text:
    Commonwealth v. Klingel

      C.P. of Monroe County,
    no. 1672 CR2010.

      Janet K. Marsh Catina, for Commonwealth,

      John Paul Klingel, pro se.
    January 27, 2011
   SIBUM, J.,

ADJUDICATION

On June 17, 2010, a criminal complaint was filed against John Paul Klingel (“defendant”) for disorderly conduct and harassment. A summons was issued on June 18, 2010, and defendant appeared at a preliminary hearing on August 2, 2010. At that time, defendant signed a waiver of counsel, waiving his right to be represented by an attorney, and the charges were held over for court. On September 13, 2010, defendant appeared for arraignment and entered a plea of not guilty. A criminal information was filed on September 9, 2010, charging defendant with one count each of the following crimes: disorderly conduct, 18 Pa.C.S.A. §5503(a)(4) (M3); and Harassment, 18 Pa.C.S.A. §2709(a)(3) (S). At the call of the list on November 3,2010, defendant was colloquied as to waiver of counsel and waiver of a jury trial. Defendant then signed and filed both a waiver of counsel and waiver of a jury trial. A non-jury trial was held on December 15,2010. Prior to the start of the non-jury trial, the parties waived the seven-day time requirement under Pennsylvania Rule of Criminal Procedure §622. The court is now prepared to decide this matter.

FINDINGS OF FACT

1. On May 25, 2010 at approximately 7:20 p.m., Trooper Norman Strauss, III of the Pennsylvania State Police responded to a call at the Wagner property located at 7092 Rossmor Drive, Saylorsburg, Pennsylvania, regarding an ongoing property line dispute between Mr. and Mrs. Wagner and their adjacent neighbor.

2. Mr. Wagner advised Trooper Strauss that his neighbor had urinated on his fence.

3. Mr. Wagner identified John Paul Klingel (“defendant”) as the neighbor.

4. Defendant owns and resides on lot 42 and owns a portion of lot 44 on Rossmor Drive.

5. The Wagners own and reside on lot 43 and the remaining portion of lot 44 on Rossmor Drive. The Wagners’ property is located between defendant’s lot 42 and his portion of lot 44. The Wagners purchased lot 43 from Terry Lynn Elder.

6. Troopers have responded to this location seven times in the past to address the dispute between the Wagners and defendant. [Affidavit of probable cause, 6/17/10, p.4.] The state police have received approximately 20 calls regarding the property line dispute.

7. In the past, defendant has thrown wire and nails into the Wagners’ yard and nails into their driveway. Defendant has also thrown dead fish rolled in newspaper and chicken bones onto the Wagners’ property.

8. As a result of defendant’s conduct, the Wagners had a survey of their property completed approximately two years ago and erected a fence three feet inside the property line between lot 42 and lot 43. The Wagners also installed a video surveillance camera.

9. The fence runs perpendicular to Rossmor Drive.

10. The Wagners also attached “no trespassing” signs to either end of the 120-foot fence on the side of the fence facing defendant’s property.

11. Surveillance video depicts defendant walking onto the Wagners’ property and urinating on their side of the fence.

12. Surveillance video also shows defendant walking onto the Wagners’ property and hanging the “no trespassing” sign on the Wagners’ side of the fence as well as the defendant hitting the fence with his lawn mower.

13. Trooper Strauss interviewed defendant at 7:30 p.m. on May 25, 2010.

14. When questioned whether defendant urinated on the fence, defendant admitted to Trooper Strauss to urinating on the fence three to four times. Defendant stated that he urinated on the Wagners’ side of the fence so that he would not be seen doing so.

15. Defendant testified to touching the fence a few times with his lawn mower while maneuvering the mower to cut the lawn.

16. Defendant also testified to hanging the “no trespassing” sign on the Wagners’ fence after it had blown off into his yard.

17. Defendant asserts that he legally owns the Wagners’ property, being lot 43 and part of 44. Defendant also asserts that the Wagners have fraudulently come into possession of lot 43 and part of 44.

DISCUSSION

Defendant has been charged with one count of disorderly conduct and one count of harassment in connection with the above referenced events. We will address each charge independently.

1. Disorderly Conduct

Defendant is charged with one count of disorderly conduct - harassment or physically offensive condition, a misdemeanor of the third degree, pursuant to 18 Pa.C.S.A. §5503(a)(4). This section provides:

(a) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. 18 Pa.C.S.A. §5503(a)(4).

Disorderly conduct is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. §5503(b).

In the case at hand, the commonwealth bears the burden of proving each material element of the offense beyond a reasonable doubt. Commonwealth v. Burton, 445 A.2d 191, 193 (Pa. Super. 1982). First, the commonwealth must prove that defendant caused or intended to cause public inconvenience, annoyance or alarm. The word “public” as defined by the statute means “affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.” §5503(c).

In addition to establishing that defendant’s conduct occurred on public property and that the public was likely to be affected as provided in §5503(c), the commonwealth must also prove that defendant had the proper mens rea as mandated in the statute. That is, the commonwealth would need to establish that defendant specifically intended to cause serious public inconvenience or substantial harm to the public, or that defendant persisted in disorderly conduct after a reasonable warning or request to desist was made. §5503(b); Commonwealth v. Coon, 695 A.2d 794, 798 (Pa. Super. 1997).

After reviewing the evidence of record, we do not find that defendant caused or intended to cause public inconvenience, annoyance or alarm. Rather, we find that defendant wished to assert a property interest in the Wagners’ premises and sought to assert that right as against the Wagners only, albeit in an inappropriate manner.

The evidence in this case reveals that defendant’s act of urinating on the fence occurred on the Wagners’ private property. The fence is located between lot 42 and lot 43, approximately three feet from defendant’s lot 42 property line. Neither lot 42 nor lot 43 are open to the public, and both defendant and the Wagners’ residences are private dwellings, not apartment buildings. Mr. Wagner testified that portions of lot 42 and 43 abut Rossmor Drive and that the fence in question was 120 feet long. However, no evidence was presented indicating how close defendant was to the public road when he urinated on the fence or what other physical features existed between the road and defendant’s location at the time of the event. Based upon the video evidence presented at trial, we presume, but are uncertain, that defendant urinated at the end of the fence farthest from the road. If true, he was at least 120 feet from Rossmor Drive at the time of the offense. In addition, we note from the video that there are trees on the Wagners’ yard running along the fence line. However, the evidence of record does not establish what, if any trees or other objects existed between the road and defendant when he urinated on the Wagners’ fence.

We also note that Trooper Strauss testified that he did not know whether defendant was actually viewed from the roadway, only that he could have been viewed if someone had been in the roadway at the time of the incident. The Trooper did not elaborate as to what part of defendant or from what location on Rossmor Drive the defendant could have been seen while urinating on the Wagners’ fence. Applying the statutoiy definition of “public” to the circumstances and facts of this case, we are constrained to find that defendant’s actions did not occur “in a place to which the public or a substantial group has access...” §5503(c). We further find that the incident did not occur on a highway or in a neighborhood as contemplated by the crimes code. Rather it occurred on private property at least 120 feet from a public road and in an area where, based upon the evidence present, we are unable to determine the extent to which defendant may have been visible from Rossmor Drive.

In addition to finding that defendant did not commit the conduct in question in a public place, we are also constrained to find that defendant did not cause or intend to cause public inconvenience, annoyance or alarm. “A person acts intentionally with respect to a material element of an offense when... it is his conscious object to engage in conduct of that nature or to cause such a result.” Id. The specific intent requirement of disorderly conduct may be met by a showing of a reckless disregard of the risk of public inconvenience, annoyance, or alarm, even if the [defendant’s] intent was to send a message to a certain individual, rather than to cause public inconvenience, annoyance, or alarm. Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005). At trial, defendant asserted that the Wagners did not “legally” own lot 43 or any portion of lot 44 and stated that he went around the fence to the Wagners’ side to urinate so that he would not be seen from the roadway. Defendant specifically denied that he intended to cause serious public inconvenience or substantial harm to the public. Rather, defendant testified that he was not harming anyone because he believed he was on his own property and that he owned both sides of the fenced area. Finally, defendant acknowledge the lawsuit brought against him in this court by the Wagners’ predecessor in title in 1996. We judicially note that in that action, the Honorable Peter J. O’Brien found that Terry Lynn Elder, not defendant, owned lot 43.

Based upon the testimony presented and the facts judicially noted above, we find that defendant’s conduct was amisguided attempt by defendant to annoy the Wagners by asserting his “right” to enter upon their property. We further find that defendant’s intention in doing so was to annoy and assert this non-existent right as to the Wagners only, not to inconvenience, annoy or alarm the public. As such, we are constrained to find that the evidence does not establish beyond a reasonable doubt that defendant either intended to or caused a public inconvenience, annoyance or alarm. Having so found, we need not discuss whether defendant’s conduct created a hazardous or physically offensive condition or whether his actions served no legitimate purpose as required by statute. In accordance with the above findings, this court concludes that the commonwealth has failed to prove beyond a reasonable doubt that defendant is guilty of disorderly conduct in violation of 18 Pa.C.S.A. §5503(a)(4).

2. Harassment

Defendant has also been charged with one count of harassment - course of conduct with no legitimate purpose pursuant to 18 Pa.C.S.A. §2709(a)(3), a summary offense. This section provides:

(a) A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:
(3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose. 18 Pa.C.S.A. §2709(a)(3).

An offense under subsection (a)(3) constitutes a summary offense. §2709(c)(l). Section 2709(a)(3) first requires the fact finder to infer a specific intent to harass, annoy or alarm another. Commonwealth v. Battaglia, 725 A.2d 192, 194 (Pa. Super. 1999). An intent to harass may be inferred from the totality of the circumstances. Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super. 2002).

