author: ZANIC, P.J,

text:
    Reed v. Nicarry

      C.P. of Huntingdon County,
    No. CP-31-CV-2012-1547
    Dec. 23, 2014
   ZANIC, P.J,

FINDINGS OF FACT

1. The parties are owners of contiguous parcels of land located in Case Township, Huntingdon County, Pennsylvania.

2. The parties trace their respective titles to the land owned by Solomon Mierley, who at his death, devised “my mountain land lying on Sidling Hill...” to his two sons, John and George Mierley. (Plaintiffs’ Exhibits 1 and 2).

3. The single parcel that Solomon Mierley devised to his sons contained approximately 19.47 acres (Plaintiffs ’ Exhibits 3,4,5), although the original subdivision which first described the property called for 18 acres and 40 perches. (Plaintiffs’ Exhibits 1 and 2).

4. In 1893 the Mierley brothers deeded a portion of this property (nine acres and the usual allowances) to Joshua Gosnell. The deed was recorded on July 17, 1893. This parcel is now owned by the plaintiffs. (Plaintiffs’ Exhibit 1).

5. Subsequently, George and John Mierley conveyed “nine acres and the usual allowances” to brother, George Mierley (deeded December 5, 1893, recorded April 4, 1900). This parcel is now owned by the defendants. (Plaintiffs’ Exhibit 2).

6. The common boundary line dividing the properties in question is described in plaintiffs’ deed by the following call; “thence south 76 1/2 degrees east 17 perches to a stone heap, the place of beginning.”

7. The same line is described in the defendants’ deed by the following call: “thence by lands now or formerly of John Mierley, part of this survey, North 76 1/2 degrees West, 17 perches to a stone heap.”

8. The descriptions of the common line have been consistent in all of the conveyances since there was unity of ownership of the two properties over one hundred years ago.

9. The location of this common line is the issue in this case and was the subject matter of the testimony of the two experts.

10. In March of 1980, Lois O. Lucas (a predecessor in the plaintiffs’ title) hired Gary L. Young to survey what is now the plaintiffs’ land. N.T. at 16, 39, 49.

11. In March of 1980, Robert M. Mierley (defendants’ immediate predecessor in title) also hired Gary L. Young to survey what is now the defendants’ land. N.T. at 16, 39, 49.

12. In September of 2012, Kirby Lockard, a surveyor for Africa Engineering, was hired by defendants to prepare a survey of their land. N.T. at 66-67. Lockard testified as an expert witness for the defendants.

13. Surveyor John Young testified as the plaintiffs’ expert. He had assisted when his brother Gary Young conducted the 1980 surveys of both properties, and he performed a retracement survey of the Reed tract in 2005.

14. While both surveyors testified that the deed descriptions of the line were problematic in locating the line in the field, each went about resolving the problem using different methods.

15. Although the original monument identifying Comer #1 was missing in 1980, both surveyors agree that the appropriate placement of Comer #1 is at the summit of Sidling Hill. In 1980 the Young survey set the undisputed Comer#!. N.T. at 18.

16. Both surveyors were able to locate and agree upon the location of Comers #2, #3, #4 and #5.

17. The difference in opinion between the surveyors comes down to the placement of the Comer #6 in 1980 (plaintiffs’ survey) and Comer #7 in 2012 (defendants’ survey).

18. The difference between Corners #6 and #7 creates a triangular area encompassing 0.624 acres.

19. In 1980 the Youngs were unable to locate the “stone heap” referred to in each of the deeds, and they placed what has now been referred to as Comer #6. The Youngs placed an iron pin in the location that they believed best replicated the location of the missing “stone heap.” N.T. at 18.

20. Not surprisingly, when completing a 2005 retracement survey John Young located Comer #6 in the same location where he and his brother had placed it when they performed their 1980 Surveys. N.T. at 32, 36, 95.

21. In their 1980 surveys of the properties at issue, the Youngs changed the bearing and direction of the dividing line in question in an effort to reconcile the distance and area of their surveys to compensate for the missing “stone heap.” N.T. 31.

22. John Young testified that he and his late brother thought “that the distances and the areas of the tracts... lended a lot more evidence to the position of that comer than what the direction did.” N.T. at 31.

23. The Young surveys therefore adjusted the bearing (angle) of the line and its direction in order to accommodate the area.

