author: HERRON, J.,

text:
    Herman Goldner Company Inc. v. Cimco Lewis Industries

      C.P. of Philadelphia County,
    March Term 2001,
    no. 3501.

      James Hollyday, for plaintiff.

      Alan Cotier, Andrew Hoppes and Peter Bludman, for defendants.
    July 19, 2002
   HERRON, J.,

Plaintiff Herman Goldner Company has filed a motion to compel the return of certain allegedly privileged documents. In the motion, Goldner seeks an order forcing defendant Cimco Lewis Industries t/a Cimco Refrigeration to return to Goldner certain allegedly privileged documents that were inadvertently disclosed in the discovery process. For the reasons set forth in this opinion, the court is granting the motion in substantial part.

BACKGROUND

The underlying dispute in this case relates to an alleged breach of contract. In response to the defendants’ discovery requests, Goldner’s counsel inadvertently provided several supposedly privileged and confidential documents. Defendant Klenzoid Inc. complied with Goldner’s request to return the documents, but Cimco refused, arguing that the documents’ production amounted to a waiver of privilege. In the motion, Goldner seeks an order compelling the return of the documents.

DISCUSSION

There are essentially two issues confronting the court: (1) whether Cimco has an obligation to return the documents; and (2) whether Cimco may use the information it acquired through its review of the documents in depositions. On both counts, the court agrees with Goldner and has granted the motion accordingly.

I. Cimco Has an Obligation To Return the Documents

The first issue, which is presented explicitly in the motion, addresses what to do with the physical documents themselves. In this regard, the law is clear: an attorney receiving confidential documents has ethical obligations that may surpass the limitations implicated by the attorney-client privilege and that apply regardless of whether the documents in question retain their privileged status. American Bar Association Standing Committee on Ethics and Professional Responsibility formal opinion 92-368 specifically addressed the ethical responsibilities of attorneys who receive “materials that appear on their face to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear that the materials were not intended for the receiving lawyer”:

“[I]t is the view of the committee that the receiving lawyer, as a matter of ethical conduct contemplated by the precepts underlying the model rules, (a) should not examine the materials once the inadvertence is discovered, (b) should notify the sending lawyer of their receipt and (c) should abide by the sending lawyer’s instructions as to their disposition.” ABA form. op. 92-368 (Nov. 11, 1992). Cf. Florida State Bar Ass’n Comm. on Prof. Ethics op. no. 93-3 (Feb. 1,1994) (“[A]n attorney, upon realizing or reasonably believing that he or she has received a document or documents that were inadvertently misdelivered, is ethically obligated to promptly notify the sender of the attorney’s receipt of the documents. It is then up to the sender to take any further action.”); Oregon State Bar Ass’n Bd. of Governors formal op. no. 1998-150 (Apr. 1998) (“If Lawyer B examines the document before Lawyer A informs Lawyer B of the inadvertent disclosure, Lawyer B is still ethically required to return the privileged document to Lawyer A. . . .”); Utah State Bar Eth. Adv. Op. Comm. op. no. 99-01 (Jan. 29,1999) (“A lawyer is required to bring to the attention of opposing counsel the receipt of any such communication unless it is clear from the circumstances that the attorney-client privilege has been intentionally waived.”). Thus, to the extent that Goldner inadvertently disclosed privileged documents, they must be returned.

This conclusion is bolstered by the specific facts of this case. It has been represented by counsel that the quick pace and cursory nature of Goldner’s counsel’s document review for privilege is attributable to satisfying the defendants’ desire to have the certain documents available before an April 16 deposition. Tr. of hr’g, June 26, 2002 at 12-13. Goldner acted quickly once it became aware of the documents’ disclosure; within two weeks of making the disclosures and within one day of becoming aware of them, Goldner’s counsel contacted Cimco’s attorneys and requested the return of the documents. Id. at 14. Moreover, there is no evidence that returning the documents would prejudice Cimco in any way.

Given the representations of counsel, it appears that the disclosure of the documents was unintentional. Consequently, the court concludes that Cimco is obligated to return all privileged documents and that the motion must be granted in this regard.

II. Cimco May Not Make Use of the Information Contained in the Documents

The second issue facing the court is what use, if any, Cimco may make of the information in the documents. The court finds that Cimco may not utilize the information in any of the confidential or privileged documents. Decisions addressing whether the disclosure of confidential documents constitutes a waiver of any related privilege amount to a minefield of nuanced, slightly differing opinions. In Minatronics Corp. v. Buchanan Ingersoll P.C., 23 D.&C.4th 1 (1995), the Honorable E. Stanton Wettick considered several of these positions and initially placed each of them in one of three categories:

“The first line of cases holds that the production by counsel destroys the privilege. Under this case law, the privilege is lost as soon as counsel makes the privileged documents available to an opposing party; it does not matter whether the documents which counsel produced included documents that counsel did not intend to produce. ...

“The second line of cases holds that the privilege is never lost through an inadvertent production of a privileged document. Under this line of cases, the protections of the attorney-client privilege are not waived through a truly inadvertent disclosure by counsel provided that counsel takes prompt action to rectify the situation upon discovery of the inadvertent disclosure....

“The third line of cases to which the opinions refer holds that the production of a privileged document may but does not necessarily destroy the privilege, depending upon the relevant circumstances surrounding the production.” 23 D.&C.4th at 5-6. See also, Meridian Mtge. Corp. v. Spivak, civ. a. no. 91-3932, 1992 WL 205640 (E.D. Pa. Aug. 14, 1992), at *3-*4 (reviewing three lines of cases addressing inadvertent disclosure of privileged information); Stacy L. Brustin, Legal Services Provision Through Multidisciplinary Practice — Encouraging Holistic Advocacy While Protecting Ethical Interests, 73 U. Colo. L. Rev. 787, 848 n.211 (2002) (“There are three tests that courts have used to decide whether attorney-client privilege is waived by the inadvertent production of a privileged document. These tests are: the ‘strict test,’ the ‘middle test,’ and the ‘lenient test.’ ”). Judge Wettick went on to explain that these three categories can be collapsed into two:

“There really are not three separate approaches to the issue of whether the inadvertent disclosure waives the attorney-client privilege. The case law has developed two different approaches. Under one approach, the privilege is waived only if counsel intended to produce the privileged documents; an inadvertent disclosure does not waive the privilege. The major variation within this approach deals with the extent to which the courts will scrutinize counsel’s assertion that the disclosure was inadvertent. Under the other approach, the privilege is lost when the document is disclosed. The variations within this approach range from an absolute ‘strict responsibility’ approach to an approach which restores the privilege if counsel can show that documents were inadvertently produced despite the exercise of reasonable care.” 23 D.&C.4th at 9-10. (emphasis added)

Judge Wettick found the first approach more favorable and outlined a four-prong test for determining whether the privilege continued to apply:

“In summary, for the reasons set forth in this opinion, I am following the line of cases holding that the disclosure of documents protected by the attorney-client privilege does not waive the privilege where (1) the disclosure was inadvertent, (2) it is still possible to afford the party that produced the documents many of the protections provided by the attorney-client privilege, (3) counsel took reasonable steps after learning of the inadvertent production, and (4) the party receiving the documents will not be prejudiced by a court order prohibiting or restricting that party’s use of the documents.” Id. at 14.

Other courts have not hesitated to offer their own suggestions on resolving this dilemma. One commonly used five-part test is as follows: “(1) the reasonableness of the precautions taken to prevent disclosure in view of the extent of the document production; (2) the number of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay and measures taken to rectify the disclosure; (5) whether the overriding interest of justice would or would not be served by relieving a party of its error.” McGreevy v. CSS Indus. Inc., no. civ. a. 95-CV-8063, 1996 WL 412813 at *2 (E.D. Pa. July 17, 1996). (citations omitted)

In Hartford Fire Insurance Co. v. Garvey, the court offered a slightly different test that focused on “(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the ‘overriding issue of fairness.’ ” 109 F.R.D. 323, 332 (N.D. Cal. 1985) (citing Lois Sportswear U.S.A. Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985)).

In summary, courts in situations similar to this one have considered the following factors:

(1) The reasonableness of the precautions taken to prevent disclosure;

(2) The inadvertence, extent and number of the disclosures;

(3) The steps taken after learning of the disclosure and the time frame in which those steps were taken;

(4) Issues of fairness and justice, including the utility of extending the attorney-client privilege and the prejudice the receiving party would suffer.

In addition to these considerations, most of which focus on the conduct of the disclosing party, the court is also aware of the ethical responsibilities of the attorney to whom the documents are disclosed, as discussed supra.

It appears that Goldner’s counsel took some, though not overwhelming, precautions against the disclosure of confidential and privileged information. However, the court must view these minimal precautions in light of the circumstances under which they were instituted; it has been represented by counsel that the quick pace and cursory nature of Goldner’s counsel’s document review for privilege is attributable to the desire to satisfy the defendants’ request and desire to have the certain documents available before an April 16 deposition. Tr. of hr’g, June 26, 2002 at 12-13.

The inadvertence, extent and number of the disclosures is also a wash. Given the representations of counsel, it cannot be said that the disclosure of the documents was intentional. On the other hand, the complete disclosure of 21 separate privileged documents supports Cimco’s position.