F or the reasons stated earlier in this opinion, we conclude that defendant’s behavior and actions were instituted to annoy the Wagners. As such, the commonwealth has established the first element of the charge of harassment. Next, the commonwealth must prove that defendant engaged in a course of conduct or repeatedly committed acts which serve no legitimate purpose. “Course of conduct” is defined by statute as “a pattern of actions composed of more than one act over a period of time, however, short, evidencing a continuity of conduct.” §2709(f). Our Superior Court has embraced the definition that “course of conduct is more than an isolated verbal or physical act. It is a pattern of conduct composed of same or similar acts repeated over a period of time, however short, which establishes a continuity of purpose in the mind of the actor.” Commonwealth v. Tedesco, 550 A.2d 796, 799-800 (Pa. Super. 1988). Further, because “course of conduct” means a pattern of actions composed of more than one act over a period of time evidencing a continuity of conduct, a single act will not support a conviction. §2709(f); Battaglia, 725 A.2d at 194.

Here, Mr. Wagner testified that defendant has thrown wire and nails into their yard and has thrown nails into their driveway. Mr. Wagner also testified that defendant has thrown dead fish rolled in newspaper and chicken bones onto their property. Defendant, moreover, testified to urinating on the Wagners’ fence three or four times. The surveillance video also depicts defendant running into the fence with his lawn mower, hanging the no-trespass sign on the side of the fence facing the Wagners’ property, and repeatedly entering upon the Wagners’ property after the Wagners asked defendant to stay off their property. In addition, defendant placed his burning barrel in such close proximity to the Wagners’ fence that he charred a portion of the fence. Such actions are enough to create a continuing course of conduct.

Whether or not such conduct falls under the harassment statute rests on whether defendant’s conduct served no legitimate purpose. Conduct must be of a non-legitimate nature, i.e., not constitutionally protected. Battaglia, 725 A.2d at 194; Commonwealth v. Miller, 689 A.2d 238, 242 (Pa. Super. 1997).

Here, defendant’s conduct served no legitimate purpose. We can find no legitimate purpose in throwing such things as nails, wire, dead fish or chicken bones onto the Wagners’ property. Nor do we find any legitimate purpose to “defendant urinating on the Wagners’ fence on a repeated basis, especially when he has been asked to refrain from entering the Wagners’ property and defendant’s house is nearby and equipped with indoor plumbing.” We reach a similar conclusion with respect to defendant’s repeated entry onto the Wagners’ premises.

With respect to defendant’s contention that he was legally on lot 43, that argument is devoid of merit. Defendant has acknowledged and we take judicial notice of the equity action between the Wagners’ predecessor in title, Terri Lynn Elder, and defendant docketed in this court at 2508 Civil 1996. That action involved an adverse possession claim by Terri Lynn Elder to a portion of lot 44. This court by the Honorable Peter J. O’Brien found that Ms. Elder had acquired a portion of lot 44 by adverse possession. Judge O’Brien, in granting Ms. Elder title to her portion of lot 44, specifically found that Ms. Elder was the owner of lot 43. Judge O’Brien’s finding to this effect was never overturned on an appeal. The evidence at trial reveals that Ms. Elder later conveyed her interest in lot 43 and lot 44 to the Wagners. As such, any contention by defendant that he has an ownership or legal interest in the Wagners’ property or that his conduct constitutes a legitimate purpose in that it serves to assert defendant’s right to their property is devoid of all merit.

Accordingly, the commonwealth has established beyond a reasonable doubt that defendant’s repeated conduct served no legitimate purpose. The commonwealth has further established that defendant intended for his conduct to annoy the Wagners. In accordance with the above findings, this court concludes that the commonwealth has proven beyond a reasonable doubt that defendant is guilty of harassment in violation of 18 Pa.C.S.A. §2709(a)(3).

While we are constrained to find defendant not guilty of the more serious charge of disorderly conduct and guilty only of the lesser charge of harassment, we are sensitive to the long running problems caused by defendant’s persistent conduct with respect to the Wagners’ property. Defendant’s conduct has resulted in litigation in this court between the parties docketed at 280 Civil 2008. In that action, of which this court takes judicial notice, the Wagners sued defendant for trespass seeking to enjoin defendant from entering upon their property, that being lot 43 and the Wagners’ portion of lot 44. The Wagners’ law suit also requests a declaratory judgment confirming the Wagners as the owners of lots 43 and their share of lot 44.

As part of the litigation in that action, the Wagners filed a motion for summary judgment, which was granted by the undersigned on January 6, 2011. Our January 6, 2011 order confirms the Wagners as the owners of lots 43 and part of lot 44 and enjoins defendant from entering upon their property. Our January 6,2011 order also serves as further notice to defendant that he has no ownership or possessory right, legal or otherwise, in or to lot 43 or the Wagners’ portion of lot 44. Any future encroachment upon the Wagners’ property by defendant will likely result in the filing of additional and more serious criminal charges and/or contempt proceedings.

CONCLUSIONS OF LAW

1. The commonwealth has failed to prove beyond a reasonable doubt that defendant is guilty of disorderly conduct.

2. The commonwealth has established beyond a reasonable doubt that defendant is guilty of harassment.

VERDICT

And now, January 27, 2011, upon consideration of the evidence presented at the non-jury trial in the matter of the Commonwealth of Pennsylvania versus defendant, John Paul Klingel, this court finds as follows:

1. With regard to count I of the criminal information, disorderly conduct (18 Pa.C.S.A. §5503(a)(4)), this court finds defendant not guilty;
2. With regard to count II of the criminal information, harassment (18 Pa.C.S.A. §2709(a)(3)), this court finds defendant guilty.

The defendant is directed to appear for sentencing on March 22, 2011, at 9:00 a.m. in courtroom No.6, Monroe County courthouse, Stroudsburg, Pennsylvania. The Monroe County Probation Office is directed to conduct a presentence investigation and submit a report to the court prior to sentencing. The status of bail is continued.


source: Caselaw Access Project

author: MASSON, P.J.,

license: Public Domain

text:
    Zimmerman v. Alexander Andrew, Inc. t/d/b/a Falltech

      C.P. of Elk County,
    no. 2010-266.

      Peter Friday, for plaintiff.

      Edward Wertman, John Cromer and Stephanie Solomon, for defendant Alexander Andrew Inc.

      Paul Geer and Tara L. Mazduzak, for defendant United Electric Cooperative.

      Mark E. Mioduszewski, for defendant National Fuel.
    December 22, 2010
   MASSON, P.J.,

Pending before the court are the preliminary objections of defendants National Fuel Gas Company, et al., (hereafter National Fuel) and defendant United Electric Cooperative, Inc., in the nature of demurrers pursuant to Pa.R.C.P. 1028(a) (4) to the amended complaint filed on behalf of plaintiff James Zimmerman. Having considered the briefs submitted and the arguments of counsel provided on July 15, 2010, now, December 22,2010, it is ordered that the preliminary objections are sustained.

1) Preliminary objections to count V of the amended complaint filed on behalf of National Fuel Gas Company, et al.

A demurrer can only be granted when it is certain that no recovery is possible under the facts asserted in the complaint. Werner v. Plater-Zyberk, 799 A.2d 776 (Pa. Super. 2002). Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. Swisher v. Pitz, 868 A.2d 1228,1230 (Pa. Super. 2005). To be clear and free from doubt that dismissal resulting from preliminary objections is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Id.

In this case, the facts averred establish with certainty that the law would not permit recovery as to count V against National Fuel. As defendants proffer, plaintiff has failed to allege facts that would support a finding of negligence. To establish negligence, the plaintiff is required to demonstrate: (1) a legally recognized duty or obligation owed to him by National Fuel; (2) a breach of that duty; (3) a causal connection between the breach of duty and resulting injury; and (4) actual loss or damage suffered by the plaintiff. Reilly v. Tiergarten, Inc., 633 A.2d 208, 210 (Pa. Super. 1993). Plaintiff has failed to demonstrate several of these factors.

First, the plaintiff has failed to allege facts that support the conclusion that National Fuel had a duty to protect him from unforeseeable harm. “As a general rule the scope of duty any one person owes to another is limited to those risks that are reasonably foreseeable by the actor in the circumstances of the case.” Dudley v. USX Corp., 606 A.2d 916, 922 (Pa. Super. 1992). “That general duty is only modified when a special relationship exists between the parties, such as landowner and invitee.” Plaintiff has failed to show how the harm that occurred to him was reasonably foreseeable by National Fuel, even if National Fuel failed to take steps to remove the tree that was obstructing its gas lines. Although it may have been reasonable for National Fuel to foresee that their failure to remove the tree might cause problems or disruptions in its gas lines or that their failure might prompt an individual to attempt to remove the tree within the easement, it would not have been reasonable for National Fuel to foresee that an individual would choose to use a particular harness in a particular manner to climb the tree and subsequently fall from the tree. Furthermore, although plaintiff claims that defendants have a possessory interest in the property that would impose premises liability, plaintiff has failed to allege the exact nature of that interest.

Second, the plaintiff has failed to allege sufficient facts that could establish that any conduct on the part of National Fuel Gas was the proximate cause of plaintiff’s harm. In order to establish causation, a plaintiff must allege that the defendant’s breach was both the actual and proximate cause of the injury. Reilly, supra, at 210. “It is not sufficient...that a negligent act may be viewed, in retrospect, to have been one of the happenings in the series of events leading up to an injury. Even if the requirement of actual causation has been satisfied, there remains the issue of proximate or legal cause.” Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000). “Proximate cause, is a question of law, to be determined by the judge, and it must be established before the question of actual cause may be put to the jury.” Reilly, supra, at 210.

“Proximate causation is defined as a wrongful act which was a substantial factor in bringing about the plaintiff’s harm. A determination of proximate or legal causation therefore essentially regards whether the alleged negligence was so remote that as a matter of law, the defendant cannot be held legally responsible for the subsequent harm.” Eckroth, et. al. v. Pennsylvania Electric, Inc., 2010 WL 5132855 (Pa. Super. 2010) (quotations omitted). Section 433 of the Restatement of Torts, Second (1965) sets forth a number of considerations important in determining whether negligent conduct is a substantial factor: (1) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (2) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (3) lapse of time. See Id.

