaintiff suffered financial damages. Therefore, the plaintiff pled a cause of action for breach of contract with sufficient specificity by pleading all required elements.

The court overrules this objection to Count III.

IV. Defendants’ Preliminary Objection in the Nature of a Motion To Strike Count IV of the Complaint

Defendants object to plaintiff’s Count IV of the complaint for breach of fiduciary duty, citing legal insufficiency of the pleadings. Specifically, the defendants contend that the complaint does not allege times, places and dates to support the allegation. In addition, defendants object to the complaint because it does not differentiate the alleged conduct by the two distinct defendants. The arguments offered by the defendants do not go to the legal sufficiency of the pleading of breach of fiduciary duty; however, the court finds that the complaint does not satisfy the fact pleading requirements of Pennsylvania.

A fiduciary duty exists where there is a confidential relationship between parties. Specifically, a confidential relationship exists where the parties do not deal on equal terms, “but, on the one side there is an overmastering influence, or on the other, weakness, dependence, or trust, justifiably reposed.” E.I. Fan Co. v. Angelo Lighting Co., April term 2003, no. 0327, control no. 061530, Commerce Program, Sheppard, J. (August 2003) (citing Basile v. H&R Block Inc., 777 A.2d 95, 101 (Pa. Super. 2001)). A confidential relationship, along with the fiduciary duty, may arise where the parties have relationships such as: guardian and ward, attorney and client, principal and agent, or where the facts and circumstances so indicate and are apparent on the record. Id. Here, the plaintiff does not state facts sufficient to show that a fiduciary relationship did indeed exist. The plaintiff points only to the relationship between the parties as majority/minority shareholders of J& J. A minority shareholder holding 35 percent of the shares does not lead the court to believe that the defendants, as majority shareholders, hold an “overmastering influence” over the plaintiff. The two parties here are partners in their business. The complaint must show “weakness, dependence, inferiority, or a disparity in the parties’ position giving rise to an abuse of power” before this court will recognize a fiduciary duty and the breach thereof. MRED General Partner v. Tower Economics Co., November term 2004, no. 2531, control no. 021380, Commerce Program, Abramson, J. (April 2005).

The court sustains this objection to Count IV.

CONCLUSION

For all the foregoing reasons, defendants’ preliminary objections to plaintiff’s complaint are sustained in part and overruled in part.

ORDER

And now, June 17, 2005, it is hereby ordered and decreed that defendants’ preliminary objections to plaintiff’s complaint are sustained in part and overruled in part.

Defendants’ preliminary objection in the nature of a motion to dismiss Counts I, II, III, and IV of the complaint is sustained in part and overruled in part. Counts II and III may go forward; Counts I and IV of the complaint are dismissed with a right to plead with more specificity within 20 days from the date of this order.


author: CARRAFIELLO, J,

text:
    McElwee v. SEPTA

      Francis J. Moran and Peter Galante, for plaintiff.

      Peter F. Kelsen, Francis X Crowley and Michael E. Adler, for defendant (until February 15, 2005).

      Drew K. Kapur, Michael Sklaroff and Elizabeth Hienold, for defendant (after February 15, 2005).
    April 5, 2005
   CARRAFIELLO, J,

Petitioner below, Thomas A. McEIwee & Son Inc. and John McEIwee (together appellants) appeal from the February 17, 2005 order of the court of common pleas, whereby appellee SEPTA’s preliminary objections were sustained and judgment was entered against appellants.

FACTUAL AND PROCEDURAL HISTORY

In 1998, SEPTA provided notice to areas of West Philadelphia regarding impending construction to extend the “El” train service route. SEPTA set up a system for handling complaints and concerns from the public, and held community meetings for the affected areas. Appellants’ printing business at 6206-10 Market Street was located in an area earmarked for construction, which began in January of 2000.

Thomas McEIwee has worked in the family business since 1948 and moved it to the Market Street location in 1954. In December 1998, his son, John McEIwee, took over the business and Thomas stayed on as a part-time employee along with two other employees. Thomas and John testified that 20 percent of their business was walk-in customers from the neighborhood; however, they were a union shop and much of their business was union-driven. (Thomas McEIwee dep. at 99.) Appellants did not present any documentary evidence to support this estimate of walk-in business.

After construction began on their street, appellants assert the workers often impeded ingress and egress to their driveway by parking there during the construction. For a temporaiy period in 2000, appellants could not use their driveway to receive deliveries; instead they used a hand truck to move products from the deliveiy truck to the building. (John McElwee dep. at 18.) The block where the business was located was closed off to vehicle traffic entirely during office hours starting on September 22, 2002, lasting through May 2003, and occasionally appellants had to park a block or two from the business. Appellants had unobstructed access to the driveway early in the morning and late at night. (John McElwee dep. at 14.)

Although appellants claim “no supplier could deliver goods to plaintiffs’ business,” the record belies this assertion. Appellant John McElwee testified that, at most, there was one example of a supplier who may have come out to the business but could not make the delivery; the supplier returned the next day. (John McElwee dep. at 79.) Appellants claim they lost customers because they could not meet deadlines due to the difficulty in getting supplies; however, there was never a time when a delivery could not be made. (John McElwee dep. at 78-79; DeFlavia dep. at 22.)

Appellants designated one employee to call SEPTA and complain, which, it is alleged, he did dozens of times. Appellants, however, never filed a formal, written complaint or attended any of the community programs set up by SEPTA to deal with business-related complaints. Appellants claim they did speak with Michael Tucker, a business mitigation and development consultant for SEPTA, but their complaints were ignored. Appellants never called the police department or the Philadelphia Parking Authority about the illegally parked cars and trucks that were blocking their driveway. (Thomas McElwee dep. at 79-80.)

Appellants began to turn down jobs in April and May of 2003, and closed the business on May 1, 2003, with $20,000 in unpaid bills. In September 2003, appellants petitioned for a board of view, claiming a de facto taking of their property. This court initially granted the petition; however, after reconsideration, a hearing and submission of findings of fact and conclusions of law by the parties, SEPTA’s preliminary objections were sustained and this timely appeal followed.