The remaining two factors militate in favor of Goldner. Goldner acted quickly once it became aware of the documents’ disclosure; within two weeks of making the disclosures and within one day of becoming aware of them, Goldner’s counsel contacted Cimco’s attorneys and requested the return of the documents. Tf. 14. In addition, it is still possible to protect Goldner’s interests by precluding Cimco’s use and retention of the documents, and there is no evidence that returning the documents would prejudice Cimco in any way.

The court is also struck by the fact that Klenzoid’s counsel has had no difficulty in complying with opinion 92-368. By halting its review of the documents upon recognizing their privileged status and returning the documents promptly, Klenzoid’s counsel properly fulfilled its ethical obligations. Were the court to allow Cimco to use the information in the documents, it would effectively punish Klenzoid, which has no access to this information, for its proper and ethical conduct. This the court will not do.

Based on these factors, the court concludes that Cimco may not use information from the privileged documents. Accordingly, the motion is granted.

CONCLUSION

Cimco’s counsel have an ethical obligation to return the privileged documents to Goldner. In addition, Cimco’s counsel may not make use of information it discovered through the privileged documents.

ORDER

And now, July 19, 2002, upon consideration of plaintiff Herman Goldner Company Inc.’s motion to compel the return of privileged documents and the response thereto of defendant Cimco Lewis Industries, and in accordance with the memorandum opinion being filed contemporaneously with this order, it is hereby ordered and decreed that the motion is granted:

(1) The defendant shall return any and all copies of privileged documents within 10 days of the date of entry of this order.

(2) The defendant may not utilize any privileged documents for any purpose or appropriate sanctions shall be imposed upon the defendant following application to the court.

(3) If the parties are unable to resolve the question of privilege with regard to any specific document, they are invited to submit the document in question to the court for review.

      . It is worth noting that, although Goldner’s draft order directs that the documents may not be utilized for any purpose, the motion makes no mention of Cimco’s right to employ the information revealed in the documents and does not address the potential evidentiary use of the documents. However, because Cimco has raised this issue in its response, the court will address it.

      . Goldner’s request for the documents’ return is separable from their future evidentiary use:
      “If the document contains information that is beneficial to Lawyer B’s client, Lawyer B’s duty of zealous representation under DR 7-101 may require Lawyer B to seek court permission to use the information.
      “Evidence questions of admissibility do not control the analysis of the ethical issues since privilege may sometimes be waived by disclosure. Goldsborough v. Eagle Crest Partners Ltd., 314 Or. 336, 838 P.2d 1069 (1992) (waiver by disclosure in response to discovery request; no evidence of mistake, inadvertence or lack of client authorization); GPL Treatment Ltd. v. Louisiana-Pacific Corp., 133 Or. App. 633, 638-39, 894 P.2d 470 (1995) (no error in trial court’s exclusion of evidence on determination of no waiver by inadvertent disclosure, no awareness by sender of recipient’s intent to offered as evidence until offer at trial), aff’d on other grounds, 323 Or. 116, 914 P.2d 682 (1996).
      “On the limited facts presented in the second question, and under the Disciplinary Rules which apply in Oregon, Lawyer B must return the document. However, in order to adequately represent the client both zealously and with professionalism, Lawyer B may be well-advised to arrange with Lawyer A to seek a pretrial determination of the admissibility of the information disclosed.” Oregon State Bar Association Board of Governors formal op. no. 1998-150 (Apr. 1998). To the extent that Goldner seeks an order barring the use of the documents, it must file an appropriate motion.

      . The fact that Klenzoid has complied with this requirement further undermines Cimco’s position.

      . The court so far has refrained from undertaking an individual review of the documents to determine the confidential and privileged status of each. If the parties are unable to resolve the question of privilege with regard to specific documents, they are invited to submit the documents in question to the court for review.

      . The reasons for accepting a measured approach and rejecting the broad approach that privilege is always waived are presented quite cogently in Minatronics. See 23 D.&C.4th at 11-14. See also, Blickle v. Bell-Thomson, 31 Phila. 235, 250 (1996). (“[Djisclosure does not waive the privilege where, inter alia, counsel took reasonable steps after learning of inadvertent production of an allegedly privileged document.”)

      . Commentators have also jumped into the fray. In Waiver: A Comprehensive Analysis of a Consequence of Inadvertently Producing Documents Protected by the Attorney-Client Privilege, 42 Cath. U. L. Rev. 465 (1993), for example, Roberta M. Harding proposes a test of her own:
      “The following test should be applied by all courts as the means of resolving the waiver consequence issue: Once the parties are aware that privileged documents have been inadvertently produced, a rebut-table presumption is created whereby it is deemed that the producing party’s inadvertent production has not waived the attorney-client privilege. This presumption is indicative of the alternative test’s endorsement of attempting to secure the attorney-client privilege. Subsequently, the producing party should then request the return of the documents. Under this test, two key factors are initially presumed in the producing party’s favor: (1) that the privileged documents were inadvertently produced; and (2) that the attorney-client privilege remains unscathed by the production of the documents. However, the producing party has the initial burden of proving that the documents are privileged. This burden is identical to that in the three currently existing tests.
      “Once it is shown that the documents are protected by the attorney-client privilege, it is automatically presumed that the producing party did not waive the privilege and that the production was inadvertent. If the nonproducing party does not contest this scenario, then the nonproducing party must return the documents and is prohibited from using or relying upon them in any manner during the course of the litigation.
      “However, if the nonproducing party contests the producing party’s assessment of the situation, then the nonproducing party has the right to attempt to rebut the nonwaiver presumption. The nonproducing party might first opt to refute the producing party’s contention that the documents are privileged. If this fails, the nonproducing party must then overcome the rebuttable presumption. Thus, the nonproducing party, in order to rebut the presumption and successfully establish that a waiver of the privilege has occurred, must prove two factors: (1) the privileged documents were not inadvertently produced; and (2) as a result, the attorney-client privilege is waived.” 42 Cath. U. L. Rev. at 485-86. Cf. Gloria A. Kristopek, To Peek or Not to Peek: Inadvertent or Unsolicited Disclosure of Documents to Opposing Counsel, 33 Val. U. L. Rev. 643, 681 (1999) (proposing a model rule of professional conduct to address inadvertent disclosure of privileged material); Ken M. Zeidner, Inadvertent Disclosure and the Attorney-Client Privilege: Looking to the Work-Product Doctrine for Guidance, 22 Cardozo L. Rev. 1315 (2001) (proposing to treat inadvertently disclosed privileged documents as attorney work product).

        It is unclear whether any of these proposed tests have been found persuasive, regardless of their efficacy. As an example, Harding’s test has the advantage of addressing both the ethical concerns imposed on the receiving attorney and the decision as to the use of the disclosed documents. However, research has revealed no decision in which a court has adopted this test.

      . Again, the court is hopeful that the parties will be able to come to an agreement as to which documents are, in fact, privileged, but will remain available to the parties in the event that a complete understanding between the parties is elusive.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    Gates v. Angle

      C.P. of Lehigh County,
    no. 2001-C-2766.

      Steven E. Hoffman, for plaintiff.

      William J. Taylor Jr., for defendant.

      May 16, 2002
   BLACK, J.,

The plaintiff, Elmer Gates, seeks to recover compensatory and punitive damages as a result of a defamatory statement allegedly made by the defendant, Ron Angle, to Joseph Carlson, a reporter for The Express-Times. Angle’s statement was quoted verbatim in the Easton and Bethlehem editions of The Express-Times, a daily newspaper circulated in Northampton, Lehigh and Bucks Counties in Pennsylvania, and in Warren and Hunterdon Counties in New Jersey.

Before the court for disposition are Angle’s preliminary objections to the complaint on the ground that Lehigh County is an improper venue for this case. For the reasons stated below, we conclude that venue in Lehigh County is proper.

FACTUAL BACKGROUND

The pertinent facts are derived from admissions in the parties’ pleadings; the affidavit of Angle; and the depositions of two employees of The Express-Times, Robert F. Rothacker Jr., vice-president of circulation, and Joseph Carlson, a reporter.

Both Gates and Angle reside in Northampton County. Angle has neither a residence nor a place of business in Lehigh County. Angle is a member of Northampton County Council and ran unsuccessfully last year on the Republican ticket for the position of Northampton County Executive against the incumbent Democrat, Glenn Reibman.

Gates is a retired business executive. He is currently affiliated with the Lehigh Valley Economic Development Corporation, a nonprofit corporation that seeks to attract new businesses to the Lehigh Valley. He has been a frequent contributor to Republican political candidates, but in the Northampton County Executive race last year he supported Angle’s opponent, the Democratic candidate, Reibman.

On October 11, 2001, approximately one month before the county election, Angle stated to Carlson in a telephone conversation,

“If Mike Fisher [attorney general of Pennsylvania] wasn’t being stifled by Elmer Gates, Glenn Reibman would probably be on trial right now.”

When this telephone conversation occurred, Angle was at his home in Northampton County, and Carlson was at his office in Northampton County.

The following day The Express-Times printed an article entitled “Mud flying in Reibman, Angle race.” The article stated in pertinent part:

“Angle, a Republican, said Lehigh Valley businessman Elmer Gates asked Fisher to sit on the investigation into former political consultant Michael Solomon.
“ ‘If Mike Fisher wasn’t being stifled by Elmer Gates, Glenn Reibman would probably be on trial right now,’ Angle said.”