24. Kirby Lockard of Africa Engineers and Land Surveyors, Inc. discovered the 1980 surveys of the two properties when conducting research in preparation for his survey performed for defendants in 2012. N.T. at 71.

25. In the process of conducting his 2012 survey, Lockard came to the conclusion that Comer #6, as identified by the 1980 surveys and 2005 retracement survey, was not in accord with the defendants’ deed. N.T. at 69.

26. In an effort to compensate for the missing “stone heap,” Lockard maintained the bearing and direction of the lines in question and changed the distances and adjusted the acreage to establish the boundary line. N.T. 74-75.

27. The location of Comer #7 was established by Lockard by holding the deed angle off of the line on top of Sidling Hill. N.T. 72.

28. The angle created between the two lines connecting Comers #1 and #2 and connecting Comers #1 and #7 is precisely the angle called for in each deed. N.T. at 72-75.

29. When reconciling boundaries, the general order of priority is to be given first to valid monuments, next to directions, then to distances and lastly to area. N.T. at 49-51,64,82, 84-88.

30. The general order of priority should be disregarded when the errors are large or the measurements are obviously incorrect. In such a case, other evidence should prevail over the order of priority. N.T. at 87.

31. No credible evidence has been presented to indicate that the general order of priority should be dismissed in favor of an exception.

32. Comer #7, placed in 2012, is the factually correct location for the terminus of the boundary line dividing the properties owned by plaintiff and defendant.

33. Comer #6, placed in 1980, is a factually incorrect location for the terminus of the boundary line dividing the properties owned by plaintiff and defendant.

34. No credible evidence was presented as to a dispute or an agreement between Lois O. Lucas and Robert M. Mierley (who owned the respective properties in 1980) regarding the boundary line.

35. The 1980 surveys prepared by the Young brothers were never recorded.

36. The properties in question were conveyed on several occasions after 1980, however, the deed descriptions conveying the properties did not utilize the surveys to reform the metes and bounds descriptions of the property.

DISCUSSION

We are called upon to decide a Cass Township, Huntingdon County, Pennsylvania boundary line dispute which arises from credible attempts by long-time Huntingdon County surveyors to reconcile the location of the line that separates two properties. Both surveyors were accepted by the court as expert witnesses, and each persuasively justified their positions as to the location of a disputed “comer.”

The boundary line fray began in October of 2012 when plaintiff, Gregory R. Reed, became aware of a railroad spike driven into Dirt Mountain Road which indicated to him the “repositioning” of the comer at the heart of this dispute. We learned at trial that the repositioned comer had been marked with the spike by Kirby Lockard of Africa Engineers and Land Surveyors, Inc. Lockard had conducted a survey for the defendant, Eric L. Nicarry, on September 26, 2012. At the time Gregory Reed encountered the railroad spike, he also encountered “no trespass” signs in an area that he believed he owned.

The Reeds, until this point, were under the assumption that the correct location of the southwestern comer of their property and the northwestern comer of the Nicarry property had been established in 1980 when Gary Young performed surveys on both properties in question. Lockard’s survey in 2012, however, placed the disputed comer for the line in a different location. The difference between the two disputed comers, placed more than three decades apart, creates a triangular piece of wooded mountain ground which amounts to approximately .624 acres. N.T. 86. Plaintiffs’ claim this triangular area and seek to eject defendants from the .624 acre piece of land.

We start our analysis by recognizing that the amended complaint pleads both an action in ejectment and an action to quiet title. Our first job is to decide which action is appropriate. An action to quiet title is an action at law which is subject to Pennsylvania Rule of Civil Procedure 1061. Conversely, ejectment is a possessory action wherein a plaintiff must prove the right to exclusive possession visa-vis proof of paramount title. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d at 89 (citing Dorman v. Brogan, 405 Pa. Super. 254, 263, 592 A.2d 104, 108 (1991)).

We are bound by the Superior Court’s holding in Plauchak v. Boling, 439 Pa. Super. 156, 653 A.2d 671 (Pa. Super. 1995) that “[i]t is procedurally improper to simultaneously commence both an action in ejectment and an action to quiet title regarding the same parcel of real estate.” Id. at 674. “Permitting an out-of-possession plaintiff to maintain an action to quiet title is impermissible because it constitutes an enlargement of the plaintiff’s substantive rights as defined by statute, and thus exceeds the court’s jurisdiction to proceed.” Id. citing Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83, 88-89 (Pa. Super. 1991).