LEGAL DISCUSSION

The standard of review of a trial court’s sustaining preliminary objections is limited to a determination of whether the court abused its discretion or committed an error of law. Pidstawski v. South Whitehall Township, 33 Pa. Commw. 162, 380 A.2d 1322 (1977). The trial court is the fact-finder, and its findings will not be disturbed if supported by substantial evidence. McGajfic v. Redevelopment Authority of the City of New Castle, 120 Pa. Commw. 199, 548 A.2d 653 (1988).

A de facto taking occurs when “an entity clothed with the eminent domain power substantially deprives an owner of the use and enj oyment of his property.” Conroy-Prugh Glass Co. v. Commonwealth, 456 Pa. 384, 321 A.2d 598 (1974). Aparty alleging a de facto taking bears a heavy burden of proving that “exceptional circumstances exist which substantially deprive [them] of the use of their property, and that the deprivation is the direct and necessary consequence of the actions of the entity having the power of eminent domain.” Waldron Street Book Co. v. City of Pittsburgh, 111 A.2d 111, 112 (Pa. Commw. 2001). There is no bright line test to determine when government action shall be deemed a de facto taking; instead, each case before the courts must be examined and decided on its own facts. Id.

In their 1925(b) concise statement of matters complained of on appeal, appellants allege their right to reasonable ingress and egress was denied. However, appellants were always able to access their property and, even if they had been temporarily deprived of access during the construction period, “the Eminent Domain Code does not permit any award of damages for the temporary loss of access during construction.” Berk v. PennDOT, 168 Pa. Commw. 560, 566, 651 A.2d 195, 198 (1994), citing Truck Terminal Realty Co. v. PennDOT, 486 Pa. 16, 403 A.2d 986 (1979).

Appellant also alleges that “if a defendant’s construction activities force the closure of plaintiff business and the realty owner’s use and enjoyment of his realty, this constitutes a de facto condemnation.” Appellants cite to McCracken v. City of Philadelphia, 69 Pa. Commw. 492, 451 A.2d 1046 (1982), to support this conclusion. The facts in McCracken, however, are significantly different than those of the appellants. In McCracken, the business affected by construction was a bar/restaurant that relied exclusively on neighborhood walk-in customers, whereas appellants testified that only 20 percent of their business was walk-in.

In addition, the McCracken business was cut off entirely from the sidewalk for an extended period of time, both front doors were continually blocked by construcr tion materials, heavy equipment was constantly present, the area street lights were removed and the building suffered structural damage as a result of the construction. The Commonwealth Court found these incidences, taken in toto, and considering the transient nature of the business, amounted to exceptional circumstances which substantially deprived the owner of the use and enjoyment of his property. In contrast, appellants never lost access to the building — the owners and employees were always able to enter and exit their building, the property did not suffer structural damage and the business did not rely on walk-in customers.

Appellants have not met their heavy burden of showing that the decline and closing of their business was caused by SEPTA’s actions. Appellants presented evidence that their business slowed down during the time of the construction; however, they failed to demonstrate that the closing of the business was a direct and necessary consequence of the construction. Although access may have been temporarily limited, the circumstances are not exceptional, and SEPTA did not unreasonably interfere with appellants’ access to the property. This court found SEPTA did not substantially deprive appellants of their beneficial use and enjoyment of the property sufficient to establish a de facto taking.

For the foregoing reasons, this court’s order of February 17, 2005, sustaining SEPTA’s preliminary objections, should be affirmed.


author: STEINBERG, J,

text:
    Commonwealth v. Davis

      Joseph Stauffer, deputy district attorney, for Commonwealth.

      Tierre Davis, pro se.
    March 23, 2005
   STEINBERG, J,

On Februaiy 1, 2005, the petitioner, Tierre Davis, filed a “Motion for post-conviction DNA testing” pursuant to 42 Pa.C.S. §9543.1. His motion, which appears to be partially preprinted and partially written in hand, alleges that blood, and a “hair strand” were never tested. He also alleges that a “rape kit” was “ceased” [sic] as evidence and tested. Finally, it is alleged that the 3-year-old victim, T.D., could not identify the perpetrator.

On March 25, 1999, the petitioner was found guilty after a trial by jury of physically and sexually abusing his biological daughter, T.D. Her injuries were so extensive that one of the medical experts explained that “people, kids, who fell off of three story buildings before ... [did] not look as bad as she did. She literally had bruises just about everywhere.” On May 4, 1999, this court sentenced the petitioner to a total of 21 to 42 years imprisonment for the crimes of aggravated assault, simple assault, recklessly endangering another person, endangering welfare of children, involuntary deviate sexual intercourse, and aggravated indecent assault.

The petitioner appealed to the Superior Court and the judgment of sentence was affirmed. See Commonwealth v. Davis, no. 3269 EDA 1999 (Pa. Super. January 26, 2001). The Superior Court in its opinion explained that the “Allentown Police arrested and charged Davis after EMS rushed his unconscious 3-year-old daughter, T.D., to the hospital where, upon examination, doctors found evidence of extensive physical and sexual abuse. Davis was charged with aggravated assault, simple assault, recklessly endangering another person, and endangering welfare of children based on information from T.D.’s mother and an admittance by Davis that he had struck his daughter with a belt and his hand on the day before T.D.’s hospitalization. Mother also informed the police that Davis had hit T.D. approximately 15 times with a belt and numerous other times with his hand during the prior week. Subsequently, the charges of involuntary deviate sexual intercourse and aggravated indecent assault were added based on information supplied through an affidavit by T.D.’s doctor. T.D.’s doctor indicated that lacerations in T.D.’s vaginal and anal area were consistent with an attempted penetration of those areas with an unknown object and occurred at the same time that the other physical injuries occurred.” Id. at 2.

A review of the testimony also revealed that an examination of T.D.’s genital area revealed an ulcer between the vagina and the rectum, redness and swelling of the hymeneal ring, recent hemorrhaging underneath the outer lining of the vagina, small linear tears inside the vagina, some bruising around the rectum, and cuts and ulcers around the anus. Both Commonwealth experts rendered opinions concerning blunt trauma as the cause of the injuries to the child’s vagina and anus. Dr. Randolph Cordle, although unable to tell the exact size or shape of the object that penetrated the vagina, testified that, “it [was] something larger than a 3-year-old’s finger and something had to occur with some force.” As for the object which caused injuries to the child’s anus, he concluded, “I can’t tell you what object, how big the obj ect was, but something definitely went through the anus and caused the bruising.”