The Express-Times is the successor to two newspapers, The Easton Express and the Bethlehem Globe-Times. The newspaper was originally called The Easton Express and was later re-named The Express. In 1993, its publisher purchased the Bethlehem Globe-Times, the only daily newspaper headquartered in Bethlehem. The name of the newspaper was then changed to its current name, The Express-Times. The newspaper is published in three editions, referred to as the Easton, Bethlehem and Warren (New Jersey) editions. The article referred to above appeared in both the Easton and Bethlehem editions.

The City of Bethlehem is located partially in Northampton County and partially in Lehigh County. This fact is common knowledge, especially to candidates for a county political office in those counties.

On October 12, 2001, The Express-Times had a total circulation of 52,359. The circulation in Lehigh County was 901 copies, of which 465 copies were circulated in Allentown and 436 copies in the Lehigh County portion of Bethlehem.

DISCUSSION

Venue is governed by Pennsylvania Rule of Civil Procedure 1006, which states in pertinent part:

“(a) Except as otherwise provided by subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.”

It is well established that a plaintiff’s choice of venue must be given great weight, and a defendant objecting to venue has the burden of proving that his objections to venue are valid. Gale v. Mercy Catholic Medical Center Eastwick Inc., Fitzgerald Mercy Div., 698 A.2d 647, 651 (Pa. Super. 1997), allocatur denied, 552 Pa. 693, 716 A.2d 1249 (1998).

In this case the defendant, Angle, does not have a residence or place of business in Lehigh County. Therefore, there is no basis on which he could be served in this county. Accordingly, venue in Lehigh County is proper only if at least one of the causes of action asserted by Gates in his complaint arose in this county or if a transaction or occurrence took place in this county out of which one of these causes of action arose.

A cause of action for defamation arises when the defamatory statement is published, i.e., when the statement is communicated to a person other than the person defamed. See Flaxman v. Burnett, 393 Pa. Super. 520, 529, 574 A.2d 1061, 1066 (1990); Restatement (Second) of Torts §577(1). Since it is the publication of the defamatory statement that gives rise to the tort claim, a cause of action for defamation arises at both the place from which the defamatory statement is communicated and the place where the communication is received.

Count II of the complaint, for slander, is based on an oral statement allegedly made by Angle to reporter Carlson. The complaint alleges that Angle made this statement at a campaign rally in Lehigh County. However, the deposition of Carlson and Angle’s affidavit are both to the contrary. According to Carlson and Angle, the statement was made in a telephone conversation, and each of them states that he was in Northampton County when this conversation took place. Gates has produced no evidence that Angle’s statement was made or received at a location in Lehigh County. Accordingly, the slander count cannot support venue in Lehigh County.

We reach a different conclusion, though, with respect to the defamation claim in Count I. This is sufficient to sustain venue in Lehigh County for the entire case. In Count I Gates alleges that Angle caused the defamatory statement at issue to be published in The Express-Times on October 12, 2001. The Express-Times had a circulation in Lehigh County on that date of 901 copies, of which 465 were circulated in Allentown and 436 in the Lehigh County portion of Bethlehem.

When a newspaper publishes a defamatory statement previously made by someone else, the newspaper publication is technically a republication of the earlier statement. The author of the earlier statement is legally responsible for the newspaper’s republication only if he intended or should have reasonably foreseen that the newspaper would republish his statement. Restatement (Second) of Torts §568 cmt. f (1976). If the newspaper republication was not intended or reasonably foreseen, the author of the earlier statement would not be legally responsible for the newspaper’s action. The plaintiff’s defamation claim in that circumstance would arise only from the original utterance, not from the later newspaper republication.

Consequently, the mere fact that some copies of The Express-Times containing Angle’s statement were circulated in Lehigh County does not automatically establish Lehigh County as a county in which Gates’ Count I cause of action arose. For a cause of action to arise in Lehigh County from the republication of a defamatory statement, it is necessary that the republication in Lehigh County be intended or reasonably foreseeable by the defendant. Hence, the circulation of Angle’s statement by The Express-Times in Lehigh County is actionable against Angle only if he knew or had reason to know that copies of The Express-Times containing his statement would be circulated in this county.

In this case the record discloses that Angle made the statement at issue to a news reporter for The Express-Times in the midst of a heated political campaign for the office of Northampton County Executive. The statement alleged criminal misconduct on the part of a prominent supporter of the candidate opposing Angle for this office. The statement was obviously newsworthy, and on the record produced to date a jury could find that Angle should have foreseen that The Express-Times would republish it.

Angle claims in his affidavit that he did not personally know that The Express-Times circulated any copies in Lehigh County. He argues, therefore, that whether or not he should have foreseen the republication of his statement by The Express-Times, he cannot be held accountable for the newspaper’s circulation of his statement in Lehigh County. However, regardless of Angle’s subjective claim of ignorance, the appropriate test has an objective component: Did Angle have reason to know that The Express-Times would be circulating copies of its October 12, 2001 edition in Lehigh County?

Clearly, every candidate for county office in Lehigh or Northampton County must be cognizant of the fact that the City of Bethlehem is partially in each of these counties. It is also common knowledge locally that Bethlehem’s only daily newspaper, The Bethlehem Globe-Times, was acquired by The Easton Express, which later became The Express-Times. Given those facts, Angle had reason to know that The Express-Times had Lehigh County subscribers and that copies of The Express-Times would therefore be circulated in Lehigh County. Accordingly, Gates’ cause of action in Count I arose in part in Lehigh County, and venue is proper here.

Although imany more copies of The Express-Times were circulated in Northampton County, this does not affect the propriety of venue in Lehigh County. Angle has not petitioned for a change of venue for the convenience of the parties and witnesses under Pennsylvania Rule of Civil Procedure 1006(d). The only issue presented by Angle’s preliminary objections is whether venue is proper in Lehigh County under Rule 1006(a). For the reasons stated above, we find that venue is proper in this county.

At common law, every sale of a copy of a newspaper was a separate and distinct publication giving rise to a separate cause of action. See Gaetano v. Sharon Herald Company, 426 Pa. 179, 231 A.2d 753 (1967). To protect publishers from a multitude of suits in different jurisdictions for what is in essence a single tortious act, Pennsylvania has adopted the Uniform Single Publication Act, which provides as follows:

“No person shall have more than one cause of action for damages for libel or slander, or invasion of privacy, or any other tort founded upon any single publication, or exhibition, or utterance, such as any one edition of a newspaper or book, or magazine, or any one presentation to an audience, or any one broadcast over radio or television, or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.” 42 Pa. C.S. §8341(b).

As a result of this statute, Gates may bring only one action against Angle for his statement in the October 12, 2001 edition of The Express-Times. But Gates may recover in that single action all damages suffered in all jurisdictions. Thus, Gates, may recover, in this Lehigh County case, if he prevails, for harm to his reputation in whatever locales such harm may have occurred as a result of the circulation of the October 12, 2001 edition of The Express-Times,

ORDER

Now May 16,2002, upon consideration of defendant’s preliminary objections to the complaint, after review of the parties’ briefs and oral argument, for the reasons set forth in the accompanying opinion, it is ordered that the preliminary objections be and hereby are overruled.

It is further ordered defendant shall filé an answer to the complaint within 20 days from the date of this order.

      . The parties’ counsel stipulated to this fact at oral argument.

      . “Defamation” and “slander” are not mutually exclusive terms. Defamation can take either of two forms — slander if the defamatory statement is made orally, or libel if the defamatory statement is made in writing or is foreseeably reduced to writing by a third party. Restatement (Second) of Torts §577 cmt. g (1976). Thus, the claim in Count I is more precisely termed a libel claim.

      . Gates’ argument that venue should he in Lehigh County automatically because some copies of The Express-Times were circulated here is much too broad a proposition. If someone had mailed a copy of The Express-Times article to a friend in Alaska, a republication of the defamatory statement would have occurred in Alaska. But this republication does not mean that a cause of action for libel would arise in Alaska. Cause-of-action venue exists only in the jurisdiction where the cause of action arose. Unless republication in Alaska was intended or reasonably foreseeable by Angle, no cause of action would arise there.
      We also do not find convincing Gates’ argument that venue can be sustained in Lehigh County because of his civic and business contacts here. The case of Gaetano v. Sharon Herald Company, 426 Pa. 179, 231 A.2d 753 (1967), on which his counsel relies, does not support his position for two reasons. First, in Gaetano the newspaper itself was a defendant. Obviously, the defendant newspaper knew where its circulation was. Thus, the circulation of the defamatory statement in the forum county was intentional on the part of the newspaper defendant and gave rise to a cause of action against it in that forum. Second, in Gaetano the plaintiff himself resided in the county where suit was brought. Here Gates resides in Northampton County, and on the record produced for the court his only connection with Lehigh County is his affiliation with the Lehigh Valley Economic Development Corporation. We are not permitted to take judicial notice of other connections he may have with Lehigh County.


author: SOLOMON J.,

text:
    Washington Engineering & Construction Co. v. Nitrochem L.L.C.

      C.P. of Fayette County,
    no. 2545 of 2001, G.D.

      Robert J. Blumling, Brian W. Ashbaugh and Stephen R Engel, for plaintiff.

      Joseph M. George Sr., Joseph F. Rodkey and Steven M. Nolan, for defendant.
    May 13, 2002
   SOLOMON J.,

Before the court are the preliminary objections of the defendant in the nature of a demurrer to the complaint of the plaintiff which seeks to enforce a mechanics’ lien claim.