We are further advised that when an action in ejectment is maintained in conjunction with an action to quiet title, the proper course of action is to proceed solely on the action in ejectment. See Moore v. Duran, 455 Pa. Super. 124, 687 A.2d 822, 827 (Pa. Super. 1996), appeal denied, 549 Pa. 703, 700 A.2d 442 (1997); Riverwatch Condo. Owners Ass’n v. Restoration Dev. Corp., 931 A.2d 133, 141 (Pa. Commw. Ct. 2007). As such, we are obliged to review the evidence based on the plaintiffs’ theory of ejectment.

The plaintiffs’ burden in an action in ejectment at law is clear: they must establish the right to immediate exclusive possession. See, e.g., Hallman v. Turns, 334 Pa. Super. 184, 482 A.2d 1284, 1287 (1984); Harbor Marine Co. v. Nolan, 244 Pa. Super. 102, 366 A.2d 936 (1976). Additionally, recovery can be had only on the strength of their own title, not the weakness of defendants’ title. See Artz v. Meister, 278 Pa. 583, 123 A. 501 (1924); Ratajski v. West Penn Manufacturing & Supply Corp., 198 Pa. Super. 588, 182 A.2d 243 (1962). The root of an ejectment action, therefore, rests with the plaintiffs’ ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of possession, but for which they maintain paramount title. Doman v. Brogan, 405 Pa. Super. 254, 263, 592 A.2d 104, 108 (Pa. Super. Ct. 1991). Plaintiffs have proffered two arguments in support of their claim of ownership.

The Reeds primary argument is that “the westernmost common comer [Comer #6] was established by agreement in 1980.” The core of their position is that the location of the line was established and agreed upon by the predecessors in title in 1980 when the Youngs surveyed both properties at the request of the then owners. As such, the Reeds contend that all predecessors in title are bound by the comer established by the Young surveys.

There is no dispute that in 1980 Gary Young established the comer for the boundary line in question. What is disputed is whether the Nicarry’s are bound by the placement of that comer. Plaintiffs repeatedly contended that the 1980 surveys indicate an agreement between the then land owners concerning the location of Comer #6. The plaintiffs’ argument invokes the doctrine of consentable lines.

The fundamental principles of the doctrine of consentable lines trace their Pennsylvania roots to justice Gibson’s opinion in Perkins v. Gay, 3 Serg. & Rawle 327 (Pa. 1817). Justice Gibson opined that “[t]he establishment of this kind of boundary is always a matter of compromise in which each party supposes he gives up for the sake of peace something to which in strict justice he is entitled. There is an express mutual abandonment of their former rights, upon an agreement that, whether they be good or whether they be bad, neither is to recur to them on any pretense whatever, or claim anything that he does not derive from the terms of the agreement. Each takes his chance of obtaining an equivalent for everything he relinquishes, and, if the event turn out contrary to his expectations, so much the worse for him. If there be no intention of fraud, no unfair dealing and neither party has more knowledge of the fact misconceived than the other had, the contract will bind.” Id. at 332.

The Superior Court has clarified that a consentable line could be established in two separate and distinct ways: by dispute and compromise or by recognition and acquiescence. Both methods of proving a consentable line were reviewed in Inn Le’Daerda, Inc. v. Davis, 241 Pa. Super. 150, 360 A.2d 209 (Pa. Super. Ct. 1976). First, the court explained the dispute and compromise method could be established by proof of the following facts:

“(1) a dispute with regard to the location of a common boundary line,
(2) the establishment of a line in compromise of the dispute, and
(3) ‘the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith.’ Newton v. Smith, 40 Pa. Super. 615, 616 (Pa. Super. Ct. 1909).” Inn Le’Daerda, Inc. v. Davis, 360 A.2d at 215.

Plaintiffs present no evidence to establish the first prong of a consentable line. There was no admissible, credible evidence that established a dispute regarding the subject properties in 1980. Plaintiffs attempt to create facts by asserting that “[t]o avoid litigation and confusion Lois O. Lucas and Mr. and Mrs. Robert M. Mierley entered into their own alternative dispute resolution arrangement. They hired one surveyor.” (Plaintiff’s memorandum in support of proposed findings of fact and proposed conclusions of law P.4). This statement is not only a stretch, but it attempts to either manufacture or argue facts not in evidence. While the parties may have hired a surveyor to plot their land, any suggestion that the surveyor was settling a dispute is imagined.