Other testimony, including the child’s mother, described not only the petitioner’s access to the child, but how the disciplining progressed from spankings to belt whippings, and how they became more severe. Mother described the petitioner’s attacks on the child that occurred on November 29, 1997, the day before the child was taken to the hospital. Finally, the petitioner’s claim that the 3-year-old child could not identify him as her attacker is contradicted by the trial testimony. Deborah Arnold, the child’s foster mother, testified that the child told her that “Daddy did this to me,” “Daddy put his pee pee in [my] pee pee and mouth,” “Daddy put his pee pee in [my] sue sue,” and “Daddy put his hand in [my] sue sue.”

Following the denial of the petitioner’s direct appeal, he filed claims under the Post Conviction Relief Act, 42 Pa.C.S. §§9541-9579, which resulted in the Superior Court quashing the appeal. See Commonwealth v. Davis, no. 3084 EDA 2002 (Pa. Super. September 10,2003). It is now, more than seven years after his crimes and almost 17 months after his last appeal was dismissed, that the petitioner is seeking DNA testing.

Following receipt of the petitioner’s motion, this court, pursuant to section 9543.1(b)(1) notified the Commonwealth of it, and permitted them 30 days to respond. On March 18, 2005, the Commonwealth filed a “Notice of Commonwealth’s opposition to DNA testing.”

The “Post Conviction DNA Testing” statute became effective on September 8,2002, but the petitioner, without explanation, waited over 28 months to file his petition. In fact, more than one year has elapsed since the petitioner’s PCRA petition was dismissed by the Superior Court. As a result, the petitioner’s motion should be time barred. See Commonwealth v. Weeks, 831 A.2d 1194 (Pa. Super. 2003).

The petitioner has also failed to present a prima facie case justifying DNA testing. 42 Pa.C.S. §9543.1(c)(3). To do so, the statute requires the petitioner to demonstrate the following:

“(3) present aprima facie case demonstrating that the:
“(i) identity of or the participation in the crime by the perpetrator was at issue in the proceedings that resulted in the applicant’s conviction and sentencing; and
“(ii) DNA testing of the specific evidence, assuming exculpatory results, would establish:
“(A) the applicant’s actual innocence of the offense for which the applicant was convicted;
“(B) in a capital case, the applicant’s actual innocence of the charged or uncharged conduct constituting an aggravating circumstance under section 9711 (d) if the applicant’s exoneration of the conduct would result in vacating a sentence of death; or
“(C) in a capital case, a mitigating circumstance under section 9711(e)(7) under the circumstances set forth in subsection (c)(l)(iv).”

The identity of the perpetrator of the physical assaults was not contested during the trial. The defense was aimed primarily at the sexual allegations. During a hearing on the petitioner’s ineffective assistance of counsel claims, trial counsel testified that if he could have persuaded the petitioner to testify, the petitioner would have admitted striking the child, but not sexually assaulting her.

However, DNA testing could neither yield exculpatory results nor establish “actual innocence.” The analysis of the physical evidence did not uncover any presence of acid phosphatase (an enzyme found in semen) or spermatozoa. A copy of the lab report prepared by the Pennsylvania State Police analyzing the Sirchie Sex Crimes Kit containing the items collected from the child is attached to this opinion [not published herein].

A petitioner who is seeking DNA testing must “demonstrate that favorable results of the requested DNA testing ‘would establish ’ the appellant’s actual innocence of the crime . . . Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa. Super. 2005). (emphasis in original) A fill-in-the-blanks pre-printed form does not satisfy the prima facie requirements. The petitioner’s motion does nothing more than allege that unspecified blood and a “hair strand” were never tested, without explaining how actual innocence would extrapolate from those facts.

Finally, the petitioner’s guilt was overwhelming and DNA testing would not have changed the jury’s verdict. See State v. Reldan, 373 N.J. Super. 396, 861 A.2d 860 (2004) (collecting cases); King v. State, 808 So.2d 1237, 1247-49 (Fla. 2002) (post-conviction DNA testing of hair fragment found on murder victim’s nightgown would not establish reasonable probability of acquittal). Not only was the petitioner identified as the perpetrator, but the severe injuries suffered by the child were confirmed by both medical experts and civilian observations.

For the foregoing reasons, the petitioner has failed to present a prima facie case as required by section 9543.1 and his motion for post-conviction DNA testing is dismissed.

ORDER

And now, March 23, 2005, following review of the petitioner’s trial, it appearing that the petition is untimely and there is no reasonable possibility that DNA testing would produce exculpatory evidence that would establish the petitioner’s actual innocence of the offenses for which he was convicted; it is hereby ordered that the petitioner’s request for post-conviction DNA testing, pursuant to 42 Pa.C.S. §9543.1 is denied.

      . Jury trial, notes of testimony, vol. II at 166 [N.T.J.T.].

      . 18 Pa.C.S. §2702(a)(l).

      . 18 Pa.C.S. §2701(a)(l).

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §4304.

      . 18 Pa.C.S. §3123(a)(6).

      . 18 Pa.C.S. §3125(7).

      . N.T.J.T., supra note 1 at vol. II at 91-93.

      . Id. at vol. II at 206.

      . Id. at vol. II at 212.

      . Id. at vol. Ill at 10-18.

      . Notes of testimony of hearing on post-verdict and amended post-verdict motions on September 9, 1999 at 32-33, 63-65, 86 [N.T.P.V.M.]. The defendant repeated this to this court at sentencing and hearing on these motions. Notes of testimony sentencing hearing at 11-12, 13, 15; N.T.P.V.M. at 70, 78.

      . See also, State ex rel. Richey v. Hill, 603 S.E.2d 177, 187-89 (W. Va. 2004).


author:
BROWN, Member,

      O’CONNOR, Member,

text:
    Office of Disciplinary Counsel v. Johnston
    Disciplinary Board Docket nos. 160 D.B. 2002, 69 D.B. 2003, 89 D.B. 2003.