BACKGROUND

On November 27, 2001, Washington Engineering & Construction Company, plaintiff, filed a complaint to enforce a mechanics’ lien claim against Nitrochem L.L.C., defendant. Attached to the complaint was the mechanics’ lien claim which set forth that the plaintiff was a contractor in an agreement with the defendant. In the agreement, dated February 14, 2001, the parties agreed that the plaintiff would supply labor and materials for the improvement of the plant of the defendant, which is located at 899 Third Street, Newell, Fayette County, Pennsylvania. Attached to the mechanics’ lien claim, as exhibit B, is a deed which contains a metes and bounds description of the property. The plaintiff asserts that it performed the work as agreed upon, and completed the project within four months of filing the mechanics’ lien. Despite performing the work as agreed upon, the plaintiff asserts that it has yet to receive payment and claims to have a lien in the amount of $267,930.19, together with interest and costs, against the defendant, the project, and the property. Additionally, in its complaint, the plaintiff asserts claims under the Contractor and Subcontractor Payment Act.

DISCUSSION

“[A] demurrer admits every well-pleaded material fact set forth in the pleadings, as well as all inferences, other than conclusions of law, reasonably deducible therefrom.” Berger v. Ackerman, 293 Pa. Super. 457, 459, 439 A.2d 200, 201 (1981) citing Tanenbaum v. Sears, Roebuck & Co., 265 Pa. Super. 78, 81, 401 A.2d 809, 810 (1979). “Moreover, [the court] must be able to state with certainty that upon the facts averred, the law will not permit recovery by the plaintiff.” Id., citing Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); Hamill Quinlan Realty Co. Inc. v. Rosswog Homes Inc., 281 Pa. Super. 235, 422 A.2d 146 (1980).

In applying this case law to a mechanics’ lien, a creature of statute in derogation of the common law, questions of interpretation, notice and other requirements should be resolved in favor of strict construction. Delinger Inc. v. Agresta, 714 A.2d 1048 (Pa. Super. 1998). However, the doctrine of substantial compliance must also apply to the Mechanics’ Lien Law. Id. It is also clear in a mechanics’ lien proceeding that when the sustaining of a prehminary objection will result in a denial of a claim or a dismissal of suit, preliminary objections should be sustained only in those cases which are clear and free from doubt. Chamber v. Todd Steel Pickling Inc., 323 Pa. Super. 119, 470 A.2d 159 (1983); Castle Pre-Cast Superior Walls of Delaware Inc. v. Srauss-Hammer, 416 Pa. Super. 53, 610 A.2d 503 (1992). Additionally, an allowance of amendments to a pleading is a matter of judicial discretion and are liberally permitted except where surprise or prejudice is likely, or where the amendment is against a positive rule of law. Berman v. Herrick, 424 Pa. 490, 227 A.2d 840 (1967). With regard to a mechanics’ lien, Pa.R.C.P. 1656 sets forth the required contents of a complaint, and provides that:

“The plaintiff shall set forth in the complaint:
“(1) the name and address of each party to the action and, if the action is commenced by a subcontractor, the name and address of the contractor;
“(2) the court and numbers and the date of the filing of the claim and a copy thereof as an exhibit;
“(3) a demand for judgment.”

In a commentary, Goodrich-Amram differentiates a complaint in a mechanics’ lien proceeding from a typical civil action by stating, “[ajlthough the form of a complaint in an action upon a mechanics’ lien should conform generally to that in a civil action, it appears to be the intention of the rales that such a complaint should be more simplified than a complaint in a civil action and that no allegations need be included with respect to the factual details of the underlying claim. This is because all of the essential details which would ordinarily be required to be alleged in a complaint are contained in the previously filed mechanics’ lien claim which must be attached to the complaint.” 5 Goodrich-Amram §1656:2 (1990).

This, necessarily, leads us to what must be contained in a mechanics’ lien claim. By statute, such a claim must contain:

“(1) the name of the party claimant, and whether he files as contractor or subcontractor;
“(2) the name and address of the owner or reputed owner;
“(3) the date of completion of the claimant’s work;
“(4) if filed by a subcontractor, the name of the person with whom he contracted, and the dates on which preliminary notice, if required, and of formal notice for intention to file a claim was given;
“(5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or material furnished;
“(6) in all other cases than that set forth in clause (5) of this section, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof;
“(7) the amount or sum claimed to be due; and
“(8) such description of the improvement and of the property claimed to be subject to the lien as may be reasonably necessary to identify them.” 49 Pa.C.S. §1503.

A mechanics’ lien is a special remedy in rem, and the terms of the Mechanics’ Lien Law must be strictly followed in order that a plaintiff may avail himself of its benefits. Begar v. Dorfman, 45 D.&C. 136 (1943). While adherence to the terms of the statute is indispensable, we cannot allow such adherence to stifle a remedy intended to be simple and summary. Intercoastal Lumber Distributors Inc. v. Derian, 117 Pa. Super. 246, 178 A. 350 (1935). Thus, in considering a mechanics’ lien claim, it must be kept in mind that substantial compliance with the Act is sufficient and is shown to exist wherever enough appears in the statement to point the way to successful inquiry. Marchak v. McClure, 176 Pa. Super. 381, 384, 108 A.2d 77, 79 (1954).

In the case at bar, the defendant contends that the pleadings are not sufficient for various reasons, and we will address each contention individually. First, the defendant contends that the complaint is insufficient because it “fails to set forth sufficient and specific facts that, if proven, would establish that the purported contract is for labor and materials furnished in the erection and construction of an improvement to real property. Rather, had [plaintiff] attached all the contract documents (including drawings), as it should have done under Pa.R.C.P. 1019(i), it would be clear that the purported contract upon which the plaintiff’s claims are based related to work performed with respect to certain above ground storage tanks which are machinery and/or equipment, as opposed to fixtures or real property.”

In Marchak, supra, the court concluded that the exhibit accompanying the claim was sufficiently clear to accomplish the purpose intended by the legislature. It set forth the materials furnished in semi-technical language, which was familiar to the great majority of home builders, and in such form as to be easily understood by those having knowledge of the character of work done by the claimant. Marchak, supra. In other words, an exhibit annexed to a claim and filed therewith is to be considered as part of the lien. Id. Furthermore, where a mechanics’ lien claim identifies and describes by metes and bounds the real estate upon which the lien is sought, such description is entirely sufficient for the purpose of identifying the land to the owners thereof. Marchak v. McClure, supra.

In general, mechanics’ liens cannot attach to land for work unconnected with the construction of buildings or other permanent structures. King’s Oak Liquidators v. Bala Cynwyd Hotel Associates, 405 Pa. Super. 250, 592 A.2d 102 (1991). What can be included in a mechanics’ lien claim, as constituting work to the permanent structure, and what cannot, has been established by case law. Id. For example, painting constitutes a “repair” for which a mechanics’ lien may be filed, Heller v. Millis, 59 D.&C. 491 (1947), while installing chandeliers does not. City Deposit Bank v. McClafferty, 70 Pitt. L.J. 967 (1922). Therefore, a defendant needs to know specifically what labor was provided and what materials were furnished. Normally, this need not be included in the mechanics’ lien complaint because such can be found in the attached mechanics’ lien claim.

Instantly, the plaintiff attached a copy of the deed to the property to the claim and the complaint. However, the complaint, claim, and record simply state the scope of work done on the defendant’s plant, which is located on the property described in the attached deed. There is no language to identify the type of labor provided, or the materials which were furnished. Without these elements, the defendant cannot determine if the work is within the scope of the Mechanics’ Lien Law. As such, the pleadings lack the specificity required to enable the defendant to answer or to assert any possible affirmative defenses. Therefore, because the underlying mechanics’ lien claim is insufficient in this regard, the complaint incorporating it is also insufficient.

The next issue the defendant argues is that the complaint is deficient because it “fails to specifically aver that the mechanics’ lien claim is solely for material actually furnished for the erection, construction, alteration or repair of an improvement to real property” and improperly avers lost profits. By statute, every “improvement and the estate or title of the owner in the property shall be subject to a lien, to be perfected as herein provided, for the payment of all debts due by the owner to the contractor or by the contractor to any of his subcontractors for labor or materials furnished in the erection or construction, or the ¿Iteration or repair of the improvement, provided that the amount of the claim, other than amounts determined by apportionment under section 306(b) of this Act, shall exceed $500.” 49 P.S. §1301. Thus, a mechanics’ lien can be sustained only for work and labor actually performed and material furnished. Hoekstra v. Hopkins, 87 Pa. Super. 15 (1926).

As set forth supra, a complaint to enforce a mechanics’ lien claim need riot specifically aver that the materials are for thé erection, construction, alteration or repair of an improvement to real property Where the underlying mechanics’ lien claim contains such averments. Instantly, because the underlying claitri is lacking, the plaintiff must amend its complaint in order to put the defendant in a position to be able to answer and plead affirmative defenses.

With regard to the plaintiff’s claim for lost profits, as stated supra, .a mechanics? lien is a special remedy in rem and the terms of the Mechanics’ Lien Law mu$t be strictly followed in order that a plaintiff may avail hirm. self of its benefits. Begar v. Dorfman, supra. Thus, because it is clear that a mechanics’ lien claim is only.for materials actually furnished and labor actually provided,; the claim for lost profits must be stricken from the complaint.

The defendant next contends that a Contractor and Subcontractor Payment Act claim cannot be joined in a Mechanics’ Lien Law- claim and, consequently, plaintiff’s claim under the Contractor and Subcontractor Payment Act should be stricken from the complaint. Once again, this matter is governed by rule.