Although plaintiffs failed to prove a consentable line by evidence of dispute and compromise, they can still prove a consentable line by means of recognition and acquiescence. Evidence of recognition and acquiescence requires a two-pronged test. Corbin v. Cowan, 716 A.2d 614 (Pa. Super. 1998). First, there must be a finding that each party involved has claimed the land on his side as his own. The second prong requires a finding that “occupation” occurred for the statutory period of at least twenty-one (21) years. Our courts have long recognized that a boundary line may be established by a long-standing fence without proof of a dispute and its settlement by a compromise. In Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972), the court noted that: “It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not.” Id. 446 Pa. at 319, 286 A.2d at 371, quoting Brown v. McKinney, 9 Watts 565, 567 (Pa. 1840).

In such a situation, the parties need not have specifically consented to the location of the line. Dimura v. Williams, supra [446 Pa.] at 319, 286 A.2d at 3 71. It must nevertheless appear that for the requisite twenty-one years, a line was recognized and acquiesced to as a boundary by adjoining landowners. See Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A.211 (1914); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1012 (1896). Niles v. Fall Creek Hunting Club, 376 Pa. Super. 260, 545 A.2d 926 (Pa. Super. Ct. 1988) (en banc).

Most telling in plaintiffs’ attempt to establish recognition and acquiescence is their failure to prove that the line established in 1980 was ever recognized by anyone other than the plaintiffs in 2005. The 1980 surveys were never recorded, nor did any subsequent deed description ever refer to the 1980 surveys. The property now owned by the Reeds was transferred in 1993, 1994 and again when the Reeds took title in 2000. The Nicarry property was transferred in 1986, 2004, 2006, 2008 and finally to the Nicarrys in 2012. There was never an indication in any of those deeds of the 1980 created boundaries. In fact, the deed descriptions today mirror those from 1883.

This circumstance is not as if there is a fence or a wall dividing two properties in the middle of a neighborhood or in the city for all to see. These properties are in rural Huntingdon County in the woods. We cannot make a finding of recognition and acquiescence when plaintiffs have failed to present any credible evidence that the predecessors in title of either property acknowledged the line in question. The argument seems to be “if no one objected to the surveys, then everyone must have acknowledged and agreed with the survey.” This theory would contradict the long held legal tenant that the plaintiff has the burden to prove their case, and they may not do so through mere speculation.

Plaintiffs have failed to prove a consentable line by either the methods of “dispute and compromise” or “recognition and acquiescence,” and as such, the plaintiffs’ first argument is rejected.

Plaintiffs next argue in the alternative that “the most accurate location for the westernmost common comer is where it is shown on the 1980 Mierley survey and 1980 Lucase survey.” They argue that even if a consented line was not created then the correct location for the placement of the disputed comer and line is through the use of the comer established in 1980.

To establish which comer placement is correct we must endorse one method over the other. Both experts acknowledged their reliance on the text, Boundary Retracement Principles and Procedures for Pennsylvania by Knud Hermanson. The experts agreed that when retracing and relocating lines that are described in deeds there is a priority that is to be followed. Each expert testified that the boundary retracement order of priority is (1) monuments, (2) angles or the directions of the lines, (3) distances along those lines, (4) area. N.T. 49-51, 64, 82,84-88. See also, Baker v. Roslyn Swim Club, Pa. Super. 192, 198 (1965).

There is no dispute that the two surveyors agree as to the common comer identified as Comer #1, located at the summit of Sidling Hill. The surveyors chose different methods, however, in establishing the comer at the bottom of the hill nearest to Dirt Mountain Road. When the plaintiffs’ property was surveyed in 1980, the surveyor changed the bearings as set forth in each deed and attempted to reconcile the distances called for in those deeds. When the defendants’ property was surveyed in 2012, the surveyor held to the bearings called for in the deeds and instead adjusted the distances accordingly.