      December 15, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

BROWN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On January 23, 2003, Office of Disciplinary Counsel filed a petition for discipline at no. 160 D.B. 2002 against respondent, Mark Eugene Johnston. On May 20,2003 a second petition for discipline was filed against respondent at no. 69 D.B. 2003. On August 20, 2003 a third petition for discipline was filed against respondent at no. 89 D.B. 2003. Of the nine separate charges of professional misconduct contained in the three petitions, five involve convictions of crimes and/or related summary offenses, one involves a violation of probation, one involves a false application for the Accelerated Rehabilitative Disposition program, and two involve failure to report criminal convictions to the Disciplinary Board. Respondent filed answers to all of the petitions. By order of the Disciplinary Board dated December 2, 2003, the three petitions for discipline were consolidated.

A disciplinary hearing was held on March 2, 2004, before Hearing Committee 2.12 comprised of Chair J. Scott Maxwell, Esquire, and Members Douglas M. Johnson, Esquire, and Cynthia L. Davidoff, Esquire. Respondent appeared pro se.

Following the submission of briefs by the parties, the Hearing Committee filed a report on June 30,2004, and recommended that respondent be suspended for a period of three years.

This matter was adjudicated by the Disciplinary Board at the meeting of September 27,2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2) Respondent, Mark Eugene Johnston, was bom in 1962 and was admitted to practice law in Pennsylvania in 1991. His registration office address is Johnston and Associates, 518 Kimberton Road, No. 301,Phoenixville, PA 19460-4737.

(3) Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(4) Respondent has no history of prior discipline.

Charge I — Delaware County Conviction I

(5) On July 7,1997, respondent entered a plea of guilty to the charges of knowing or intentional possession of a controlled substance and defiant trespass.

(6) Respondent was sentenced on July 8,1997 by Judge Frank Hazel of the Delaware County Court of Common Pleas to one year probation on each count, to run consecutively for a total of two years of probation.

Charge II — Chester County Conviction I

(7) On January 29,1997, respondent entered a plea of guilty to a charge of driving under the influence of alcohol.

(8) He was sentenced by Judge James E. MacElree II, of the Court of Common Pleas of Chester County to 12 months probation, a $600 fine, 32 hours of community service, and safe driving school.

Charge III — Chester County Conviction II

(9) On January 29,1997, respondent entered a plea of guilty to false alarms to agencies of public safety.

(10) Respondent was sentenced by Judge James E. MacElree II, to 12 months probation, a $50 fine and 32 hours of community service.

Charge IV — Violation of Probation

(11) OnFebruary 12,1997, during the term ofrespondent’s 12-month probation, he used and consumed alcoholic beverages in an abusive or excessive manner, in violation of the terms of his probation. Respondent was administered a breath test and the test proved positive for alcohol. Respondent admitted he drank alcohol on the date in question.

(12) OnFebruary 12,1997, respondent left the Chester County Courthouse, contrary to the instructions of his probation officer not to leave, and in violation of the terms of his probation. Respondent had arrived at the courthouse at 8:30 in the morning and received a breath test, as noted above. When no one came to discuss the test with him, he left the courthouse.

(13) OnFebruary 12,1997, respondent provided false information to the adult probation officer of Chester County, in that respondent indicated on his monthly report form that he had not used alcohol.

(14) On March 10, 1997, respondent tested positive for the use of cocaine, in violation of the terms of his probation. He admitted the use, which occurred a day or two before the test.

(15) On March 14,1997, respondent again tested positive for cocaine and admitted to using it.

(16) On March 27,1997, based on the aforementioned use and positive tests for illegal drugs and other actions, the Court of Common Pleas of Chester County found that respondent violated his probation.

(17) Based on the finding of probation violation, the court revoked respondent’s probation and sentenced respondent to 14 days to 12 months imprisonment.

(18) On March 27,1997, respondent was given credit for 14 days previously served, released from prison on parole, and ordered to follow the terms of his probation and continue alcohol counseling.

Charge V — False Application for ARD

(19) On February 28, 1986, respondent was arrested in Montgomery County and charged with DUI.

(20) Following the aforesaid charge, respondent made application and was admitted to the Accelerated Rehabilitative Disposition (ARD) program in Montgomery County.

(21) On or about March 14,1995, respondent was arrested in Delaware County and charged with knowing or intentional possession of a controlled substance and defiant trespass.

(22) On October 18,1995, respondent completed and signed a waiver of speedy trial/verification of criminal history in order to be admitted to the ARD program in Delaware County.

(23) The foregoing waiver and verification contained respondent’s assertion at paragraph 4 that he had “never been arrested or charged with any criminal or vehicular offense as an adult or juvenile, whether the charges were dropped, dismissed or expunged, except for the charges which I am now requesting placement into the ARD program ....”

(24) Based on the foregoing waiver and verification and the representations respondent made therein, respondent was admitted to the ARD program in lieu of going to trial.

(25) The statement respondent made in the application was false in that respondent previously had been arrested for and charged with DUI, and placed in ARD in Montgomery County.

(26) On May 28, 1997, Judge A. Leo Sereni of the Court of Common Pleas of Delaware County, revoked respondent’s ARD in Delaware County.

(27) The revocation of respondent’s ARD stemmed from the fact that respondent had been admitted to the ARD program in Montgomery County and had not disclosed this fact in Delaware County.

Charge VI — Failure to Report Criminal Conviction I

(28) On July 7,1997, after respondent’s ARD was revoked, respondent entered a plea of guilty in the Court of Common Pleas of Delaware County to knowing or intentional possession of a controlled substance and defiant trespass, as noted above.

(29) Respondent did not report his conviction to the Disciplinary Board as required by the Rules of Disciplinary Enforcement.

Charge VII — Failure to Report Criminal Conviction II

(30) Respondent failed to report to the Disciplinary Board his convictions for DUI and false alarms to agencies of public safety.

Charge VIII — Delaware County Conviction II

(31) On October 30, 2000, respondent entered a plea of guilty to the charges of DUI and driving with a suspended operator’s license.

(32) Respondent was sentenced by Judge Frank Hazel of the Delaware County Court of Common Pleas to confinement for 30 days to 23 months, and a fine of $300 for the DUI; and 90 days confinement, a $1,000 fine, and 48 hours of community service for driving with a suspended license.