Clearly, in this case, a number of other factors significantly contributed in producing the harm — plaintiff’s decision to climb the tree and cut it down, plaintiff’s decision to use a particular harness to secure him in the tree and that harness’s alleged defects. Furthermore, plaintiff offered no timeline that would indicate that his decision to climb the tree was in immediate response to National Fuel’s failure to remove the tree. Finally, no force worked in continuous and active operation up to the time of harm. The causal chain of events leading to the plaintiff’s injury is therefore too remote to conclude that the alleged action of National Fuel was a substantial factor in bringing about the injury.

Plaintiff claims that this case is analogous to the facts of Ford v. Jeffries, where the Pennsylvania Superior Court found that reasonable minds could differ as to whether the defendant’s conduct was a substantial factor in causing the harm where the defendant allowed his rental property to fall into a state of disrepair and created a fire hazard. 379 A.2d 111 (Pa. 1977). The house caught on fire twice, the second time spreading to the plaintiff’s home. This case, however, is clearly distinguishable from the facts at hand. In Ford, the defendant’s failure to maintain his premises caused a fire in the adjoining property. Here, however, plaintiff is not alleging that National Fuel’s failure to maintain the tree caused the plaintiff to fall, but that National Fuel’s failure to maintain its gas lines and remove the tree within the gas line right-of-way caused the plaintiff to climb the tree from which he subsequently fell.

Plaintiff’s case is more similar to the facts in Eckroth, et. al. v. Pennsylvania Electric, Inc., where Penelec’s negligent termination of electric power was alleged to be the cause of a house fire 48 hours later. 2010 WL 5132855 (Pa. Super. 2010). The Superior Court affirmed the court of common pleas’ grant of summary judgment in favor of defendant Penelec, and held that Penelec’s termination was not the proximate cause. The court reasoned that while it was foreseeable that a resident might light a candle to illuminate a dark house, it was unforeseeable that a resident would leave a candle with an exposed flame unattended overnight in a precarious location. Similarly, in the case at hand, National Fuel’s alleged breach was merely the underlying reason for plaintiff’s actions that ultimately caused his injuries.

It is simply too far attenuated to claim that National Fuel’s failure to maintain a tree within its gas line right-of-way caused the tenant of the property to solicit the plaintiff to remove the tree, caused the plaintiff to climb the tree, use a purportedly defective safety harness, and finally, to fall out of the tree when the harness failed. National Fuel did not in any way control the plaintiff’s actions, determine how he climbed the tree or how he chose and used the safety harness. Consequently, plaintiff’s injuries were entirely too remote and extraordinary for a finding of proximate cause.

As it is certain that the plaintiff has averred no facts that would permit recovery, defendant National Fuel’s preliminary objections are sustained and count V of plaintiff’s complaint is dismissed.

2) Preliminary objections to Count IV of the amended complaint filed on behalf of United Electric Cooperative, Inc.

The preliminary objections to count IV of the amended complaint submitted on behalf of United Electric Cooperative, Inc. (hereafter United Electric) mirrors the preliminary objections filed on behalf of National Fuel, and for the reasons stated above, the court finds that the plaintiff has failed to allege any facts that might support a recovery against or from United Electric.

Plaintiff has failed to allege facts to support a conclusion that United Electric had a duty to protect the plaintiff from unforeseeable harm, has failed to allege the exact nature of any possessory interest that would result in premises liability, and has failed to allege any facts to establish that any act or failure to act of United Electric was the proximate cause of the injuries alleged by the plaintiff.

As it is certain that the plaintiff has averred no facts that would permit recovery, defendant United Electric’s preliminary objections are sustained and count IV of plaintiff’s complaint is dismissed.


author: MELLON, J.,

text:
    Cohen v. St. Mary Medical Center

      C.P. of Bucks County,
    no. 2008-00908.

      Judy Greenwood, for plaintiffs.

      Peter J. Hoffman, for defendants.
    February 2, 2011
   MELLON, J.,

Plaintiff Gerald Cohen (Cohen) appeals from this court’s order of November 9,2010 (docketed November 10,2010), which granted defendants St. Mary’s Medical Center (Medical Center) and Chester Ganczarz’s (Ganczarz) motion for summary judgment. Judgment was granted after oral argument on November 4, 2010. Cohen has filed a notice of appeal to the Pennsylvania Superior Court. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are not in dispute. Cohen was an employee of the Medical Center in its patient transport department. On July 10, 2005, Cohen was injured while transporting a patient at the Medical Center. Cohen injured his left forearm, elbow, and hand in the accident.

Cohen did not immediately seek medical treatment but waited a day to see if the pain would abate. When the pain did not subside, Cohen presented to the emergency room at the Medical Center. He complained of elbow pain and decreased range of motion. Cohen was examined, released, and instructed to receive further treatment. Cohen received treatment for his injury at the Triad, a medical care facility available only to Medical Center employees. After four months, the Medical Center recommended that Cohen contact Dr. Cautilli, an orthopedic surgeon, for continued treatment. Dr. Cautilli recommended, among other treatments, occupational therapy.

The occupational therapy began in November, 2005 and was provided by Ganczarz, an occupational therapist and employee of the Medical Center. The therapy took place at the Medical Center. Cohen participated in therapy without complaint from November, 2005 until March, 2006.

On March 2, 2006, Cohen suffered injuries to the neck and shoulder, allegedly from therapy provided by Ganczarz. While attempting to treat his elbow, Cohen asserts Ganczarz excessively manipulated Cohen’s shoulder and neck. This over manipulation applied excessive pressure to the neck and shoulder, which caused the injury.

In April, 2006, Cohen filed a claim with the Bureau of Workers’ Compensation. This claim included both the July 2005 elbow injury and the March 2006 neck and shoulder injury. Cohen sought full workers’ compensation benefits for both injuries. In April 2007, the Medical Center and Cohen entered into a stipulation which stated in relevant part:

The parties stipulate that the claimant [Gerald Cohen] sustained a work related injury on July 10, 2005. Defendant [Medical Center] asserts that the July 10, 2005 injury was in the nature of left lateral epicondylitis which has resolved and ceased in its entirety. The parties also stipulate that Claimant sustained a work related injury on March 2, 2006. Defendant asserts that the March 2,2006 injury was in the nature of C6-7 radiculopathy on the left.

This stipulation resolved, with prejudice, the pending claim petition. As a result, Cohen received workers’ compensation benefits for both the July 2005 and March 2006 injuries.

Asrequiredby Section449 ofthe Pennsylvania Workers’ Compensation Act (PWCA), a hearing was held on July 25, 2008 to approve the release agreement by stipulation (Release) entered into by the parties. In relevant part, the Release agreement provided for the following:

defendant agrees to provide medical coverage for two years from the date that the instant agreement is approved by the Workers’ Compensation Judge at hearing...The parties are entering into this agreement to settle this case representing the payment of $65,000 subject to the attorney fee herein and two years of medical coverage subject to the terms herein...After expiration of the two year period of medical coverage, defendant will have a compromise and release of all liability relative to the work injuries of 7/10/05 and 3/6/06 and all relevant sequela.

This agreement applied to both Cohen’s injury of the “left lateral epicondylitis and C6-7 radiculopathy on the left.”

In an opinion and order dated July 28, 2008, the workers’ compensation judge found that the agreement conformed to the requirements of the PWCA and approved the release. The judge further found that the July 2005 and March 2006 injuries were worked related. Finally, the judge concluded that Cohen “understands the full legal significance of each provision of the Agreement.” This agreement conclusively resolved any and all outstanding claims related to the two work related injuries.

The instant appeal arises from Cohen’s attempt to recover twice for the same work related injury. On January 17, 2008, Cohen filed a complaint alleging negligence by the Medical Center and Ganczarz that caused his March 2006 injury. The defendants filed an answer and new matter on February 25,2008. Subsequently, the defendants filed a motion for summary judgment alleging that as a matter of law Cohen was barred from recovery because the PWCA provides the exclusive relief in the event of a work-related injury and, in the alternative, the Release discharged all liability relative to the March 2006 injury. Oral argument was held on November 4, 2010.

Defendants contended that Cohen’s claims are barred as the PWCA provides exclusive relief in the event of a work-related injury. Plaintiff has admitted both in a judicial document, the claim petition, and in the release, that the March 2006 injury was work related.

Consequently, defendants assert, Cohen is estopped from contending that the injury is not work related. Section 303 of the PWCA provides “in an injury in the course of employment...the liability of an employer under this act shall be exclusive and in place of any and all other liability to such employee.” Section 205 of the PWCA extends the exclusivity principle to fellow employees. Therefore, Cohen is barred as a matter of law from asserting a negligence suit against defendants.

Additionally, the release Cohen signed discharged all liability relative to the March 2006 injury. The language of the release is clear, “defendant will have a Compromise and Release of all liability relative to the work injuries of 7/10/05 and 3/6/06 and all relevant sequela.” Even if Cohen discovered an exception to the exclusivity principle, the plain language of the release forestalls any liability.