Kirby Lockard, the expert surveyor hired by the defendants to conduct the 2012 survey, maintained the bearing or direction called for in the deeds and ran the boundary line to the point where it intersected the western line of the properties to establish the comer. As such, Lockard appropriately followed the priority in retracement principles by maintaining direction over distance.

In 1980, however, the plaintiffs’ surveyor changed the direction of the line to establish the comer. There is no dispute that directions should be given priority over distance and area. While plaintiffs acknowledge this fact, they argue that an exception to this protocol exists, and when “errors are large or measurements are obviously incorrect, distances and directions are to be corrected by other evidence or disregarded in favor of other evidence.” (Plaintiffs’ memorandum in support of proposed findings of fact and proposed conclusions of law P.16). While this exception may be an accurate statement based on surveying principles, plaintiffs have failed to present credible evidence to compel our application of the exception.

In support of this argument, plaintiffs assert in bold type that “The Youngs were trying to find the location of the common boundary line that gave each brother ‘9 acres with the usual allowances’” (Plaintiffs’ memorandum in support of proposed findings of fact and proposed conclusions of law P.17). Plaintiffs misstate the facts. Prior to subdivision, the entire tract was one 19.87 acre piece of property which was bequeathed to John and George Mierley as joint tenants in common. (Plaintiffs Trial Exhibit 1.) The brothers therefore owned the entire property together which clearly was the intent of their father in his will. The property was not subdivided until the brothers deeded off a portion of the property to a third party in 1893. This property became the (Reed) tract now owned by plaintiff. (Plaintiffs’ Exhibit 1).

Plaintiffs nonetheless argue that the original intent of the parties was for both tracts to be equal. No evidence supports this claim.

We would be remiss if we failed to discuss a tactic attempted by plaintiffs. In plaintiffs’ memorandum in support of proposed findings of fact and proposed conclusions of law, they argue facts that are not in evidence by inserting an article that was never presented in court. While it is surely appropriate to vociferously argue a point, it is just as inappropriate to attempt to present inadmissible evidence to the fact finder.

In their memorandum, plaintiffs cite an alleged article entitled “GPS and Boundary Retracement” (Plaintiffs’ memorandum in support of proposed findings of fact and proposed conclusions of law P. 9) in an endeavor to discredit the procedures undertaken by the surveyor employed by defendants. This article was not presented in court and had never been referred to in any pleadings or testimony. Plaintiffs attempt to present this in argument is inappropriate and confounding. To allow a litigant to present alleged documentation that was not presented in court, and which has not been subjected to cross-examination, would be error. Such a maneuver would render trials and the presentation of properly presented evidence meaningless. In fact, we cannot be certain where this article was found and we cannot be certain of the context, as the plaintiffs have taken a single paragraph out of the alleged article. While we acknowledge that the author of this injected article was cited by both expert surveyors for the purpose of establishing their methods for creating an order of priority in re-establishing boundaries, neither referred to an the article entitled “GPS and Boundary Retracement.”

Had this article been offered in court, without the author’s testimony, most likely we would have deemed the article inadmissible. Authoritative texts can only be offered as non-hearsay for the purpose of bolstering the credibility of an expert witness implicitly suggesting that this purpose differs from the impermissible objective of attempting to prove the truth of the matter asserted. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (Pa. 2000). When offered at a trial to establish principles or theories from their contents, texts and periodicals fall within the traditional definition of hearsay — an extrajudicial declaration offered to prove the truth of the matter asserted. See Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 621-22, 537 A.2d 334, 338-39 (1988) (en banc). There is no question that if published material is authoritative and relied upon by experts in the field, although it is hearsay, an expert may rely upon it in forming his opinion; indeed, it would be unreasonable to suppose that an expert’s opinion would not in some way depend upon the body of works preceding it. Pennsylvania courts have thus permitted, subject to appropriate restraint by the trial court, limited identification of textual materials (and in some circumstances their contents) on direct examination to permit an expert witness to fairly explain the basis for his reasoning. See P.R.E. 705 (providing that “the expert may testify in terms of opinion or inference and give reasons therefor”); see also In re C.R.S., 696 A.2d 840, 845 n.7 (Pa. Super. 1997).