Charge IX — Montgomery County Conviction

(33) On November 10,1999, respondent entered a plea of guilty to DUI and driving with a suspended operator’s license.

(34) Judge Lawrence Brown of the Montgomery County Court of Common Pleas sentenced respondent to imprisonment of 30 days to 23 months, a $300 fine and costs, plus a $200 fine for driving with a suspended license.

Other Findings

(35) In May 2001, respondent was the subject of a parole violation hearing inMontgomeiy County and was incarcerated as a result.

(36) Respondent’s violation of parole in Montgomery County was based on his failure to report to authorities his arrest in Delaware County in April 2000.

(37) In September 2002, respondent was the subject of charges of aggravated assault, simple assault, recklessly endangering another person, harassment, and disorderly conduct in Chester County.

(38) Respondent entered a plea of guilty to the summary offenses of harassment and disorderly conduct.

(39) In July 2002, respondent was arrested on a bench warrant in Delaware County for failure to report to the George W. Hill Correctional Facility in January 2001, as he was required to do.

(40) In August 2002, respondent was the subject of a bench warrant request because he again failed to report to the George W. Hill facility.

(41) Respondent indicated at the hearing that he attends Alcoholics Anonymous five times per week, but provided no evidence to support that assertion.

(42) Respondent did not exhibit remorse for his misconduct.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) Pa.R.D.E. 203(b)(1) — Conviction of a serious crime constitutes an independent basis for discipline.

(2) Pa.R.D.E. 214(a) — An attorney convicted of a serious crime shall report the fact of such conviction to the secretary of the board within 20 days of sentencing.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the board on three consolidated petitions for discipline filed against respondent charging violations of the professional rules arising from a series of criminal convictions and related conduct. An extensive stipulation of facts was reached by the parties and submitted at the time of the disciplinary hearing.

The evidence conclusively establishes that respondent has been convicted of one count of knowing or intentional possession of a controlled substance, three separate driving under the influence offenses over a three-year period from 1997 through 2000, filing false alarms to public agencies in 1997, driving under a suspended operator’s license in 1999 and 2000, defiant trespass in 1997, disorderly conduct in 1997 and 2002, and harassment in 2002. Furthermore, respondent was found in violation of parole in 2001, and in violation of probation in 1997. Respondent failed to report his conviction in 1997 to the Disciplinary Board and failed to report his arrest and subsequent conviction in Delaware County in 2000 to the Montgomery County Probation Department. Respondent was the subject of two bench warrants for failure to report to prison in 2002. Respondent filed a false application for the ARD program and lied to his probation officer.

As with all disciplinary matters predicated on a criminal conviction, the issue before the board is the extent of discipline to be imposed on respondent. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). Consideration is to be given to any aggravating and mitigating factors. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999).

Respondent presented no mitigating factors, other than the fact that he has no history of prior discipline. While respondent testified that much of his misconduct was attributable to alcoholism, he failed to corroborate this representation with other evidence, nor did he offer any expert testimony on the subject. Respondent has failed to establish that his alcoholism caused his misconduct, and is not entitled to mitigation. Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989).

The committee found as an aggravating factor that parts of respondent’s testimony at the disciplinary hearing were not truthful, and as such questioned respondent’s credibility. Specifically, respondent testified under oath that he had no “trouble” after 2000, a statement that was false, as he later admitted that he was arrested in Chester County in September 2002 and charged with misdemeanors, which were bargained down to summary convictions. Respondent’s only explanation was that he just did not remember.

Respondent’s multiple convictions and related actions can only be described as egregious in quantity and quality. Respondent has demonstrated a blatant disregard for the laws of this Commonwealth and the rules and regulations of the legal profession. Respondent has shown no remorse for his actions and seems unwilling to comprehend their seriousness. There is a clear need to impose a sanction that will protect the public and maintain the integrity of the bar. This will be accomplished by suspending respondent for a period of two years. While the board is mindful that the Hearing Committee recommended a three-year suspension, we are persuaded that two years is more appropriate, in light of respondent’s relative youth and inexperience in the practice of law, and the time required by the reinstatement process. Respondent will be required to prove his character and fitness at the end of that time, if he desires to practice law in Pennsylvania in the future.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Mark Eugene Johnston, be suspended from the practice of law for a period of two years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Saidis, McLaughlin and O’Connor dissented and would recommend a three-year suspension.

Board Vice-Chair Rudnitsky recused.

Board Member Nordenberg did not participate in the September 27, 2004 adjudication.

DISSENTING OPINION

To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

O’CONNOR, Member,

December 15,2004 — While I agree with the findings of fact in the above matter, I respectfully dissent from the recommendation of the majority for a two-year suspension and would instead recommend a three-year suspension as recommended by the Hearing Committee.

The numerous charges, violations of the law, lack of candor and continued reluctance to comply with the Rules of Disciplinary Enforcement and Professional Conduct suggest a much more serious problem exists.

Had this been an isolated incident or even a few incidents over a short period of time I might agree with the majority; but that is not the case here, as we are dealing with three consolidated petitions.

The respondent shows a history of problems beginning in 1986 with numerous serious situations from 1995 to 2002. In addition to the numerous criminal convictions, the respondent filed a false affidavit, failed to report for a jail term, has been found by the Hearing Committee to be less than truthful, and also has exhibited no remorse for his misconduct.

A suspension of three years is much more appropriate and I would recommend the same.

ORDER

And now, May 13, 2005, upon consideration of the report and recommendations of the Disciplinary Board and dissenting opinion dated December 15, 2004, the petition for review and response thereto and motion to dismiss with prejudice and response thereto, the motion to dismiss with prejudice is dismissed as moot, and it is hereby ordered that Mark Eugene Johnston be, and he is suspended from the bar of this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: FREEDBERG, P.J.,

text:
    Thakrar v. Wegman’s Food Market

      Richard Orloski, for plaintiff.

      Joseph D ’Amico Jr., for defendant.
    November 19, 2004
   FREEDBERG, P.J.,

Plaintiff fell inside Wegman’s store on an unknown substance on the floor. The defendant moves for summary judgment. Because there are genuine issues of material fact, defendant’s motion is denied.