Cohen admitted that he received workers compensation benefits for both the July 2005 and March 2006 work related injuries. According to Cohen, the dual capacity doctrine circumvents the exclusivity provision of the PWCA and allows for the present suit. However, the dual capacity doctrine cannot apply if the injuries are deemed work related. Additionally, Cohen contended that the Release did not bar suit because the Release was only intended to resolve the workers’ compensation claims. Cohen presented no evidence that the terms of the release are vague; absent such, Cohen’s subjective intentions are irrelevant. After careful consideration of the facts and law, the court determined that both the release and the exclusivity provisions of the PWCA barred suit; accordingly summary judgment in favor of the defendants was granted.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Pursuant to an order of court dated November 9, 2010, granting defendants Medical Center and Ganczarz’s motion for summary judgment, and Pennsylvania Rule of Appellate Procedure 1925(b), Cohen filed a concise statement of matters complained of on appeal on December 26, 2010. The matters complained of on appeal as alleged by Cohen are as follows:

1. The court erroneously entered summary judgment for defendants and against plaintiffs.
2. The court failed to apply, or properly apply, the dual capacity doctrine which would have avoided the exclusivity of the Workers’ Compensation Act.
3. The court should not have applied, or improperly applied, the doctrine of collateral estoppel.
4. The court should not have found Chester Ganzcarz immune from suit as a fellow employee.
5. The court should not have found that the compromise and release in the workers’ compensation matter was intended to, or did, accomplish a release favoring defendants in this civil action.
6. The court should not have determined that the workers’ compensation judge had the authority to approve a settlement resolving this civil action or its claims.
7. Such other errors as may only be discovered upon receipt of the court’s opinion setting forth the basis for its decision.

Cohen’s matters complained of on appeal can be consolidated and restated into three questions: 1) whether the trial court erred or abused its discretion by concluding that Cohen was estopped from asserting that the March 2006 injury was not work related; 2) whether the trial court erred or abused its discretion in determining that the dual capacity doctrine is inapplicable if the injury is work related; and 3) whether the trial court erred or abused its discretion by concluding that the release waived all claims against the defendants and barred the present suit.

DISCUSSION

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, “after the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.” Summary judgment is proper when there is no genuine issue of material fact that could be established by additional discovery and the moving party is entitled to judgment as a matter of law. The moving party has the initial burden of proving the nonexistence of any issue of genuine material fact. Once the moving party has met its burden, the non-moving party must set fourth specific facts showing that there is a genuine issue for trial. The non-moving party must rely on depositions, answers to interrogatories, admissions, or affidavits, to evidence its assertion that there is a genuine issue for trial and may not merely rely upon the averments contained in the pleadings. Failure of a non-moving party to adduce sufficient evidence on an issue essential to the cause of action and on which it bears the burden of proof establishes the entitlement of the moving party to summary judgment. In weighing the evidence, the court must examine the record in the light most favorable to the non-moving party and any doubt must be resolved against the moving party. Applying the above standard to the case sub judice, the court concluded that there was no genuine issue of material fact and defendants were entitled to a judgment as a matter of law.

I. THE COURT PROPERLY GRANTED SUMMARY

JUDGMENT BECAUSE COHEN IS ESTOPPED FROM ASSERTING THE MARCH 2006 INJURY WAS NOT WORK RELATED AND THE PWCA PROVIDES THE EXCLUSIVE REMEDY FOR WORK RELATED INJURY.

A. Collateral Estoppel

A grant of summary judgment was appropriate because Cohen is estopped from asserting that the March 2006 injury was not work related and the PWCA provides the exclusive remedy for work related injury. The doctrine of collateral estoppel “forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment.” Summary judgment is properly granted on grounds of collateral estoppel if there is no genuine issue of material fact which the pleadings, depositions, answers to interrogatories, admissions on file, and supporting affidavits show that the moving party is entitled to a judgment as a matter of law.

It is well-settled law that the findings of a workers’ compensation judge preclude the plaintiff-employee from re-litigating the same issue in a common law tort action. Specifically, a finding that an injury was work-related prohibits an employee from later attempting to litigate the work-relatedness of that injury. To have the prohibitory effect, a finding of work-relatedness must be part of a final adjudication and have been necessary to that determination. A final adjudication is a decision by the workers’ compensation judge that is not appealed.

In adjudicating the claim petition filed by Cohen, a workers’ compensation judge, after a hearing, specifically found that the March 2006 injury was a “work injury.” The judge also approved a stipulation and release which expressly stated that the March 2006 injury was work related. Finally, Cohen claimed that the March 2006 injury was work related and he received benefits for that injury.

These facts evidence that application of collateral estoppel is appropriate. First, the work-relatedness of the March 2006 injury was actually litigated through the release and at the July 25, 2008 hearing. Second, a determination of work-relatedness was necessary to the final judgment, i.e. the award of benefits pursuant to the stipulation and release, because without that finding the issuance of benefits would not have occurred. Finally, the decision of July 25, 2008 was a final adjudication because Cohen did not appeal the determinations of the workers’ compensation judge. To allow Cohen, years later, to re-litigate a previously adjudicated issue not only undermines the authority of the workers’ compensation judge, but contradicts the doctrine of collateral estoppels. Accordingly, Cohen is estopped form asserting that the March 2006 injury was not work related.

B. PWCA’s Exclusivity Principle and the Dual Capacity Doctrine

The PWCA provides the exclusive remedy to an employee for a work related injury. Section 303 of the PWCA provides in pertinent part:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury...

Section 205 of the PWCA extends the exclusivity provision to fellow employees and states in pertinent part:

If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled, killed, except for intentional wrong.

Courts have unequivocally interpreted the aforementioned language to mean that the PWCA provides the exclusive basis for compensation for a work related injury. The formulation of the exclusivity principal is consistent with the concept that in exchange for the benefit of strict liability, the employee surrenders all other rights of action.

In the case sub judice, Cohen admitted and a workers’ compensation judge found that March 2006 injury was work related. As such, Cohen applied for and received workers’ compensation benefits. These benefits are the exclusive remedy available to Cohen for his injury pursuant to PWCA Section 303(a). Further, as an employee of the Medical Center, Ganczarz is shielded from liability pursuant to PWCA Section 205. Cohen’s effort to recover twice, through the PWCA and through tort, is expressly prohibited by the terms of the PWCA and case law.

Cohen attempts to avoid the exclusivity provisions of the PWCA by contending that the dual capacity doctrine applies, which would make the Medical Center and Ganczarz amendable to suit. Cohen’s reliance on the dual capacity doctrine is misplaced. Under the dual capacity doctrine, an employer who is normally shielded from tort liability by the exclusive remedy of the act may become liable if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer. Case law has limited the doctrine’s application exclusively to situations where the injury occurs on the employer’s premises but the employee was not acting within the scope of his employment or receiving a benefit because of employment.

Cohen stipulated that the March 2006 injuiy was work related. This admission is fatal to Cohen’s dual capacity claim because the doctrine only allows for civil suit if the injuries, although sustained on the employer’s premises, were extraneous to employment. In other words, the doctrine allows an employee to challenge the work relatedness of an injury. An injury is not extraneous to employment if it is work related. Cohen’s admission that his injury was work related prohibits him from contesting that fact and mutes whatever application the dual capacity doctrine may have had to this case. The dual capacity doctrine exists to allow an employee to challenge the exclusivity provisions by asserting that an injury was not work related despite the injury occurring on the premises of the employer. The doctrine was not developed to provide an opportunity for an enterprising litigant to recover both through the Workers’ Compensation system and by an action in tort.

Moreover, the dual capacity doctrine does not apply when the compensable injury occurred in the course of treatment prescribed by the employer. When an employer directs an employee’s treatment because he is an employee, the treatment is within the scope of employment and the exclusive remedy available to the employee is the PWCA.It is inconsequential whether the employer prescribed treatment occurs at a public or an employee only facility.

After his July 2005 injury, Cohen was treated at the Triad, a facility set up exclusively for Medical Center employees. After four months of treatment at the Triad, the Medical Center recommended continued treatment with Dr. Cautilli. The subsequent treatment with Dr. Cautilli led to the March 2006 injury. These facts illustrate that Cohen’s treatment was directed by the hospital because Cohen was an employee. The dual capacity doctrine does not apply in such circumstances. Further, Cohen presented no evidence that his treatment at the Triad or with Dr. Cautilli was unrelated to his employment relationship with the Medical Center. Accordingly, the dual capacity doctrine is inapplicable and Cohen is barred from bringing suit pursuant to the exclusivity provisions of the PWCA.

II. THE COURT PROPERLY GRANTED SUMMARY JUDGMENT BECAUSE THE RELEASE WAIVED ALL CLAIMS AGAINST THE DEFENDANTS.

Summary judgment was appropriately granted because Cohen’s claims are barred by the release. A release is interpreted according to general contract principles. Where a contract, such as a release, contains clear and unambiguous terms the court should give effect to the plain language of the agreement. If the terms of the release are clear and unambiguous, a court need only examine the writing itself to give effect to the parties understanding and should not modify the plain meaning of the words. Only where the terms are shown to be vague or ambiguous should the court look to extrinsic evidence to determine the ambiguous terms meaning.

The language of the release is clear and unambiguous. The release states, “defendant will have a Compromise and Release of all liability relative to the work injuries of 7/10/05 and 3/6/06 and all relevant sequela.” The release was intended to resolve all claims against both the Medical Center and Ganczarz with respect to the July 2005 and March 2006 injuries. No other interpretation gives effect to the plain language of the release. This interpretation is buttressed by the proceeding clause that defines the extent of liability, “a two year period of medical coverage.” Once that medical coverage expires, the Medical Center and Ganczarz have a “...release of all liability” relative to the two work injuries.

Further, Cohen presented no evidence that the terms of the release were vague. Cohen’s evidence only established that he did not intend to release all claims against the Medical Center and Ganczarz. Cohen’s subjective intention is in immaterial when the terms of the release are not ambiguous and their meaning can be ascertained from the writing itself. Because the plain language of the release resolves all claims against the Medical Center and Ganczarz, there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law.

Accordingly, the court granted summary judgment.

CONCLUSION

For the foregoing reasons, this court properly granted defendant Medical Center and Ganczarz’s motion for summary judgment by order of November 9, 2010.

      . “Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process.” Com. v. Seibert, 799 A.2d 54, 62 (Pa.Super. 2002).

      . Interrogatories of defendants St. Mary Medical Center and Chester Ganczarz Directed to Plaintiff’s and Plaintiff’s Responses, ¶11 [hereinafter Interrogatories].

      . Motion for summary judgment of defs., Exhibit H, Workers Compensation Claim Petition, ¶4.