“No other cause of action may be joined with an action to obtain judgment on a [mechanics’ lien] claim except that where the improvement is located in more than one county and claims have been filed in more than one of said counties, the plaintiff may join the claims in a single action.” Pa.R.C.P. 1657. Since the Mechanics’ Lien Law is a creature of statute in derogation of the common law, any questions of interpretation should be resolved in favor of a strict, narrow construction. Denlinger Inc. v. Agresta, supra. Thus, it is clear from the language in th e Rules of Civil Procedure that the plaintiff may not join a Contactor and Subcontractor Payment Act action with its Mechanics’ Lien Law action. Therefore, such a claim must be stricken from the complaint.

Wherefore, we will enter the following order.

ORDER

And now, May 13, 2002, upon consideration of the preliminary objections filed by the defendant, and after argument, it is hereby ordered and decreed that the preliminary objections are granted in part and denied in part. The preliminary objection in the nature of a demurrer is ordered denied, while the preliminary objection in the nature of a more specific complaint consistent with the foregoing opinion is ordered granted.

It is further ordered and decreed that the preliminary objections to the claim for lost profits and to the claim under the Contractor and Subcontractor Payment Act are granted and the same are ordered stricken from the complaint of the plaintiff.


author: MOTTO, J.,

text:
    Caravella v. Schaffer

      C.P. of Lawrence County,
    no. 11068 of 2001.

      Charles F. Gilchrest, for plaintiffs.

      Charles W. Garbett, for defendant.
    March 8, 2002
   MOTTO, J.,

The pertinent facts of this case and the matter before the court can both be adequately rendered by stating the issue posed, “Should preliminary objections to paragraphs of a complaint containing medical expenses arising from an automobile accident be sustained as per 75 Pa.C.S. §1722?”

As part of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1722 precludes recovery for medical bills arising from an automobile accident but covered by insurance benefits. As to any medical bills in excess of insurance benefits, the law reverts to a more traditional .footing, having the negligent parties held .liable to injured, pursuing petitioners. .

Both sides cite us to Carlson v. Bubash, 432 Pa. Super. 514, 639 A.2d 458 (1994). Carlson held that covered medical bills as well as being immaterial to recovery, are also -not probative as to the amount of pain endured, so these medical bills, in addition to being nonrecoverable, are also inadmissible. To this point, all opinions as to the best line to follow are congruent.

Of course, it is when the paths diverge that we, the court, are presented with an issue. These paths diverge not as to the admissibility of the covered medical bills, but whether or not they are fit to be pled in the complaint: Neither side has been able to cite us to a case on point, but the defendant proclaims that as this information is “irrelevant,” it ought to be excluded. We disagree.

While Carlson, supra, did hold that medical bills are irrelevant as evidence of pain, it did not hold that medical bills are, in every way, immaterial to. the case. The allegations of medical expenses document whether the medical expenses have or have not exceeded the coverage. If not pled, how could the court be held accountable to exclude sums not in excess of the coverage, or to allow sums in excess of the coverage? The plaintiffs’ purpose in pleading medical bills at this juncture is to document the present status to protect plaintiffs’ claims for medical expenses in excess of coverage should later medical bills incurred prior to trial exceed the coverage. . .

As we so answer, the defendant’s preliminary objections will be overruled via our accompanying order of court; however, this does not leave the defendant devoid of other means of protection. As the plaintiffs point out in their brief, the defendant is free to file a motion in limine to seek protection from the introduction of evidence of such expenses at trial to prove pain and suffering or any other purpose the defendant feels would be improper, or otherwise object at trial.

In conclusion, the court finds, as requested by the defendant, that section 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law precludes a plaintiff from recovering medical expenses which are either paid or payable under first-party insurance coverage, and that evidence of the amount of such medical expenses is not probative or relevant to the issue of pain and suffering and that therefore, evidence of medical expenses paid or payable under first-party coverage, and where the expenses do not exceed coverage, is not admissible at trial; nevertheless, the court finds that plaintiffs may plead such expenses in order to preserve plaintiffs’ claims for medical expenses that exceed the amount of coverage available under first-party insurance coverage. Additionally, evidence of the total medical expenses may be necessary at trial in order to prove the amount by which the medical expenses exceed the amount paid or payable under first-party coverage. The admissibility of such medical expenses, therefore, if in dispute, should be raised at trial, or alternatively, prior to trial by motion in limine.

ORDER

And now March 8, 2002, after consideration of the defendant’s preliminary objections to plaintiffs’ complaint, and after consideration of the briefs of the parties, and in accordance with the accompanying opinion of even date herewith, it is therefore ordered, adjudged and decreed that the defendant’s preliminary objections are overruled and the defendant shall file an answer to plaintiffs’ complaint within 20 days of the date of this order.


author: BRINKLEY, J.,

text:
    Alverio v. Robinson

      C.P. of Philadelphia County,
    April Term 1998,
    no. 3298.

      Richard M. Weiner and Jerry A. Lindheim, for plaintiff.

      Pamela A. Carlos, for defendant.
    May 31, 2001
   BRINKLEY, J.,

Rosa Alverio sued Robert Robinson and Enrico Farina for injuries she sustained in a motor vehicle accident. The jury found in favor of plaintiff and against defendant Enrico Farina in the amount of $4,459.95. Jerry A. Lindheim, Esquire, on behalf of plaintiff has filed an appeal of this court’s judgment on the jury’s verdict, entered on October 25,1999.

I. PROCEDURAL HISTORY

Plaintiff Rosa Alverio filed a complaint against defendants Enrico Farina and Robert Robinson in April of 1998. The complaint claimed that Alverio suffered injuries as the result of a motor vehicle accident caused by the defendants’ negligence. Since the amount in controversy was $50,000 or less, the parties went to compulsory arbitration on January 7,1999. Alverio did not proceed with her case against defendant Robert Robinson. The board of arbitrators found against Farina and awarded Alverio $50,000. On January 22, 1999, Farina appealed this award to the court of common pleas for a trial de novo. Before trial the parties stipulated that Farina was negligent and that Alverio’s unpaid medical bills totaled $4,459.95. From October 21 through 25,1999, the above-captioned matter was tried before this court sitting with a jury. The jury found in favor of Alverio and awarded her $4,459.95. This court entered judgment on the jury’s verdict. Alverio filed a post-trial motion for a new trial which this court denied after receiving and reviewing the briefs of both parties. Alverio filed notice of appeal to the Pennsylvania Superior Court on October 24,2000. The appeal was quashed by the Superior Court on January 29,2001, and reinstated after reconsideration on February 26, 2001. Neither notes of testimony nor a statement of matters complained of on appeal were received by this court.

II. FACTUAL HISTORY

On January 27, 1997, Alverio was riding as a passenger in the front seat of a vehicle being driven by Basilia Vargas on Rising Sun Boulevard in Philadelphia. Alverio claimed she was injured when the car in which she was riding was struck from behind by a vehicle driven by defendant Robert Robinson. Robinson’s vehicle was hit in the rear by Farina’s car. After the accident, police came to the scene and took statements. Then Basilia Vargas drove Alverio home in the vehicle which was involved in the collision.

After the collision, Alverio felt pain in her neck, shoulder, lower back, head and brain. She went home, took some Motrin and laid down. Four days later she went to Champlost Medical Center, which was recommended to her by a friend at the scene of the accident. Alverio began physical therapy at Champlost with hot baths, cold towels, water machines and electrical simulation. Her family physician at the time of the accident was Dr. Pagalliluan. Alverio continued the physical therapy for six or seven months. She stated her neck and back did not feel better after the physical therapy. While she was in physical therapy, her left arm actually developed pain and so did her hands, bones and. brain. Alverio also treated with an orthopedic surgeon, Dr. Evan O’Brien, March through December of 1997. Within this treatment period, Alverio underwent a cervical CT scan, an MRI and EMG testing. Dr. Jennifer Chu, who performed the EMG, reported indications of nerve damage from C3 through C7 bilaterally. Alverio also saw another orthopedist, Dr. Loray and a doctor for headaches, Dr. Manon Espaillat. Dr. Loray performed injections into Alverio’s neck in February of 1999 which made her neck, shoulder and left arm feel better.

At the time of the accident in question, Alverio was not working. She testified she had not worked since 1995. Alverio stopped working because of a nervous disorder. Before the nerve problem arose, Alverio operated an industrial machine making clothing for children. Alverio claimed her injuries prevented her from lifting heavy objects and dressing herself. She also could not bathe herself, could not sleep well and could not lift her arm beyond a certain level.

Alverio was examined by a doctor chosen by the defense, Dr. Richard Bennett, whose deposition testimony was offered during trial via videotape. During her examination by Dr. Bennett, Alverio complained of pain along her left arm and in her left ankle, as well as sensory changes on her left side. Dr. Bennett found no objective evidence of injury or loss of sensation. Dr. Bennett also reviewed the records from Alverio’s previous medical providers. He disagreed in particular with Dr. Chu’s diagnosis, which was the only objective medical evidence presented. Dr. Bennett would not state that Alverio was injured as a result of the January 27, 1997 accident because he did not examine her at that time. Dr. Bennett opined that if he had, he may have found soft tissue injuries, sprains and/or strains which would long have been resolved.