Summary judgment may be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Coleman v. Coleman, 444 Pa. Super. 196, 199, 663 A.2d 741, 744 (1995). The record must be viewed in light most favorable to the non-moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992).

A non-moving party opposing summary judgment must adduce sufficient evidence on an issue essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Ertel v. Patriot-News Co., 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

To recover damages in a slip and fall case, where invitee is injured in a store, the invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances. Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 217, 647 A.2d 573, 575 (1994) (citing Moultrey v. Great A. & P. Tea Co., 281 Pa. Super. 525, 530, 422 A.2d 593, 596 (1980). The evidence must show that the proprietor knew or, in the exercise of reasonable care, should have known of the existence of the harmful condition. Id. The invitee is required to prove either that the store owner participated in creating the harmful condition, or that the owner had actual or constructive notice of the condition. Restatement (Second) of Torts §343. Such notice may be established by direct or circumstantial evidence. Moultrey, supra at 527, 422 A.2d at 594.

The defendant contends that the plaintiff has failed to produce evidence in support of the claim and that defendant is entitled to judgment as a matter of law. The defendant argues that it is not an insurer of its patron’s safety and that the mere existence of a harmful condition in a public place or the mere happening of an accident is not in and of itself evidence of a breach of the proprietor’s duty of care. Myers v. Penn Traffic Company, 414 Pa. Super. 181, 606 A.2d 926 (1992). The defendant also argues that there is insufficient evidence to prove either actual notice or that the spot was on the floor a sufficient time prior to the accident to establish constructive notice imputed to Wegman’s.

“What constitutes constructive notice must depend on the circumstances of each case, but one of the most important factors to be taken into consideration is the time elapsing between the origin of the defect or hazardous condition and the accident.” Neve v. Insalaco, 111 A.2d 786, 791 (Pa. Super. 2001) (citing Rogers v. Horn & Hardart Baking Co., 183 Pa. Super. 83, 86, 127 A.2d 762, 764 (1956)). Defendant asserts that plaintiff has no evidence to show how long the spot was there or what it consisted of. The defendant contends that there is only speculation on the issue of notice and how long the spot may have been on the floor which is not sufficient to create an issue of fact. Myers, supra at 190-91, 606 A.2d at 931.

Plaintiff responds that summary judgment is not appropriate because constructive notice and lack of reasonable care are sufficiently shown by the evidence to create issues of fact. Plaintiff relies on Restatement (Second) of Torts §§343-344. Restatement (Second) of Torts §343 provides in relevant part:

“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
“(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
“(b) has no reasons to believe that they will discover the condition or realize the risk involved therein, and
“(c) invites or permits them to enter or remain upon the land without exercising reasonable care ...
“(i) to make the condition reasonably safe ....”

Section 344 provides:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons ..., and by the failure of the possessor to exercise reasonable care to
“(a) discover that such acts are being done or are likely to be done, or
“(b) give a warning adequate to enable visitors to avoid the harm, or otherwise protect them against it.”

According to the plaintiff, these sections provide that a store owner has an affirmative obligation to police its premises to discover defects, even if they are caused by other patrons of the store. The plaintiff argues that a grocery store owner knows that its patrons may drop grocery items in the aisles that could constitute a dangerous condition to other shoppers.

Plaintiff also argues that the testimony of defendant’s employees demonstrates that defendant’s motion for summary judgment cannot be granted. Admissions from deposed employees show that hourly sweeps are supposed to be noted on sweep logs, which are a high priority for Wegman’s, and that the sweep logs reflect no hourly sweeps the entire week preceding plaintiff’s fall. Plaintiff also refers to testimony from defendant’s employees regarding a spill that was cleaned up near where plaintiff fell. One employee admitted a spill was cleaned up at 11:58 a.m. near where the plaintiff fell. Another employee had occasion to observe the substance on the floor that caused plaintiff to fall. That employee found a trail of drops of a similar substance and remembered that the trail of drops continued into the aisle where the spill was cleaned up. Plaintiff contends, because there was a spill in the form of a trail of drops which extended to an aisle where a spill was cleaned up, there is circumstantial evidence that defendant was on specific notice of a spill and only part of the spill was cleaned, while the trail of drops remained on the floor for several hours until the plaintiff’s fall. Further, the employee who later cleaned up the spill on which plaintiff slipped, described the substances as “like water that kind of solidified a little.” The plaintiff asserts there is sufficient evidence of constructive notice because the evidence tends to suggest it was not a fresh spill, but had time to solidify.

Considering the law and the facts on the record, defendant’s motion for summary judgment must be denied. As noted above, the Superior Court in Zito v. Merit Outlet Store, 436 Pa. Super. 213, 217, 647 A.2d 573, 575, held that the law of Pennsylvania is:

“In order to recover damages in a ‘slip and fall’ case such as this, the invitee must present evidence which proves that the store owner deviated in some way from his duty of reasonable care under the existing circumstances____This evidence must show that the proprietor knew, or in the exercise of reasonable care should have known, of the existence of the harmful condition. Id. Section 343 also requires the invitee to prove either that the store owner helped to create the harmful condition, or that it had actual or constructive notice of the condition.”

The defendant’s policy of performing hourly sweeps in the exercise of reasonable care to discover spills, along with evidence that no such sweeps were done, indicates that store owner defendant deviated from its duty of care to look for slippery substances. These facts also demonstrate that the defendant, in the exercise of reasonable care, should have known of the existence of the harmful condition.

The plaintiff also offers evidence that defendant failed to properly clean up the substance. Two of defendant’s employees testified that the substance plaintiff fell on was part of a trail of drops. Testimony also indicates that a spill was cleaned up in an aisle where the trail of drops extended several hours before plaintiff’s fall. The evidence, viewed in a light most favorable to the plaintiff, suggests that the spill that was cleaned up was one end of a continuous trail, the remainder of which was simply not cleaned up.

Defendant’s motion for summary judgment is denied because plaintiff has raised substantial issues of material fact about whether defendant should have known of the harmful condition and whether it failed to properly clean the floor.

Wherefore, we enter the following:

ORDER

And now, November 19,2004, defendant’s motion for summary judgment is denied.


author: McGINLEY, J.,

text:
    Sebesta v. Shaihar Corporation

      Robert J. Magee, for plaintiffs.