      . PI. compl., ¶8.

        . Id.

        . Id.

      . Id. at ¶¶ 8-9.

      . Id.

      . PL Response to defs. motion for summary judgment; Exhibit A, ¶3.

      . Id.

      . Id. at ¶¶ 6-7, 10.

      . Id. at ¶¶ 9-10.

      . Id.

      . Id. atffl 14-16.

      . Id. at ¶¶ 14.

      . Id. at ¶¶ 14-15.

      . Motion for summary judgment of defs., Exhibit C, claim petition.

      . Id. *¶1.

      . Id. at|4.

      . Motion for summary judgment of defs., Exhibit F, Stipulation ¶2.

      . Id. at|7.

      . Id. a^3.

      . Motion for summary judgment of defs., Exhibit I, 7/25/2008 Compromise and Release Hearing.

      . Motion for summary judgment of defs., Exhibit H, compromise and release ¶¶ 10, 15,18.

      . Id. att4.

      . Motion for summary judgment of defs., Exhibit I, 7/25/2008 compromise and release hearing ¶¶ 6-7.

      . Id. at ¶4 (March 6 was not the date of injury, but date of first complaint by Cohen).

      . Id. at ¶6.

      . 77 P.S. s 72.

      . Heath v. Church friend Chicken, Inc., 546 A.2d 1120, 1121 (Pa. 1988), citing Lewis v. School District of Philadelphia, 538 A.2d 865, 869 (Pa. 1988).

      . Pa.R.C.P. s 1035.2(1).

      . Id.', Donegal Mutual Insurance Co. v. Fackler, 835 A.2d 712, 715 (Pa. Super 2003).

      . Erie v. Patriot-News Co., 674 A.2d 1038, 1041 (Pa. 1996).

      . Hagans v. Constitution State Serv. Co., 687 A.2d 1145, 1157 (Pa. Super 1997) (quoting Samarin v. GAF Corp., 571 A.2d 398, 402 (Pa. 1989).

      . Washington Federal Savings & Loan Association v. Stein, 515 A.2d 980, 981 (Pa. 1986).

      . Young v. PeenDOT, 744 A.2d 1276, 1278 (Pa. 2000).

      . Id.

      . Grant v. GAF Corp., 608 A.2d 1047, 1054 (Pa. Super 1990).

      . Day v. Volkswagenwerk Aktiengesellschaft, 464 A.2d 1313 (Pa. Super 1983).

      . Grant, 608 A.2d at 1056-57; See also Yonkers v. Donora Borough, 702 A.2d 618, 620 (Pa.Cmwlth 1997).

      . Kohler v. McCroy Stores, 615 A.2d 27, 33-34 (Pa. 1992).

      . Id.

      . Id.

      . Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).

      . 77 P.S. 481(a).

      . 77 P.S. 72.

      . Lewis v. School District of Philadelphia, 538 A.2d 862, 866 (Pa. 1988).

         Id.

      . Kline v. Arden H. Verner Co., 469 A.2d 158, 159-60 (Pa. 1983).

      . Kincel v. Com. Dept. of Transp., 867 A.2d 758, 766 (Pa.Cmwlth. 2005).

      . Heath v. Church Fried Chicken, Inc. 546 A.2d 1120, 1121 (Pa. 1988), citing Lewis v. School District of Philadelphia, 538 A.2d 862, 869 (Pa. 1988); Synder v. Pocono Medical Center, 690 A.2d 1152, 1155 (Pa. 1997); Heimbach v. Heimbach, 584 A.2d 1009, 1010-11 (Pa.Super. 1990).

      . Heimbach, 584 A.2d at 1010-11.; Tatrai v. Presbyterian University Hospital, 439 A.2d 1162, 1165-66 (Pa. 1982).

      . Id.

      . Heimbach, 584 A.2d at 1010.

      . Snyder, 690 A.2d at 1153-54.

      . Budzichowski v. Bell Telephone Co. of Pa., 469 A.2d 111 (Pa. 1983).

        . Snyder, 690 A.2d at 1154.

      . Id.

      . Ford Motor Co. v. Buseman, 954 A.2d 580 (Pa.Super. 2008).

      . Buttermore v. Aliquippa Hospital, 561 A.2d 733 (Pa. 1989).

        . McMahon v. McMahon, 612 A.2d 1360, 1364 (Pa.Super. 1992).

      . Id.

      . Pallante v. Harcourt Brace Jovanovich, Inc., 629 A.2d 146, 150 (Pa. Super. 1993). The Supreme Court’s decision in Maloney v. Valley Medical Center Facilities, Inc., 984 A.2d 478 (Pa. 2009), disapproved of Pallante’s logic only where the release expressly reserved the right to maintain a claim against an agent while releasing the institutional defendant. The court explained that in such a situation the per se rule of Pallante was inappropriate and a plaintiff should have the right to effectuate his or her intention. As the release subjudice contained no reservation, Pallante is still applicable.

      . McMahon, 612 A.2d at 1364.


author: GILMAN, J,

text:
    In re L.S.

      C.P. of Bucks County,
    no. 2010-9111.

      Brad M. Jackman, for

      Sarah Tucker, guardian ad litem.

      Daniel M. Keane, for

      Dawn E. Padanyi, for
    February 9, 2011
   GILMAN, J,

INTRODUCTION

Bucks County Children and Youth Social Services agency (hereinafter referred to as the “agency”) has appealed ourNovember 30,2010 decree denying its petition to terminate the parental rights of A.C.S. (hereinafter referred to as “mother”), the natural mother of L.S. (hereinafter referred to as “child”). A hearing was initially conducted on August 31, 2010, and upon agreement of all counsel, we entered an order dated September 1, 2010 continuing the hearing until November 30, 2010, when additional testimony was to be presented. Thereafter, a lengthy evidentiary hearing was held on November 30, 2010.

BACKGROUND

The relevant facts and procedural history of this case are as follows: L.S., a female, was bom to mother on S eptember27,2008. Mother testified that child was detoxed with the use of morphine after birth. Mother explained that this was necessary because she was using Percocet and marijuana as of the time when L.S. was bom (N.T. 8/31/2010, pp.4-5). L.S. was removed from mother’s home by the agency three (3) days after she was discharged from the hospital, which was approximately one (1) month after she was bom. Mother’s testimony indicates her belief that there was a safety plan put in place by the agency, prior to the child’s removal, which stipulated that mother would have custody of L.S. and that mother’s parents would serve as supervisors. However, shortly after child was discharged from the hospital to mother’s home, mother received a phone call from her caseworker stating that the agency had received an anonymous tip regarding drug use and violence in the home, and that, accordingly, child was being removed. (N.T. 8/31/2010, p.8). Child was in one foster home briefly and has resided in her present foster home since May, 2009. (N.T. 11/30/2010, p.31).

On June 10, 2010, the agency filed a petition to terminate mother’s parental rights and a hearing was fixed for August 31, 2010. The agency pursued termination under 23 Pa.C.S. §2511(a)(2), (5), and (8), which provides in pertinent part as follows:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(8) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.

APPELLANT’S STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

Appellant agency filed a notice of appeal, accompanied by a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(a)(2), which we repeat verbatim, as follows:

1. The learned trial judge erred in failing to find that appellant met its statutory burden in proving that grounds exist to involuntarily terminate the parental rights of A.S.
2. The learned trial judge erred by failing to find that the termination of parental rights of A.S. best serves the needs and welfare of L.S.
3. The learned trial judge erred by entering a decision that was against the weight of the evidence.
4. The learned trial judge erred by abusing his discretion.

STANDARD OF REVIEW

In a termination of parental rights hearing, our duty is to determine whether the statutory grounds for termination of parental rights have been met and, if so, to then determine whether the termination of parental rights serves the best interest of the child. 23 Pa.C.S. §2511.

As the party seeking termination, the agency bore the burden of establishing by clear and convincing evidence that grounds existed for terminating mother’s parental rights. Clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue. In re Z.P. 994 A.2d 1108, 115-116 (Pa. Super. 2010)(intemal citations omitted), In re J.D.W.M., 810 A.2d 688, 690 (Pa. Super. 2002).

In cases involving termination of parental rights and an appeal from a decree of the trial court, the standard of review employed by the appellant courts is limited to determining whether the decision of the trial court is supported by competent evidence, and whether the trial court gave adequate consideration to the effect of such a decree on the welfare of the child. As the finder of fact, the trial court is the sole determiner of the credibility of witnesses, and all conflicts in testimony are to be resolved by the finder of fact. Our findings are entitled to reasonable deference and absent an abuse of discretion, an error of law, or insufficient evidentiary support, the decree must stand. Id. at 1115-1116 (internal citation omitted).

Appellate courts employ a broad, comprehensive review of the record in order to determine whether a trial court’s decision is supported by competent evidence, and will uphold a decision if any proper basis exists for the result reached. If the trial court’s findings are supported by competent evidence, the appellate court must affirm the trial court’s decision, even if the record could support an opposite result. Id., In re R.L.T.M., 860 A.2d 190, 191-192 (Pa. Super. 2004).

DISCUSSION

The following legal principles are implicated when the trial court is called upon to decide whether or not to grant a petition to involuntarily terminate a parent’s rights:

“[T]he complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take, carrying with it great emotional impact for the parent and the child.” In re C.P 901 A.2d 516, 520 (Pa. Super. 2006). “Because of the importance placed on the family unit, governmental intrusion into the family, and disruption of the parent-child relationship, is warranted only in exceptional circumstances,” and “only upon a showing of clear necessity.” Even when such intrusion is necessary to protect the children, every possible effort must be made to reunite the family. In addition, “all circumstances must be considered when analyzing a parent’s performance or non-performance of parental obligations. A parent’s performance must be measured in light of ‘what would be expected of an individual in circumstances which the parent under examination finds himself.’” In re Matsock, 611 A2.d 737, 742-743 (Pa. Super. 1992) (internal citations omitted).