Farina also presented stipulated testimony from Richard King. King was an investigator for Egis International Inc., who was hired by Farina to conduct surveillance of Alverio. King observed Alverio February 11, 1999, and May 7 and 25-27, 1999. The jury was shown footage from the surveillance tapes made by Egis International Inc. The video showed Alverio lifting herself into a minivan with her left hand, driving the van and working at the deli counter of A & S Grocery making sandwiches, bagging groceries and serving customers.

III. ISSUE

Whether the Trial Court Erred in Refusing To Grant a New Trial Because the Damages Awarded Alverio Equaled the Stipulated Amount of Her Unpaid Medical Bills

IV. DISCUSSION

A. The Trial Court Has Discretion Whether To Grant a New Trial

It is settled that the grant or denial of a new trial rests in the discretion of the trial court. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994). “Trial by jury is among the unique and fundamental institutions of our democratic government.” Colosimo v. Pennsylvania Electric Co., 337 Pa. Super. 363, 369, 486 A.2d 1378, 1381 (1984) (citing Mix v. North America Co., 209 Pa. 636, 59 A. 272 (1904)). “Therefore, it is imperative that [the courts] promote public confidence in [the] judicial system by vigilantly protecting the integrity of [the] jury system.” Colosimo, 337 Pa. Super, at 369, 486 A.2d at 1381. A jury trial presumes that the jury will serve its specific purpose in a “controlled environment” influenced only as permitted by the trial judge. Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984).

A jury is free to believe all, some or none of the testimony presented by witnesses. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 637 (1995). The jury is entitled to reject any and all evidence up to a point at which the verdict would be “so disproportionate to uncontested evidence as to defy common sense and logic.” Neison, 539 Pa. at 521, 653 A.2d at 637. A trial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it “shocks one’s sense of justice.” Kiser, 538 Pa. at 226, 648 A.2d at 4. The review of a trial court’s grant or denial of a new trial is limited to whether there was an abuse of discretion or error of law. Neison, 539 Pa. at 520, 653 A.2d at 636.

In this case, the verdict is not so contrary to the evidence offered as to shock anyone’s conscience or sense of justice. The only factual issue to be determined was whether Alverio suffered compensible injury as a result of the collision with Farina, and what damages she incurred in connection with any injury. The parties offered conflicting expert and lay testimony regarding the existence of injuries and resultant damages. The jury obviously apparently chose to believe portions of each parties’ evidence. The amount awarded was determined by the jury to be fair in light of the evidence. The jury decided that while Alverio did incur medical costs, she may not have suffered compensable injury beyond that amount, especially considering the video containing surveillance of Alverio’s activities which contradicted her testimony. It is well within the jury’s province to decide such matters, thus this court was correct in entering judgment on the jury’s verdict. Any other action wohld have improperly usurped the jury’s function as fact-finder.

B. The Trial Court Correctly Denied Plaintiff’s Request for a New Trial Because the Medical Evidence Was Disputed

In Neison, supra, the injuries to the plaintiff were objectively acknowledged by both parties, liability was stipulated, but no damages at all, i.e., zero damages were awarded to the plaintiff. Neison, 539 Pa. at 519, 653 A.2d at 636. The Supreme Court of Pennsylvania held that the trial court was correct in granting a new trial in this situation, because the verdict was contrary to the instructions of the court and/or contrary to the evidence. The court specifically noted that the defense in that case was not that the plaintiff had suffered no injuries, nor any pain and suffering, but that the injuries had not lasted long in duration. Neison, 539 Pa. at 520, 653 A.2d at 636. The defendant’s own expert testified that the plaintiff showed a healed sprain of the neck, scapular and shoulder blade. Neison, 539 Pa. at 522, 653 A.2d at 637. Thus, the evidence regarding the existence of the plaintiff’s injuries was uncontroverted. Neison, 539 Pa. at 521, 653 A.2d at 637. In light of this uncontroverted evidence, it was plain that the trial court was correct in ordering a new trial. Neison, 539 Pa. at 522, 653 A.2d at 638.

However, in Livelsberger v. Kreider, 743 A.2d 494 (Pa. Super. 1999), the Superior Court reached a different result, and held that “[T]he plaintiff is entitled to a new trial when the jury fails to award damages and there is uncontroverted evidence that the plaintiff suffered injuries as a result of defendant’s negligence.” Id., 743 A.2d at 495. (emphasis added) In Livelsberger, the plaintiff attempted to analogize its case to that of Neison when the Livelsberger jury awarded the plaintiffs no damages. Id. at 495. However, the Superior Court distinguished this case because the injuries in Livelsberger and the causation thereof were disputed. Kreider presented expert testimony that questioned the cause of Mrs. Livelsberger’s injuries. Id. at 495. Another expert acknowledged that Mrs. Livelsberger may have sustained a cervical sprain but nothing else. Id. at 496. In addition, the severity of the accident was called into question by photographs of the vehicles presented by the defense. Id. at 495. Even though the plaintiff was transported immediately to a hospital and treated subsequently with her family physician, the denial of a new trial was upheld on appeal because the injuries were controverted and a question of fact was properly decided by the jury. Id.

In support of her motion for a new trial, in this case, Alverio cited numerous cases which this court finds inapplicable. All of the cases cited rest on the presumption that the injuries suffered by Alverio were uncontroverted. However, at no point did the defense concede that Alverio had offered any objective proof of any injury. Even Alverio’s own expert, Dr. O’Brien, admitted that his diagnosis was based on the subjective complaints of the plaintiff. In one of the cases cited by plaintiff, Mano v. Madden, 738 A.2d 493, 495 (Pa. Super. 1999), the plaintiff was also rear-ended by the defendant. Mr. Mano claimed to have suffered injuries to his neck and back. Id. Liability was found as a matter of law by the court. When a verdict was rendered in favor of the defendant, the trial court granted a new trial. Id. During trial, defendant’s expert conceded that Mr. Mano had suffered an injury directly resulting from the accident. Id. at 496. The court noted that “it is evident that both medical experts believed Mr. Mano suffered some strain to his neck and back as a result of the accident, differing only as to the extent and duration of his injury.” Id. at 497.

However, the injuries in this case were disputed by the parties. Alverio’s experts agreed that Alverio was injured, but their diagnoses were vague. On the other hand, Dr. Bennett, the defense medical expert, did not concede that Alverio was injured, and expressly disagreed with the analysis of the only objective medical report offered by Alverio to prove her injuries. Dr. Bennett found no objective signs of injury. Moreover, the photographs offered by the defense undermined the severity of the impact as described by Alverio. The pictures showed minimal damage to the vehicles involved in the collision. In addition, the surveillance video offered by Farina was extremely damaging to Alverio’s credibility in that it portrayed her doing many of the activities she claimed to be prevented from engaging in because of her injuries. The entire defense of Farina was based upon evidence offered to prove that Alverio was not injured as she claimed. There was no concession of injury, however slight. The medical evidence in this case, therefore, was controverted or disputed and the cases upon which Alverio relied in her post-trial motions (which are presumed to be the basis of this appeal) are not applicable to this situation.

C. Even If the Injuries Were Not Disputed, Alverio’s Reliance on a Case Decided Subsequent to Alverio That Verdict Is Erroneous

In her brief support of her post-trial motion for a new trial, Alverio relied on Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000). The case is cited in support of Alverio’s proposition that a verdict for the exact amount of unpaid medical expenses demands a new trial. While it is true that a new trial was awarded on that basis, the evidence from the medical experts was, again, uncontroverted. Both parties’ experts agreed that Ms. Burnhauser had suffered injuries as a result of the accident between the parties. Id. at 1258. The only disputed point was the nature and extent of said injuries. Id. Therefore, in accordance with the aforementioned line of cases, including Mano v. Madden, a new trial was ordered because the evidence proving the plaintiff was injured was uncontroverted.

Obviously, Burnhauser is not applicable to the case at bar since it was decided January 2000, over two months after Alverio’s jury verdict of October, 1999. Moreover, Pennsylvania courts have long disfavored the retroactive application of newly promulgated rules of law. Once a new rule is determined to have been created, the Supreme Court of Pennsylvania uses a three-factor test to decide if the rule should be applied retroactively. Cleveland v. Johns-Manville Corp., 547 Pa. 402, 414, 690 A.2d 1146, 1152 (1997). The first factor is the purpose to be served by the new rule. If the purpose is significant to promoting fairness and justice, this factor will support retroactive application. Id. The second factor is the extent of reliance on the old rule. Id. If there is considerable reliance on the old rule by those effected, retroactivity is not favored. Id. The third factor to be considered is the effect on the administration of justice by the retroactive application of the new rule. Id. If the new rule will overly burden the justice system or the effected parties, it will not be applied retroactively. Id.

In this case, even if applicable, the rule could not have been applied by this court and should not be applied retroactively. In this situation, the purpose of the rule is to ensure that jury verdicts are not below an unconscionable amount once liability has been assessed. The amount awarded Alverio was deemed fair by the jury in light of the conflicting testimony and evidence. The reliance on a prior rule is significant because there would be no reason for the issue to be fully litigated if the defendants were already aware of the liability and damages that ultimately would be assessed to them. The administration of justice surely would be affected if this case was applied retroactively to all pending actions in which the injuries are not controverted. Courts will deviate from retroactivity if the application will “lead to an inequitable result which imposes an injustice.” Kituskie v. Corbman, 552 Pa. 275, 283 n.5, 714 A.2d 1027, 1031 n.5 (1998) (citing Blackwell v. State Ethics Commission, 527 Pa. 172, 184, 589 A.2d 1094, 1100 (1991)). In this case, applying Burnhauser to the instant matter would lead to an inequitable result because the injuries are controverted and no purpose would be served by such application.