      John W. Ashley, for defendants.
    June 18, 2004
   McGINLEY, J.,

Before this court is the post-trial motion of the plaintiffs seeking a new trial on damages. The issue is whether a verdict awarding both medical expenses and lost wages are so inconsistent with a verdict of $ 1 for pain and suffering as to require a new trial.

FACTUAL BACKGROUND

The plaintiff, Eugene Sebesta, was injured on February 1, 2001, when he slipped and fell on a patch of ice while delivering dairy products to Sims Quality Market, which is owned and operated by defendant, Shaihar Corporation.

The case was tried before a jury from February 9,2004 through February 13, 2004. At trial, Sebesta presented medical evidence of injury and a diagnosis of a torn lateral and medial meniscus (knee) and a fractured pars interarticularis (spine). Further evidence included x-rays, taken the day after the fall, which revealed slippage of one vertebra over the next. Sebesta returned to employment on a restricted duty basis in April 2001, but presented evidence that his condition worsened over the next 10 months. On December 5, 2001, Sebesta underwent surgery, which included a spinal fusion, a procedure to ease pressure on his nerve roots and the insertion of titanium rods and pedicle screws. During recovery and rehabilitation, Sebesta’s knee injury became symptomatic and he underwent arthoscopic surgeiy. He returned to work in August 2003.

Sebesta presented evidence that as a result of the injuries he incurred a wage loss of $41,300 and medical expenses of $37,700.

Following deliberation, the jury returned with a verdict in favor of Sebesta. The jury apportioned liability equally finding both the defendant and the plaintiff 50 percent negligent. Finding that the defendants’ negligence was a factual cause of the injury, the jury awarded Sebesta $41,300 for lost wages and $37,700 for medical expenses, but returned a zero verdict for other non-economic damages (pain and suffering). The jury also awarded zero on Roberta Sebesta’s loss of consortium claim.

Following the reading of the verdict, this court instructed the jury that “the law does not permit a zero number” for the noneconomic damages line, but that “the law allows any other number . ...” The jury then returned with an amended verdict reflecting an award for noneconomic damages in the amount of $1.

Plaintiff now seeks a new trial on damages, arguing that a verdict of zero or $1, together with an award of wage loss and medical expenses, is inconsistent and/or against the weight of the evidence.

DISCUSSION

“It is well settled that the grant of a new trial is a matter within the discretion of the trial court.” Monschein v. Phifer, 771 A.2d 18,20 (Pa. Super. 2001); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). A new trial may only be granted when the jury’s verdict is so contrary to the evidence that it “shocks one’s sense of justice.” Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995).

The Supreme Court has held that a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed unless the trial court has a reasonable basis to believe that: “(1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a pre-existing condition or injury was the sole cause of the alleged pain and suffering.” Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 767 (2001).

This idea is balanced by the idea that a jury cannot eliminate pain from wounds, when all human experience proves the existence of pain, and it may not withhold lost wages when the evidence in the case clearly establishes the loss of wages as the result of the negligence which they, the jury, have adjudicated against a responsible defendant. Id., citing Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952).

Having reviewed the record in this case, there is no reasonable basis to believe that the jury did not believe the plaintiff experienced any pain and suffering, nor that a pre-existing condition was the sole cause of the alleged pain and suffering. The jury apportioned 50 percent of the responsibility to defendants and awarded lost wages and full medical expenses incurred as a result of Sebesta’s injury.

Further, human experience dictates that any injury that would result in significant medical expenses and lost wages must include pain and suffering. That Sebesta suffered a fracture of the spine and a knee injury, both of which required surgical intervention and treatment, virtually assures pain and suffering.

In the case of Monschein v. Phifer, 111 A.2d 18 (Pa. Super. 2001), the jury awarded plaintiff $30,000 for lost earnings, but failed to award for pain and suffering. In granting a new trial on the issue of damages, the Superior Court recognized that the jury obviously accepted the fact that the plaintiff incurred a disabling injury as a result of his pain by awarding him an amount for lost earnings. However, they also recognized that the jury’s failure to award a sum for pain and suffering and other general damages, after accepting that the plaintiff incurred a pain-related disability, was problematic. Id. at 20-21.

The court held that “in circumstances such as these, a new trial is required on the issue of damages. The jury’s decision to award no amount for general damages was inconsistent with the weight of the evidence [and] the jury’s own conclusions ... and as such, ‘is offensive to the conscience and judgment of the court.’ ” Id. at 21.

Likewise, the jury in this case clearly accepted that Sebesta incurred a disabling injury, awarding him lost wages, and that he incurred medical expenses as a result of those injuries, awarding medical expenses. Yet the jury failed to award damages for pain and suffering. This failure to award for noneconomic damages is inconsistent with the weight of the evidence and the jury’s own conclusions, and requires a new trial limited to the issue of damages.

Accordingly, plaintiff’s motion for a new trial on the issue of damages is granted.

      . Notes of testimony (N.T.) 15,20-21, 30.

      . N.T. 20-21, 30, 32-35.

      . N.T. 17-18.

      . N.T. 129-30.


author: KLEINFELTER, J,

text:
    Whitsel v. PennDOT

      Anthony Stefanon, for plaintiff.

      Nicholas Noel III, for defendants Gannett Fleming Inc. and JBC Associates Inc.

      Steven C. Gould, for defendants PennDOT and Commonwealth, Department of Environmental Protection.

      R. Thomas McLaughlin, for defendant Johnson Mirmiran & Thompson PC.
    October 26, 2005
   KLEINFELTER, J,

Before the court is plaintiff’s petition to open and strike judgment of non pros which judgment had been sought and entered on behalf of defendant Johnson Mirmiran & Thompson P.C. (JMT).

A review of the procedural history is necessary. The action commenced with the filing of a writ of summons on March 6, 2003. A complaint followed on June 6, 2003. Although other defendants filed preliminary objections to the complaint, JMT did not. JMT filed its answer with new matter on July 28, 2003. Plaintiff’s reply to new matter was filed August 8, 2003.