To reach a determination, the initial focus of the termination proceeding is on the conduct of the parent and whether his or her conduct justifies termination of parental rights pursuant to the pertinent statutory provisions. In re B.L.L. 787 A.2d 1007 (Pa. Super. 2001). If the statutory grounds for termination are established, then the welfare of the child becomes the court’s paramount consideration. Courts must reflect on whether termination will best serve the child’s needs and welfare. 23 Pa.C.S. §2511(a) and (b).

Section §2511(b) focuses on whether termination of parental rights would best serve the developmental, physical, and emotional needs and welfare of the child. In In re C.M.S., 884 A.2d 1284, 1287 (Pa. Super. 2005), the Superior Court stated, “Intangibles such as love, comfort, security, and stability are involved in the inquiry into the needs and welfare of the child.” Appellate courts have instructed that “the trial court must also discern the nature and status of the parent-child bond, with utmost attention to the effect on the child of permanently severing that bond.” Id. “[T]he extent of the bond-effect analysis necessarily depends on the circumstances of the particular case.” In re K.Z.S. 946 A.2d 753, 763 (Pa. Super. 2008). In performing a “best interests” analysis:

The court should also consider the importance of continuity of relationships to the child, because severing close parental ties is usually extremely painful... The court must consider whether a natural parental bond exists between child and parent, and whether termination would destroy an existing, necessary and beneficial relationship. Most importantly, adequate consideration must be given to the needs and welfare of the child. Id. At 760 (internal citations omitted). In re I.J. 972 A.2d 5, 12 (Pa. Super. 2009)

Parental responsibilities encompass affirmative duties. They require continuing interest in the child and a genuine good faith interest and effortto maintain communication and association with the child, even in difficult circumstances. In re Z.P., supra. “...[A] parent’s basic constitutional right to the custody and rearing of his or her child is converted, upon the failure to fulfill his or her parental duties, to the child’s right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment.” In re B.N.M. 856 A.2d 847, 856 (Pa. Super. 2004), appeal denied, 872 A.2d 1200 (Pa. 2005). The particular circumstances of a case must be considered as well as all explanations offered by the parent facing termination of his or her parental rights, to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination. Id.

In this case, pursuant to §2511 (a)(2), the agency was required to prove by clear and convincing evidence mother’s repeated and continued incapacity, abuse, neglect or refusal to provide child with essential parental care, control or subsistence necessary for physical or mental well-being, and that the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by mother. Similarly, under (a)(5) the agency was required to demonstrate clearly and convincingly, that mother cannot or will not remedy the conditions that led to the removal of L.S., within a reasonable period of time. We determined that the agency did not offer clear and convincing evidence to support termination under either subsection.

The following pertinent facts were developed at the August 31, 2010 and November 30, 2010 evidentiary hearings: The record reflects that the agency’s concerns regarding mother’s parenting stemmed from issues related to housing, drug use, and mental health. Mother has lived with her parents and intends to continue doing so for the foreseeable future (N.T. 11/30/2010, p. 136). During the hearing, mother was repeatedly questioned about and repeatedly testified as to her parents’ financial difficulties pertaining to potential foreclosure upon her parents’ home. We found mother testified credibly and informatively as to alternatives which might remedy the situation, either providing for the opportunity to remain in the current family home or to relocate to another residence provided by a family friend (N.T. 8/31/2010, pp. 33-34, NT. 11/30/2010, pp. 14-15, 33, 62-63, 122-123). The fact that the family has faced difficult economic times is, unfortunately, far from unique at the present time, and does not represent clear and convincing evidence that mother cannot provide safe and stable housing for L.S., her child.

Mother testified that she has been drug-free since March of 2010. Although addressed throughout the record, when asked specifically what resources are currently in place to assist mother in maintaining her sobriety, she testified to attendance at NA and AA meetings, the support of family and friends, her caseworker with the Bucks County Drug andAlcohol Commission (N.T. 11/30/2010, pp. 130-131), and a treatment plan to be established through Livingren, a drug and alcohol facility. The agency made countless efforts during the hearing to have the trial court find that the mother has intentionally avoided drug testing. The agency also argued that on certain visitations with child, when mother was not feeling well, we should presume that, she was using drugs. We found mother’s testimony with regard to these issues, wherein she denied intentionally avoiding drug testing, and she denied drug usage at the time of visitations with her daughter, to be sufficiently credible so as to rebut the agency’s position.

The focus of the testimony elicited by the agency as to mother’s mental health was on mother’s efforts to participate in and complete a mental health and psychiatric medication evaluation during the three (3) month period of time between the two (2) hearing dates in 2010. (N.T. 11/30/2010, pp. 5-10, 74-91, 146-150). While the agency was anxious to point out that as a matter of law, the court is not to consider mother’s efforts to rectify parenting deficiencies which take place subsequent to her being served with the petition (presumably in June, 2010), the agency’s examination of mother at the second hearing on November 30, 2010 substantially focused on the mental health evaluation which mother had not completed during that time period.

When the initial hearing was continued on August 31st, 2010, the agency noted that, statutorily, mother’s efforts subsequent to service of the termination petition were not relevant to the merits of the petition. We strongly cautioned mother at that time that she should not assume that her parental efforts during the period between hearings guaranteed her future success on the merits. At the same time, we urged her to take full advantage of the period of time being afforded her, to address mental health, drug and/or alcohol, and living arrangement issues. (N.T. 8/31/2010, pp. 38-40).

We recognized on August 31, 2010, as well as on November 30, 2010, that 23 Pa.C.S. §2511(b) states “... The court shall not consider any efforts by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.” While the agency has not claimed that we erred in considering such efforts by mother, and has therefore waived any such claim, we note that our decision denying the agency’s petition was not based on any remedial efforts made by mother which were first initiated subsequent to her receiving notice of the agency’s petition to terminate her parental rights as to child.

At the second hearing, mother testified extensively as to why the date of November 24,2010, previously scheduled as the evaluation date by Penndel Mental Health Clinic, was rescheduled due to a conflict for the mental health professional conducting the evaluation. The delay was not due to fault on the part of mother (N.T. 11/30/2010, pp. 5-7, 125). The appointment was rescheduled to January 20, 2011 (N.T. 11/30/2010, p. 125).

Therefore, with regard to the issue of mother’s mental health, we are guided by the case law which instructs us to look to the particular circumstances of a case, and to consider all explanations offered by the parent facing termination of his or her parental rights to determine if the evidence, in light of the totality of the circumstances, clearly warrants the involuntary termination. In re B.N.M., supra. We found that mother testified credibly as to her persistent efforts to establish and maintain the counseling and mental health evaluations that the agency required. This was true throughout child’s time in foster care, and was not just initiated by mother between the two hearing dates for this termination proceeding in the Summer and fall of 2010. Mother’s testimony as to the distance she traveled to complete her obligations, and her efforts in establishing and following up with various appointments, was credible in light of all of her circumstances.

The requirements contained within subsections (a)(2) and (a)(5) of §2511, then, were not established clearly and convincingly by the agency to support its petition to terminate. The evidence proffered by the agency did not establish that mother continued to be incapable or neglectful as child’s parent, and there was absolutely no claim that she was abusive or that she refused to perform her parental obligations. Similarly, there was no credible evidence that that conditions and causes of mother’s alleged parental incapacity or neglect cannot or will not be remedied by her.

The agency also invoked subsection (a)(8) in its petition to terminate mother’s parental rights. Pursuant to (a)(8), the agency is required to clearly and convincingly establish three (3) elements: (1) child was removed from mother’s care for at least twelve (12) months; (2) the conditions that led to the removal or placement of child continue to exist; and (3) termination of mother’s parental rights would best serve the needs and welfare of child. As is true with subsection (a)(5), we find that the agency did not meet its burden of demonstrating by clear and convincing evidence that the second and third elements have been satisfied.

Certainly, the first element was proven, since child has been removed by the court from the care of mother for well over twelve (12) months. As to the second element, for all of the above-mentioned reasons, we found that the agency did not prove a parental disqualifying housing issue or a credible present and continuing drug and alcohol issue with regard to mother which would warrant termination of her parental rights. Additionally, we found mother credible in her testimony regarding consultation and treatment for her mental health issues.

We recognize that application of subsection (a)(8) considers whether reunification between mother and child can be contemplated to be “imminent” as of the time of the termination hearing. The Superior Court has recognized the harshness of this subsection in circumstances where parents have made significant strides, yet the conditions that led to removal of a child still exist. In In re I.J., 972 A.2d 5 (Pa. Super. 2009), the trial court credited the parents as having made significant strides toward remedying the conditions that had led to the child’s removal, however, it was clearly a parental remedy of “some” but by no means “all” of such conditions. In that case, the Superior Court, reversing the trial court, held that the record “unambiguously reflects that all of the conditions have not been remedied and that reunification between IJ. and her parents remains untenable after nearly two years of foster care.” Accordingly, the Department of Human Services was found to have met its burden. In contrast, the record in the present case cannot be found to be unambiguous with regard to rectifying conditions which led to child’s removal. In fact, the record here points to mother substantially, if not completely, remedying all parental conditions which led to child’s removal in the first place; most importantly, drug abuse.

Finally, turning to the third element of subsections (a) (8), and (a)(5), the agency is required to demonstrate that the termination of mother’s rights would best serve the needs and welfare of L.S. The agency failed to do so.

We heard testimony from Kristina DeCesare, who is employed as an intensive services caseworker for the agency andhas been assigned to L.S. ’s case since September 2009 (N.T. 11/30/2010, pp. 11-12). Ms. DeCesare testified that she has had occasion to observe some of mother’s visits with child, which are arranged through Bethanna Visitation Services (hereinafter referred to as “Bethanna”). She testified that mother has visited with L.S. on a regular basis (N.T. 11/30/2010, p. 35). Ms. DeCesare also testified that she is familiar with the standards Bethanna utilizes to evaluate parents after a visitation. The evaluation is based upon a numeric scale where “two” represents a satisfactory rating and “three” represents a rating of exceptional. Ms. DeCesare testified that during the entire time child has been in care of the agency, mother has consistently been rated with “twos” and “threes.” A majority of mother’s ratings were exceptional, and none were below the satisfactory category. Almost never did the mother receive a “one,” which would have signified she “needs improvement” (N.T. 11/30/2010, pp. 36-39).