Both the plaintiff and defendant presented experts in the field of surveying. They were each asked questions relating to the order of priority when performing a retracement survey. (N.T. 49-51, 81-83). The experts agreed that the standard in their industry was enunciated in Knud Hermanson’s book, Boundary Retracement Principles and Procedures in Pennsylvania. Both attorneys appropriately discussed Mr. Hermanson’s methods, not for the purpose of establishing the truth of the matter, but for the purpose of each surveyor explaining the procedures that he uses when confronted with a retracement situation.

Subject to control by the trial court, judicious use of learned treatises may be undertaken on direct examination of an expert witness in appropriate circumstances for the limited purpose of explaining the basis for the opinion. We have permitted such testimony as it relates to properly adduced testimony, however, we have disregarded the arguments presented by plaintiffs which rely on the inappropriately inserted article.

Plaintiffs’ have the burden to prove their right to immediate exclusive possession on the strength of their own title, not the weakness of defendant’s title. They have failed to establish by a preponderance of the evidence that the 1980 surveys and the 2005 retracement survey identify the correct boundary dividing the properties of plaintiffs and defendants. The evidence establishes that plaintiffs are out of possession, and that the defendants have paramount title to the 0.624 acres in question. Plaintiffs have failed to meet their burden, and accordingly we will enter judgment in favor of defendants.

      . During the course of the trial, counsel and witnesses placed marking on 24”x 36” poster board exhibits which ultimately were admitted into evidence by plaintiff. These marking were added for demonstrative purposes during testimony, and the witness and counsel referred to the markings as “comers” #1 through #7. The labeled comers Identified are not part of the original documents. Also admitted into evidence were the identical original sized documents which were presumably used to create the poster boards.

      . Plaintiff Gregory R. Reed, esquire, represented himself and his wife throughout this litigation.

      . We face a situation that brings to mind the age old question “if a tree falls in a forest and no one is around to hear it, does it make a sound?” To analogize, if an iron pin with stones around it was placed in the woods and no one recorded its existence, does it exist as consentable line?

      . Imagine the free-for-all potential for closing arguments that would come into play if courts were to permit such methods. Attorneys would be free to argue in closing to a judge or jury “I Googled it, and I found an article, so it must be true.”

      . In his proposed findings of fact, counsel for defendants attached a page from Hermanson’s Boundary Retracement Principles and Procedures. This document is also hearsay. But it is appropriate, not for the truth of the writing, but to illustrate the methods that each expert employed in proceeding with their surveys. Both surveyors testified to the method of establishing priority in boundary retracements based on the attached portion of the Hermanson text.


source: Caselaw Access Project

author: MARK, J.,

license: Public Domain

text:
    Smith v. Chelsea Pocono Finance LLC

      C.P. of Monroe County,
    No. 6669 CV 2008

      James L. Pfeiffer, for plaintiffs.

      Michael S. Bogdanoff for defendants.
    Dec. 29, 2015
   MARK, J.,

This case is before the court on defendants’ motion for summary judgment. All relevant depositions have been taken, the pleadings have closed, and discovery is complete. The parties have appeared before the court for oral argument and have fully briefed the issues. This matter is now ripe for disposition. For the reasons that follow, we will grant the motion.

Background

This case involves a slip and fall accident occurring on property owned by defendants, commonly known as “The Crossings Premium Outlets” (“The Crossings”). On July 21, 2006, Allyson Smith was patronizing The Crossings with her husband, Scott Smith, and their two children. While walking down a stairwell within the premises, plaintiff slipped and fell, sustaining personal injuries. Although Mrs. Smith does not know what caused her to fall, testimony offered by her husband during his deposition, when viewed in light of the applicable standards, indicates that Mrs. Smith slipped and fell on a french fry or hamburger bun fragment located on the stairwell. After the fall, Mr. Smith assisted Mrs. Smith, informed The Crossings security staff of the incident, and transported his wife to a hospital in Hackettstown, New Jersey.

On December 4, 2008, plaintiffs filed a two-count complaint against defendants. In Count I, Mrs. Smith pleads a claim for negligence in which she seeks damages for physical, mental, and emotional injuries sustained as a result of the fall. In Count 2, Mr. Smith asserts a claim for loss of consortium.

Defendants filed a motion for summary judgment contending there are no genuine issues of material fact on the issue of negligence, so summary judgment is appropriate. Defendants assert that plaintiffs cannot establish the essential elements of their claim for relief since: (1) they have failed to establish the existence of a dangerous condition; and (2) they cannot establish defendants had constructive notice of the alleged dangerous condition that existed in the stairwell.