IV. CONCLUSION

Based upon the foregoing, this court properly denied Alverio’s motion for a new trial as the verdict of the jury was based on credibility determinations within the domain of the jury as the fact-finder. Therefore, Alverio’s motion was properly denied and her appeal should be dismissed.


author: O’BRIEN, S.J.,

text:
    Richey v. Loder

      C.P. of Butler County,
    no. A.D. 97-10820.

      Paul L. Hammer, for plaintiffs.

      Leo M. Stepanian II, for defendants Loder.

      Lee A. Montgomery, for defendants Peterson.
    December 4, 2000
   O’BRIEN, S.J.,

Defendants Kelly Marie Loder and Stephen A. Loder have filed a motion to bifurcate the liability and damages issues from the insurance coverage issue. Both defendants Loder and defendants Steven L. Peterson and Deborah Peterson have filed motions to compel plaintiffs Marlene F. Richey and Wilber E. Richey to file a declaratory judgment action against Liberty Mutual Insurance Company.

This case arises out of an automobile accident that occurred on September 12,1995. Defendant Kelly Loder allegedly failed to stop at a sign on Haine School Road and thereupon caused her automobile to collide with the automobiles driven by plaintiff Richey and defendants Peterson.

MOTION TO COMPEL

There is a dispute between parties as to whether plaintiffs Richey selected the limited tort option or the full tort option with their insurance carrier, Liberty Mutual Insurance Company. Liberty Mutual Insurance Company is not a party to this action. Plaintiffs Richey contend that they selected the full tort option while defendants Loder contend in their motion that plaintiffs Richey selected the limited tort option.

In their motions to compel, defendants Loder and defendants Peterson contend Liberty Mutual Insurance Company is a necessary party to this action. Defendants Loder and defendants Peterson argue that any decision by the court as to the tort coverage selection made by plaintiffs Richey involves the rights, liabilities, and obligations of Liberty Mutual Insurance Company. Therefore, both parties contend plaintiffs Richey should be compelled to file a declaratory judgment against Liberty Mutual Insurance Company in order to resolve the issue surrounding the tort coverage selection.

Defendants Loder and defendants Peterson have not cited any persuasive authority that permits the court to compel plaintiffs Richey to file an action for declaratory judgment against their insurance company. Although a declaratory judgment may be a proper method of determining whether plaintiffs Richey selected full tort or limited tort coverage, plaintiffs Richey cannot be compelled to litigate this issue by filing a declaratory judgment action against Liberty Mutual Insurance Company.

MOTION TO BIFURCATE

In Hutchison ex rel. Hutchison v. Luddy, infra, the Superior Court of Pennsylvania stated “[bjifurcation should be carefully and cautiously applied and be utilized only in a case and at a juncture where informed judgment impels the court to conclude that application of the rule will manifestly promote convenience and/or actually avoid prejudice.” See Hutchison ex rel. Hutchison v. Luddy, 763 A.2d 826, 843 (Pa. Super. 2000). When deciding a motion to bifurcate, the court should carefully consider any dangers that evidence relevant to both issues may be offered at only one-half of the trial. Id.

Pennsylvania Rule of Evidence 411 states

“Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias, or prejudice of a witness.” See Pa.R.E. 411.

In Price v. Guy, infra, the Supreme Court of Pennsylvania has reasoned that evidence of whether a party has selected full tort coverage or limited tort coverage should not be presented to the jury. See Price v. Guy, 558 Pa. 42, 49, 735 A.2d 668, 672 (1999). The jury should merely focus on resolving the factual disputes based on the law, namely determining issues involving liability and compensation for damages. Id. It is prejudicial to allow the jury to consider the extent to which parties have elected to insure themselves. Id. The presentment of evidence of insurance coverage affords the jury the opportunity to determine the issues of liability and damages in accordance with their own personal notions of fairness, cost allocation, and risk management, rather than in accordance with the law. Id.

In Sorbee International Limited v. Chubb Custom Insurance Company, infra, the Superior Court held because a determination of the terms of an insurance policy involved an interpretation of the insurance contract, this determination presented a question of law for the court to decide. See Sorbee International Limited v. Chubb Custom Insurance Co., 735 A.2d 712, 714 (Pa. Super. 1999).

The court finds that it is not a function of the jury to determine whether plaintiffs Richey selected limited tort or full tort coverage, but rather, a function of the court. To allow the jury to hear evidence of the extent of coverage, even if heard separate from a trial on the issues of liability and damages, would be prejudicial. The jury would be afforded the opportunity to decide the issue of coverage selection based on their emotions and sense of fairness, rather than the governing law. The determination of whether plaintiffs Richey selected the limited tort option or the full tort option of their insurance policy involved an examination of the insurance contract and an interpretation thereof. Therefore, the court finds the determination of insurance coverage selection is a question of law for the court. Furthermore, evidence of whether plaintiffs Richey selected full tort or limited tort coverage on their insurance contract could not be presented at a trial on the issues of liability and damages. Therefore, all of the evidence relevant to the issues of liability and damages may be presented at a trial on these issues regardless of whether these issues are bifurcated from the issue of insurance coverage selection.

ORDER

And now, December 4, 2000, the court hereby orders the following:

(1) Defendants Loder’s motion to compel plaintiffs Richey to file a declaratory judgment against Liberty Mutual Insurance Company is denied.

(2) Defendants Peterson’s motion to compel plaintiffs Richey to file a declaratory judgment against Liberty Mutual Insurance Company is denied.

(3) Defendants Loder’s motion for bifurcation of the issues regarding liability and damages from the issue of tort coverage selection is granted.

The court will conduct a trial by jury on the issues of liability, damages and whether plaintiffs Richey suffered “serious injury.” If the jury returns a verdict in favor of plaintiffs Richey, the court will conduct a non-jury trial to determine whether plaintiffs Richey selected full tort or limited tort coverage with their insurance company.


author: WARMAN, J.,

text:
    Rose v. Thomas

      C.P. of Fayette County,
    no. 1186 of 1999 G.D.

      James Higinbotham, for plaintiff.

      Neil Marcus, for defendants.
    June 12, 2002
   WARMAN, J.,

This action is presently before the court for decision following a non-jury trial conducted on February 14, 2002. Marion A. Rose (plaintiff) brought this action to quiet title by presenting a claim of title by adverse possession to lot numbers 27 and 28 of the Jacobs addition plan located in Brownsville, Brownsville Township, Fayette County, Pennsylvania. The lots were twice sold by the Fayette County Tax Claim Bureau for unpaid and delinquent taxes. The chains of title to the subject lots are as follows:

“(A) By deed dated September 28,1922, and recorded in the office of the recorder of deeds of Fayette County, Pennsylvania in deed book volume 428, page 56, David Thomas, a widower, conveyed to Nancy Thomas lot nos. 27 and 28 in a plan of lots known as the Jacobs addition, a copy of which is recorded in the aforesaid recorder’s office in plan book volume 1, page 201.
“(B) By deed dated June 16,1926, and recorded in the aforesaid recorder’s office in deed book volume 412, page 88, Nancy Thomas, a single woman, conveyed to George W. Thomas and Myrtle A. Thomas, his wife, lot no. 27 in the said Jacobs addition. The said George W. Thomas died March 21, 1944. Accordingly, title to lot no. 27 vested in Myrtle A. Thomas as the surviving tenant by the entirety.
“(C) By deed dated August 15,1942, and recorded in the aforesaid recorder’s office on March 16,1965, in deed book volume 1004, page 102, the treasurer of Fayette County conveyed property owned by Nancy Thomas to the commissioners of Fayette County for failure to pay taxes for calendar year 1934. The deed described the property deed as a house and lot situate in Brownsville Borough.
“(D) By deed dated November 9, 1944, and recorded on March 16, 1965, in the aforesaid recorder’s office in deed book volume 1004, page 104, the commissioners of Fayette County purported to convey both lot nos. 27 and 28 in the aforesaid plan to Bessie E. Patterson.
“(E) By deed dated October 31, 1969, and recorded February 19, 1970, in the aforesaid recorder’s office in deed book volume 1089, page 367, Bessie E. Patterson, a widow, purported to convey both lot nos. 27 and 28 to John V. Gresh and Gloria A. Gresh, his wife.
“(F) By deed dated September 18,1997, and recorded December 8, 1997, in the aforesaid recorder’s office in record book volume 2004, page 300, Gloria A. Gresh, a widow, purported to convey both lot nos. 27 and 28 in the aforesaid plan to Spade E. Van Divner. Said deed recites that John V. Gresh died May 1, 1984.
“(G) By deed dated April 17,1967, and recorded April 25,1967, in the aforesaid recorder’s office in deed book volume 1041, page 205, the Fayette County Tax Claim Bureau conveyed 25 vacant lots of land known and identified as lot nos. 27 through 38 and 42 through 54, inclusive, in the aforesaid Jacobs addition plan to Frank Mayhut and Nellie Mayhut, his wife. Said property was sold for nonpayment of taxes by one Adam Jacobs.
“(H) By deed dated October 2, 1971, and recorded October 5,1971, in the aforesaid recorder’s office in deed book volume 1116, page 501, Frank Mayhut and Nellie Mayhut, his wife, conveyed said 25 vacant lots of land, including said lot nos. 27 and 28, to Ray E. Rose and Marion A. Rose, his wife. The said Ray E. Rose died July 25, 1992, thereby vesting title in said premises in Marion A. Rose as the surviving tenant by the entirety.”