Ms. DeCesare testified to an attachment between L.S. and mother, and distinguished that from a “bond” (N.T. 11/30/2010, p. 54). When asked by this court to further explain the distinction she testified as follows: “Attachment is that there is a recognition. This is a person that I know, that I do fun things with, that I play with. I’m not scared of this person. I’m comfortable with this person. A bond to me goes further than that. I depend on this person. I - this person meets my needs, and if they’re not there, I’m scared, I’m concerned, I don’t feel safe” (N.T. 11/30/2010, p. 58). Ms. DeCesare testified that she based this opinion on her impression that L.S. “does not appear to be distressed when leaving the visits with [mother]. She’s not clingy. She leaves the visits easily...I don’t see her having the connection with [mother] that she does with her foster parents. She goes to her foster parents for care and comfort and is clearly bonded with them” (N.T. 11/30/2010, pp. 57-58).

We also heard testimony from Christine Melton, the visitation social worker employed by Bethanna. At the behest of the agency, Ms. Melton has supervised mother’s visits with L.S. since July, 2009, and she noted that mother and L.S. were involved with Bethanna prior to Ms. Melton’s own involvement (N.T. 11/30/2010, p. 95). Ms. Melton testified not only to the fact that mother consistently was rated a two/satisfactory and tbree/exceptional in her evaluations, as explained above, but Ms. Melton also testified about the specific interactions between mother and L.S. during their visits. Mother’s consistently high ratings in her visits with child were based in part on elements such as greeting child warmly, planning appropriate activities, speaking to child with an appropriate tone of voice and about appropriate issues, conducting herself in such a manner as to provide safety and nurturing in her physical contact with child, appropriately supporting child’s physical needs, and ending their visits together in a positive way (N.T. 11/30/2010, pp. 105-111).

The record also reflects that L.S. refers to mother as “mommy.” L.S. happily greets mother, hugs and kisses her, and interacts positively with her during their visits. Child also greets her grandparents, mother’s parents, happily when she is along for the ride when mother is driven home after their visits (N.T. 11 /30/2010, pp. 112, 118).

Mother’s conduct has consistently demonstrated her passionate desire to be reunited with child. Additionally, mother testified thoroughly and credibly about child’s development, giving examples of child reciting numbers and colors, and how they enjoy books and puzzles together. Mother spoke of child’s milestones from when child first sat up and first held a bottle. Mother not only attends her weekly visitations, she has also participated in her parenting meetings, missing only a small number, with credible explanations for doing so. Mother attends child’s doctor visits, she communicates with the foster parents, she testified that she does not associate with drug users any longer, she has attended some counseling at Aldie Foundation and she attends NA and AA meetings at Scottsville Church (N.T. 11/30/2010, pp. 120, 130-131). All of these actions are indicative of mother’s efforts to be an appropriate parent, and to be reunited with child. While certainly not perfect, mother’s conduct has demonstrated a consistently serious intent to prove she can adequately and appropriately perform her parental duties.

The agency did not prove that termination would best serve the needs and welfare of child. The agency argued the position that “you can’t be bonded when you’re a once a week parent” (N.T. 11/30/2010, P. 173). We disagree. We were impressed not only with how productively mother uses her visitation time with child, but also with mother’s attendance at child’s doctors’ visits, and with mother’s efforts to communicate with foster parents. Mother has attempted to do far more with the limiting parameters placed upon her by the agency than simply showing up once a week for a visit. We found that mother does have a bonded relationship with child, and that terminating her rights would sever a relationship that is beneficial to child. We based this conclusion not only on mother’s own testimony, but on the testimony of the agency’s caseworker, along with the testimony of the Bethanna visitation social worker.

Mother has consistently maintained her weekly visitation with L.S., which by all accounts has been noted to be positive and constructive. We found the evidence of mother’s parenting efforts to be consistent and compelling, not just for the time periods between the two (2) hearing dates in 2010, or since the termination petition was first filed in June 2010, but at least since the Bethanna visitations began in March, 2009. Mother has focused her efforts on being drug and alcohol-free, maintaining employment, and, to the best of her ability, to have a positive impact on her housing situation with her parents.

Although the record reflects occasional inconsistencies and conflicting accounts between the agency and mother, we found they were insignificant. We found mother has made significant efforts to coordinate and participate in counseling and evaluations relevant to her mental health and drug history issues. She has not refused assistance nor has she absolutely denied that she has issues which need attention. Mother, currently age twenty-three (23), has demonstrated persistent efforts to appropriately perform parental duties and to be reunited with her now two (2) year old child. The agency did not demonstrate that the conditions which led the agency to remove child from the mother’s home more than two (2) years ago continue to exist.

CONCLUSION

For all of the foregoing reasons, we denied the agency’s petition to involuntarily terminate mother’s parental rights as to child. Our decision is neither against the weight of the evidence, nor does it represent an abuse of discretion. The agency failed to meet its burden of demonstrating by clear and convincing evidence that statutory and decisional law grounds exist for termination, or that termination would best serve the needs and welfare of child.

      . A Confirmation of consent to adoption concerning L.S. was signed by putative father, J.H., following a hearing on August 31,2010.

      . Although at the hearing mother responded to questions by the agency indicating that she was familiar with the allegations in the petitions for dependency, (N.T. 8/31/2010, pp.8-9), this court was not given the opportunity by the agency or other parties to become familiar with the complete record, or even pertinent parts thereof, made in front of the dependency court. Accordingly, we can only rely on references and inferences therefrom made by counsel and witnesses at the termination hearings.

      . We note that the first requirement of subsection (a)(5) was established by the agency; that is, that child had been removed from the care of parent by the court for a period of at least six (6) months.

      . One can also readily argue the opposite viewpoint; that is, it can be argued that if a child is distressed upon leaving a visitation, it is due to an unsettled visit with a parent. Here, where the testimony indicates the child is very happy throughout her visits and is excited to see mother, and is loving at the end of visits, it can reasonably be inferred that this exemplifies a positive, bonded relationship between child and mother.

      . While L.S. may well have a bonded relationship with her foster parents, this does not preclude her having a bonded relationship with mother, as well. (N.T. 11/30/2010, pp.31-33). Our role is to consider the effect of terminating child’s bond with mother. In re Adoption of J.M. 991 A.2d 321 (Pa. Super. 2010).

      . We would be remiss if we failed to note the “Catch-22” element of agency’s argument. It strikes us as less than fair to argue that a parent’s bond should be terminated due to lack of bonding time, when the agency itself bears some responsibility for precluding bonding time for mother and child.


author: CORSO, J.,

text:
    Toll Brothers, Inc. v. Panitch, Schwarze, Jacobs & Nadel, P.C.

      C.P. of Montgomery County,
    no. 97-08264.

      Louis J. Sinatra, for plaintiffs.

      H. David Kraut and Jeffrey B. McCarron, for defendants Meyer and Akin, Gump, Strauss, Hauer, and Feld, LLP.

      Nicholas M. Centrella, for defendant Panitch, Schwarze, Jacobs & Nadel, P.C.
    March 2, 2011
   CORSO, J.,

This is a civil action filed by plaintiffs, Toll Brothers, Inc., and TB Proprietary Corp. (plaintiffs or Toll) against defendants, Panitch, Schwarze, Jacobs & Nadel, P.C., and Akin, Gump, Strauss, Hauer & Feld, LLP, and James R. Meyer, Esquire, on May 2, 1997.

Plaintiffs’ amended complaint, which proceeded to trial before the undersigned and a jury, consisted of three counts: count I - Legal malpractice/negligence; count II - Contribution for abuse of process; and count III - Indemnity for abuse of process.

Basically, this action arises from the defendants’ legal representation of plaintiffs in a lawsuit by TB Proprietary Corp. against Sposato Builders, Inc. and Heyser Estates (underlying case defendants or Sposato) for copyright infringement andLanhamAct violations in the United States District Court for the Eastern District of Pennsylvania. The underlying case defendants asserted a counterclaim against plaintiffs for abuse of process. Following a bench trial in the federal court, plaintiffs’ copyright claim was withdrawn and the Lanham Act claim was dismissed by the court.

Subsequently, Sposato’s abuse of process counterclaim proceeded to trial. The jury returned a verdict in favor of Sposato and against Toll in the sum of $823,003.34, with $148,003.34 allocated for compensatory damages, and $675,000.00 for punitive damages. In addition to the verdict and judgment resulting from the underlying case, defendants’, successful abuse of process counterclaim, counsel fees and costs were assessed against Toll by the court pursuant to the copyright act in the sum of $204, 910.72.

Following dismissal of plaintiffs’ appeals, Toll filed an insurance coverage suit against its insurance carrier, General Accident Insurance Company, in the Superior Court of Delaware to recover attorney fees, compensatory and punitive damages assessed against it in the abuse of process trial. Plaintiffs sought reimbursement for the assessed punitive damages contending that its liability was based solely on the actions of its attorneys, the defendants in this case. More specifically, Toll asserted it was vicariously liable only. The Delaware court found:

The facts quite clearly show that Toll was not only vicariously liable for the punitive damage sanction. Toll was directly as well as vicariously liable for filing suit against smaller competitors. Toll companies had a direct involvement in the “abuse of process” claim because Toll was the driving force behind the litigation.

The court further found that Toll was not an unsophisticated client relying entirely upon counsel, and that it was aware of the course of that litigation. Based thereon, by opinion and order dated December 27, 1999, the Delaware court granted summary judgment in favor of General Accident and against Toll in its claim to have been only vicariously liable, and therefore entitled to insurance coverage for the punitive damages assessed against it. Toll’s appeal was dismissed by the Supreme Court of Delaware making the decision final.