On July 12, 2005, almost two years after filing its answer, JMT invoked the provisions ofPa.R.C.P. 1042.3 certificate of merit by filing a praecipe with the prothonotary seeking entry of judgment of non pros for failure to file the certificate required by the rule. Judgment of non pros was entered on July 12, 2005, and plaintiff’s instant petition to open was filed September 23, 2005.

Plaintiff’s petition to open challenges JMT’s judgment of non pros on two grounds. In the first place, plaintiff contends that JMT’s invocation of Rule 1042.3 is untimely and that any objection for failure to comply with the rule has been waived. Second, and more fundamentally, plaintiff contends that Rule 1042.3 applies only to an action against “a licensed professional” and that JMT is an unlicensed corporation.

We addressed the latter issue in our November 14, 2003 opinion in this matter (Whitsel I) when the identical issue was raised by JMT’s co-defendants, Gannett Fleming Inc. and JBC Associates by filing preliminary objections in the nature of a motion to strike. In Whitsel I we opined:

“On the other hand, we must agree with plaintiffs’ argument that Rule 1042.1 as drafted applies only to actions against licensed persons and not to unlicensed corporations. The plain words of Rule 1042.1 are clear and unambiguous. The rule applies only to a ‘licensed professional’ and the latter is unambiguously defined as ‘any person who is licensed pursuant to an Act of Assembly.’

“In the case of ‘an engineer,’ subsection (b)(l)(vi) of the rule refers us to the Engineer, Land Surveyor and Geologist Registration Law, 63 P.S. §148 et. seq. That law makes it unlawful ‘for any person’ to practice engineering unless licensed and registered. See 63 P.S. § 150. Corporations engaged in providing engineering services are not licensed but are required only to ensure that ‘the directing heads and employees of such firm or corporation in responsible charge of its activities’ be licensed. 63 P.S. §153.

“Had the Pennsylvania Supreme Court intended Rule 1042.1 et seq. to apply to licensed professional corporations it certainly could have said so. Yet, even were we to interpret ‘persons’ to include corporations, the rule would still not apply instantly since objecting defendants are not licensed corporations. We must interpret the absence of language making the rule applicable to unlicensed corporations as manifesting intent to exclude such defendants from the scope of the rule, even if the action sounds in professional liability negligence.” Id. at 7.

Notwithstanding our prior opinion, JMT argues that we should reconsider our holding in light of Rogal v. Silverstein, Superior Court no. 3307 EDA 2004, a nonprecedential decision filed July 18, 2005. In Rogal the defendants were Harry P. Silverstein D.D.S., P.C. and Harry P. Silverstein D.D.S. Plaintiff had filed no Rule 1042.3 certificate and did not contend that his action against the dentist personally could survive non pros. Plaintiff did claim, however, that his claim against Silverstein P.C. should survive.

The panel of the Superior Court first noted that Pa.R.C.P. 76 includes “corporations” within the definition of “person” and that the Professional Corporations Law, 15 Pa.C.S. §2903(b), authorizes “licensed persons to render professional services by means of a professional corporation in all cases.” The panel concluded that, at least as far as dentists are concerned, Rule 1042.3 should apply to corporations.

In our prior opinion we considered the applicability of the rule to licensed professional corporations but noted that “even were we to interpret ‘person’ to include corporations, the rule would still not apply instantly since objecting defendants are not licensed corporations.” Whitsel I, supra at 7. (emphasis in original)

On the other hand, we would not contend that Rule 1042.3 is not capable of being given the broader interpretation espoused by the non-precedential decision in Rogal. Whether the rule should be interpreted narrowly on its face as we did in Whitsel I, or more broadly as in Rogal, must await a definitive appellate opinion.

Instantly, however, the inquiry does not end with an interpretation of the term “licensed person.” Plaintiffs’ petition to open makes two additional points. First, plaintiff claims that her complaint is not based upon an allegation that a licensed professional deviated from an acceptable professional standard; and, secondly, that the applicability of Rule 1042.3 has been waived by failure to raise it timely.

Because we agree with the second proposition, we will not indulge an analysis of the former. It is true, as JMT contends, that the rule does not state precisely when a defendant must file its praecipe for non pros. Rule 1042.3 mandates that a plaintiff’s certificate of merit be filed “with the complaint or within sixty days” thereafter unless the court “upon good cause shown, shall extend the time ... for a period not to exceed sixty days.” Rule 1042.6 prevents the prothonotary from entering judgment of non pros during the initial 60-day period or during any extension. The question remains however, “After all time for filing the certificate has been exhausted, when should a party assert the remedy provided in Rule 1042.6?” We believe the answer is found in Rule 1042.4 Responsive Pleading:

“A defendant against whom a professional liability claim is asserted shall file a responsive pleading within the time required by Rule 1026 or within twenty days after service of the certificate of merit on that defendant, whichever is later.”

Rule 1026 requires that every pleading subsequent to the complaint shall be filed within 20 days after service of the preceding pleading. Subsequent pleadings include, of course, preliminary objections and, while a praecipe for entry of judgment of non pros may not be technically a “pleading” or “preliminary objection,” we believe the spirit of Rule 1042.4 is to require EITHER an answer, a preliminary objection OR the Rule 1042.6 praecipe within 20 days after the time for filing the certificate has expired.

Another approach would be to require the Rule 1042.6 praecipe to be filed within a “reasonable” time after the time for filing the certificate has passed.

We hold instantly that JMT should have filed its praecipe for judgment of non pros at least within 80 days of the filing of the complaint (allowing 60 days to file the certificate plus 20 days thereafter) unless there was some reason for a delay. Here, JMT filed its answer to the complaint on July 28, 2003, and did not assert any rights it had under Rule 1042.6 until July 12, 2005. JMT has advanced no reason for such an unreasonable delay. Given these circumstances, we hold that JMT has waived any right it had under Rule 1042.6.

Accordingly, we enter the following:

ORDER

And now, October 26, 2005, plaintiff’s petition to open and strike judgment of non pros is granted and the prothonotary of Dauphin County is directed to strike the judgment entered against plaintiff on July 18, 2005.

      . Adopted January 27,2003, effective immediately.

      . The issue was also raised through preliminary objections fded by defendant Pennoni Associates, which we denied by memorandum opinion filed September 21,2004.