The relevant facts are as follows. Plaintiff initiated this action to quite title on or about June 17, 1999, when a complaint was filed on her behalf in the Court of Common Pleas of Fayette County, Pennsylvania, against Myrtle A. Thomas, Nancy Thomas, Spade E. Van Divner, Adam Jacobs, their heirs, successors, and assigns, generally.

On or about June 29, 1999, defendant Spade E. Van Divner was served a copy of plaintiff’s complaint and notice of suit. On or about August 17, 1999, an answer was filed on his behalf wherein he claimed to hold title to the subject lots by virtue of his deed. The plaintiff, however, was unable to locate the remaining defendants and subsequently requested this court to enter an order allowing service of the complaint and notice of suit against Myrtle A. Thomas, Nancy Thomas, Adam Jacobs, their heirs, successors, and assigns, generally, to be made pursuant to Pa.R.C.P. 430(b)(1) which authorizes service by publication once in a legal publication designated by the court and again in a newspaper of general circulation within the county. On July 23,1999, we entered such an order.

Following publication, no answers were filed nor were any appearances entered on behalf of said defendants. Thereafter, following a motion filed on behalf of plaintiff pursuant to Pa.R.C.P. 1066(b)(1), this court entered a decree forever barring them from asserting any right, title, interest, or claim to the subject lots.

A pretrial conference was thereafter held followed by a motion for trial filed on plaintiff’s behalf. We scheduled and held said trial on February 14, 2002. A view was conducted by this court on the same day with the parties and their counsel present.

Plaintiff asserts in this action that she is the fee simple owner of the subject lots by virtue of adverse possession. In support of her claim, plaintiff asserts that since the purchase of the subject lots in 1971, she has been in actual, continuous, distinct, exclusive, visible, notorious, and hostile possession of the same. Based on all of the evidence presented at trial, we agree.

Adverse possession is an extraordinary doctrine which permits one to achieve ownership of another’s property by operation of law; accordingly, the grant of this extraordinary privilege should be based upon clear evidence. Flannery v. Stump, 786 A.2d 255 (Pa. Super. 2001). One who claims title to land by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for 21 years. Conneaut Lake Park Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949). The burden of proving adverse possession of land falls on the one asserting title by adverse possession. Id. When the elements of adverse possession have been satisfied, absolute fee ownership vests in the claimant. Philadelphia Electric Co. v. Philadelphia, 303 Pa. 422, 154 A. 492 (1931).

Actual possession requires acts signifying permanent occupation of land, which are performed continuously throughout the year. Smith v. Peterman, 263 Pa. Super. 155, 397 A.2d 793 (1978). Actual possession of land for the purpose of adverse possession is dominion over the land; it is not equivalent to occupancy. Watkins v. Watkins, 775 A.2d 841 (Pa. Super. 2001). There is no fixed rule by which actual possession of real property by an adverse possession claimant may be determined in all cases; the determination of what constitutes actual possession of property depends on the facts of each case, and to a large extent, on the character of the premises. Id.

Here, the testimony adduced at the time of trial convinces this court that plaintiff exercised such a dominion over the subject lots. Plaintiff testified that when the land was purchased in 1971, it was overgrown and looked like a garbage dump. To make use of the land, plaintiff’s husband hauled the garbage away and improved the lots. Shortly thereafter, plaintiff testified that her husband and brother planted and maintained a very large garden on lots 27 and 28. They maintained the garden until approximately 1991 when her husband died. The garden remains today, although it is significantly reduced in size. After her husband died, plaintiff’s son-in-law plowed, leveled, and planted grass in the area of the former garden, and it is now used as a yard. Plaintiff’s family has regularly cut the grass and maintained the yard since reducing the size of the garden.

Plaintiff and her family have also split, stacked, and stored firewood on the lots. Her grandson played on the lots as a child, and her son-in-law testified that he helped to landscape the same. Additionally, plaintiff and her husband gave a right-of-way to the water company for the purpose of installing a water line across the subject lots. Plaintiff’s husband also made a pathway across the comer of lot 27 and allowed children living in Snowden Patch to use the same on their way to and from school. Based on all of the evidence adduced at the time of trial, we believe that plaintiff has sufficiently established her actual use and possession of the subject lots for a period of time in excess of the statutory requirement.

We also believe that the evidence adduced at the time of trial was sufficient to establish plaintiff’s continuous, exclusive, visible, notorious, and hostile use of the land beyond the 21-year requirement. We will now turn to a discussion of these elements as they pertain to this case.

With regard to continuous use, defendant argued that plaintiff’s use was not continuous because it was not conducted on a 365-day basis, and that during the winter and other such times, there would be obvious long periods when she would not use the same.

Contrary to defendant’s argument, however, an adverse possession claimant need not remain continuously on the land and perform acts of ownership on a day-to-day basis to establish a continuous ownership for purposes of adverse possession. See Watkins, supra; see also, Glenn v. Shuey, 407 Pa. Super. 213, 595 A.2d 606 (1991). A temporary break or interruption, not of unreasonable duration, does not destroy the continuity of an adverse claimant’s possession. Id. In order to break the continuity of possession, there must either be an abandonment or possession must be taken by one disconnected with the previous holder. Kaminski Brothers Inc. v. Grassi, 237 Pa. Super. 478, 352 A.2d 80 (1975). Here, plaintiff did not abandon her possession of the lots, nor was possession taken from her. Quite the contrary is true. We, accordingly, found no merit in defendant’s argument that plaintiff did not use the lots on a continuous basis for purposes of her adverse possession claim.

As to the element of exclusive use, we found no merit in defendant’s argument that plaintiff did not exclusively occupy the subject lots. Defendant argued that in order to establish exclusive possession, plaintiff was required to show that she and she alone used the property, and that because here there is testimony that other people used the property, plaintiff has failed to establish exclusive use.

Plaintiff indeed testified that it was possible that persons other than school children used the pathway made by her husband that cuts across lot 27. There is also testimony from defendant that he and his family members have sporadically used the property. The exclusive character of plaintiff’s possession, however, was not destroyed because other persons occasionally may have passed over or made a sporadic use of the lots in question. To constitute exclusive possession for purposes of establishing title to real property by adverse possession, the claimant’s possession need not be absolutely exclusive; rather, it need only be the type of possession which would characterize an owner’s use. Glenn v. Shuey, supra. We find that plaintiff’s possession of the subject lots as hereinbefore described is consistent with the type of possession which would characterize an owner’s use. We, therefore, reject defendant’s argument that plaintiff’s possession of the subject lots was not exclusive.

Defendant also argued that plaintiff’s use of the property was not visible and notorious. Specifically, defendant argued that plaintiff did nothing to assert an open and notorious use of the subject lots. Again, we do not agree. The words “visible and notorious possession” mean that the claim of ownership by an adverse possessor is evidenced by conduct sufficient to place a reasonable person on notice that his or her land is being held by the claimant as his or her own. Watkins, supra. Here, the testimony leaves no question that plaintiff’s possession and use of the lots were of a visible and notorious nature. We find that plaintiff’s use of the lots, as described hereinbefore, was more than sufficient to place a reasonable person on notice that the lots were being held by plaintiff as her own.

Defendant finally argued that plaintiff’s use of the property was not hostile to the extent that he and others made use of the same. The word “hostile” in adverse possession proceedings is one of art and does not mean ill will or hostility, but simply implies an assertion of ownership rights which are adverse to those of the true owner and all others. Brennan v. Manchester Crossings Inc., 708 A.2d 815 (Pa. Super. 1998), allocatur denied, 556 Pa. 683, 727 A.2d 1115 (1998). Further, if all elements of adverse possession are established, the element of hostility is implied. Here, we find that plaintiff, through her actions and use of the subject lots, has sufficiently asserted ownership rights adverse to all others. We also find that plaintiff has established all other elements of adverse possession. The element of hostility is, therefore, implied. We, accordingly, reject and find no merit in defendant’s argument as to the element of hostility.

Finally, we note that upon view by this court, the lots appear to be a natural continuation of plaintiff’s yard. The lots and plaintiff’s undisputed property surrounding her residence appear to be maintained in the same fashion. Additionally, plaintiff resides in the last house on her street. There is no direct street access to the lots. Observation reveals that they may be accessed either by traveling over plaintiff’s undisputed property or from the street below. However, to access the lots from the street below, you must walk up a hillside through wooded land.

Therefore, for all of the reasons discussed herein, this court will, without further deliberation, enter an order in favor of plaintiff on her action to quiet title based on her claim of adverse possession.

ORDER

And now, June 12,2002, following a non-jury trial on plaintiff’s action to quiet title based on a claim of adverse possession, it is hereby ordered, adjudged, and decreed that judgment is hereby entered in favor of plaintiff and that she is the fee simple owner of lots 27 and 28 in the Jacobs addition plan of lots as found of record in the office of the recorder of deeds of Fayette County, Pennsylvania, in plan book 1 at page 201. It is further ordered, adjudged, and decreed that defendant Spade E. Van Divner, his heirs, successors, and assigns, are hereby forever barred from asserting any right, claim, title, or interest to lots 27 and 28.

      . The parties have agreed to stipulate as to the authenticity of the deeds in each chain of title.