Among the plethora of pretrial filings by counsel in this case were cross motions for summary judgment. Following briefing and oral argument the Honorable Maurino J. Rossanese, Jr. entered orders dated February 5, 2009 and March 4, 2009 denying the respective motions for summary judgment “due to outstanding questions of fact.”

This case proceeded to trial before the undersigned and a jury on September 23, 2010. At the conclusion of plaintiffs’ case in chief, the defendants moved for a compulsory nonsuit. Without objection, the court deferred ruling on the motion and the evidence was concluded. Following the close of all evidence, the plaintiffs and defendants each moved that the court direct a verdict in its favor. On October 7, 2010, the court granted defendants, Panitch Schwarze and Meyer’s, motion for a directed verdict and denied plaintiffs’ motion.

Thereafter defendant, Akin Gump, filed a written Motion for a Directed Verdict. Since defendant Akin Gump’s successor liability would be predicated upon a finding against defendants, Panitch Schwarze and/ or Meyer, this court granted the motion by order dated December 6, 2010.

Plaintiffs’ post-trial motion, consisting of 134 paragraphs, filed in a timely manner, was denied by order dated December 6, 2010. Thereafter plaintiffs filed a timely appeal. Toll’s statement of errors complained of on appeal basically states that the court’s entry of a directed verdict against it constituted errors of law, and abuse of discretion because it is contrary to law, evidence, and the law of the case.

The cross-appeal filed by defendants Panitch Schwarze on Januaiy 11, 2011, will not-be addressed because a prevailing party is not aggrieved and may not appeal. Epstein v. Saul Ewing, LLP, 7 A.3d 303 (Pa. Super. 2010).

Under the doctrine of collateral estoppel, a litigant is precluded from presenting a “question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being re-litigated in a subsequent suit.” Day v. Volkswagen Werk Aktiengesellschaft, 464 A.2d 1313, 1318 (Pa. Super. 1983). Collateral estoppel is based on the principle that a losing litigant deserves no rematch after a defeat in adversarial proceedings on an issue identical in substance to the one it seeks to raise subsequently. Plaxton v. Lycoming County Zoning Hearing Board, 986 A.2d 199, 208 (Pa. Cmwlth. 2009), allocatur denied, 608 Pa. 633, 8 A.3d 900 (2010). It is well settled that collateral estoppel is established when: (1) the issue decided in prior action is identical to the one presented in a later action; (2) the prior action resulted in final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to the prior action or in privity with a party; and (4) the party against whom collateral estoppel is invoked had a full and fair opportunity to litigate. Plaxton, 986 A.2d at 208-209; Grant v. GAF Corporation, 608 A.2d 1047, 1053 (Pa. Super. 1992) aff’d without opinion, 536 Pa. 429, 639 A.2d 1170 (1994).

The decision of the Superior Court of Delaware in plaintiffs’ insurance coverage case meets the collateral estoppel criteria. There was a final judgment on the merits; Toll was a party to the action and had a full and fair opportunity to litigate. The decision was based on Pennsylvania law that punitive damages are not covered by insurance unless the award was based solely on vicarious liability. Butterfield v. Giuntoli, 670 A.2d 646 (Pa. Super. 1995) allocatur denied, 546 Pa. 625, 683 A.2d 875 (1996). As such, plaintiffs are collaterally estopped in this case from asserting any contention contrary to the legal and factual findings of the Delaware court. More specifically, plaintiffs are collaterally estopped from asserting that their liability was vicarious only. The Delaware courts found that Toll’s conduct was, at least in part, the reason it was found to have abused process and punitive damages were awarded. As will be reviewed in greater detail, the finding that Toll was directly liable or not solely vicariously liable for the abuse of process award, is identical to the issues in this case and defeat its claims. The Delaware court opinion is sufficient to establish the elements of collateral estoppel without the necessity of defendants producing evidence of the proceedings.

Toll asserts that this court is precluded from reaching this conclusion and is bound by Judge Rossanese’s denial of defendants’ motion for summary judgment raising the same issue. It has been long recognized under the coordinate jurisdiction rule that judges of coordinate jurisdiction sitting in the same case should not overrule each other’s decisions, and that when a case is transferred between trial judges of coordinate jurisdiction, the transferee judge may not alter the resolution of a legal question previously decided. In deciding whether the coordinate jurisdiction rule applies, a court must consider the procedural posture of the case.

As our Supreme Court succinctly stated:

Where the motions differ in kind, as preliminary objections differ from motions for judgment on the pleadings, which differ from motions for summary judgment, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion. However, a later motion should not be entertained or granted when a motion of the same kind has previously been denied, unless intervening changes in the facts or the law clearly warrant a new look at the question. Id. (citations omitted). Parker v. Freilich, 803 A.2d 738, 745 (Pa. Super. 2002) allocatur denied, 573 Pa. 659, 820 A.2d 162(2003)

A motion for summary judgment and a motion for nonsuit or directed verdict are not motions of the same kind. Since the denial of the pretrial motions for summary judgment, plaintiffs and defendants have presented their evidence affording each an opportunity to address “outstanding questions of fact.” Such constitutes an intervening change in the facts and procedural posture of the case. As such, the coordinate jurisdiction or law of the case doctrine was not violated by granting the defendants’ motion for a directed verdict based upon collateral estoppel at the conclusion of the evidence. It is noted that plaintiffs also filed a motion for a directed verdict.

Count I of the plaintiffs’ amended complaint claims legal malpractice or professional negligence by the defendant attorneys was the basis of the finding of abuse of process and punitive damage award against it. Plaintiffs can succeed on this negligence claim only if it was not negligent or merely vicariously liable regarding the abuse of process finding.

The Comparative Negligence Act, 42 Pa. C.S. Section 7102(a), by its express terms is applicable only to actions which involve death or injury to a person or damage to property. Keller v. Re/Max Centre Realty, 719 A.2d 369 (Pa. Super. 1998). Professional liability cases, such as this, do not involve personal injury or property damage since the damages are strictly economic loss. Wagner v. Orie & Zivic, 636 A.2d 679, 681 n.2 (Pa. Super. 1994); In re Jack Greenberg, Inc., 240 B.R. 486, 517 (1999). Therefore the Comparative Negligence Act does not apply in this case. Since legal malpractice claims are outside the act, contributory negligence applies. Wescoat v. Northwest Savings Association, 548 A.2d 619 (Pa. Super. 1988).

Under the contributory negligence doctrine, a party is totally barred from any recovery when their own negligence, however slight, contributes to their injury in a proximate way. Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986). Based upon the prior findings of the Delaware court that, “Toll was directly as well as vicariously liable...,” plaintiffs are estopped from contending or arguing that its attorneys, the defendants, were 100 percent negligent. Therefore plaintiffs’ contributory negligence precludes any recovery on their professional negligence claim.

Count II of plaintiffs amended complaint seeks contribution from defendants for the damages it sustained as a result of the abuse of process and punitive damage award against it. Again, plaintiffs can only prevail on this claim if it is without fault.

The doctrine of in pari delicto is an equitable doctrine that provides that a plaintiff may not assert a claim against a defendant if the plaintiff bears fault for the claim. Feld and Sons, Inc. v. Pechner, Dorfman, Wolfee, Rounick and Cabot, 458 A.2d 545 (Pa. Super. 1983) allocatur dismissed as improvidently granted 504 Pa. 177, 470 A.2d 525 (1984). In Feld, plaintiffs were convicted of perjury and falsification of evidence in a representation proceeding before the National Labor Relations Board. The complaint asserted their attorneys told them to lie and falsify documents. The court of common pleas sustained the attorneys’ demurrer. The Superior Court held that because the plaintiff-clients also committed a wrong, they could not recover against the lawyers who advised them to do so. The Delaware court has found plaintiffs to be at fault, at least to some degree, thereby precluding plaintiff from succeeding on this claim as it did on Count I.

Abuse of process is an intentional tort. As such, contribution among joint tortfeasors being based upon equitable principles precludes an intentional tortfeasor from obtaining contribution for its own willful wrongdoing. Canavin v. Naik, 648 F. Supp. 268, 269 (E.D. Pa. 2004).

Plaintiffs’ common law indemnification claim in Count III is also defeated by the Delaware court decision. Common law indemnification is an equitable fault shifting mechanism that moves the entire responsibility for damages from a party who, without any fault, has been required to pay because of the legal relationship to the party who was at fault. City of Wilkes Barre v. Kaminski Brothers, Inc., 804 A.2d 89, 92 (Pa. Cmwlth. 2002) allocatur denied, 573 Pa. 717, 828 A.2d 351 (2003); DiPietro v. City of Philadelphia, 496 A.2d 407, 409-410 (Pa. Super. 1985). A party is not entitled to indemnity if the party seeking indemnity is at fault to any degree. Builders Supply Co. v. McCabe, 366 Pa. 322, 328. 77 A.2d 368, 371 (Pa. 1951). Indemnity is likewise unavailable to an intentional tortfeasor because it would permit them to " escape liability for their own deliberate acts. Canavin v. Naik, 648 F. Supp. 268, 269 (E.D. Pa. 1986); Northwestern Mutual Life Ins. Co. v. Babayan, 2004 WL 1902516, 2004 U.S. Dist. LEXIS 17155 (E.D. Pa. 2004).

To establish its claim for indemnity, plaintiffs must establish defendants are primarily liable for the underlying abuse of process, and that plaintiffs were not liable to any degree for the underlying abuse of process. Plaintiffs are estopped from contending or arguing that it was not liable to any degree for the abuse of process by its own conduct.

Although Toll’s statement of errors complained of on appeal raised numerous other reasons why this court erred in entering a directed verdict against it, they need not be addressed because none could have affected the result which was based on collateral estoppel.