Discussion

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, summary judgment is appropriate only:

(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery; or
(2) if after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. A motion for summary judgment may only be entered if the pleadings, depositions, affidavits, and all other materials together show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Swartley v. Hoffner, 734 A.2d 915, 918 (Pa. Super. 1999). An issue is “genuine” if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A motion for summary judgment will be granted only in cases free and clear from doubt. Price v. Leibfried, 34 A.3d 1279 (Pa. Super. 2011).

In considering a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Chada v. Chada, 756 A.2d 39, 42 (Pa. Super. 2000) (quoting Adamski v. Allstate Insurance Co., 738 A.2d 1033, 1035-36 (Pa. Super. 1999)). However, the non-moving party may not rest upon the mere allegations or denials of the pleadings to demonstrate that there is a genuine issue of material fact. Pa.R.C.P. 1035.3(a).

The fact that a fall occurred on defendants’ premises does not automatically give rise to liability. See Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 655 (Pa. Super. 2002). Under Pennsylvania law, a successful negligence claim requires a showing by the plaintiff that: (1) the defendant had a duty to conform to a certain standard of conduct; (2) the defendant breached that duty; (3) such breach caused the injury in question; and (4) the plaintiff incurred actual loss or damage. See Krentz v. Consol, Rail Corp., 910 A.2d 20, 27 (Pa. 2007); R.W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005).

In this case, plaintiffs were shopping at The Crossings and had purchased goods prior to the accident. (Allyson SmithDep. 21:04- 24:17, May 19,2010). As such, plaintiffs were business invitees. A landowner owes the highest duty of care to invitees who enter the land for a purpose directly or indirectly connected with the landowner’s business dealings. Gutteridge, supra. A landowner is liable for breach of that duty if “he knows or reasonably should have known of [a defect or] condition on the premises] that involves an unreasonable risk of harm, he should expect that the invitee will not realize it or will fail to protect themselves against it, and the [land owner] fails to exercise reasonable care to protect the invitees against the danger.” Blackman v. Federal Realty Investment Trust, 644 A.2d 139, 142 (Pa. Super. 1995) (citing Restatement (Second) of Torts §343 (1965)). However, a landowner is not an insurer of its invitees. See Martino v. Great Atl. & Pacific Tea Co., 213 A.2d 608 (Pa. 1965); Moultrey v. Great Atl. & Pac. Tea. Co., 422 A.2d 593, 596 (Pa, Super. 1980).

In support of their motion for summary judgment, defendants first contend that plaintiffs have not established the requisite defect or dangerous condition on the property. Viewing the record in light of the summary judgment standards, we are compelled to disagree.

A dangerous condition is defined as a condition that involves an unreasonable risk of harm. Steinhouse v. Herman Miller, Inc., 661, A.2d 1379, 1382 (Pa. Super. 1995). As plaintiffs have correctly pointed out, the determination of whether a condition is dangerous is generally a question of fact for the jury. See Kilgore v. City of Philadelphia, 717 A.2d 514 (Pa. 1998); Bendas v. Township of White Deer, 611 A.2d 1184 (Pa. 1992); Mull v. Ickes, 994 A.2d 1137 (Pa. Super. 2010); Mellon v. City of Pittsburgh Zoo, 760 A.2d 921 (Pa. Cmwlth. 2000).

At bar, the pleadings and testimony offered by way of deposition establish that remnants of food were present on the stairwell, resulting in Mrs. Smith’s fall. While Mrs. Smith does not know what caused her to fall, her husband has indicated that she slipped and fell on a french fry or hamburger bun fragment located on the stairwell.

Given the law and standards summarized above, and applying the equally settled principle that a plaintiff need not know the exact cause of her fail and uncertainties as to the evidence must be resolved in a plaintiff’s favor, McMillian v. Mountain Laurel Racing Inc., 367 A.2d 1106, 1111 (Pa, Super. 1976), Mr. Smith’s testimony, viewed in conjunction with other record evidence, is sufficient at this time establish a jury question as to the existence of the requisite defect or dangerous condition.

Defendants next argue that plaintiffs have not established that defendants had actual or constructive notice of the condition that caused Mrs. Smith to fall. As to this contention, we agree with defendants.

In determining whether a landowner had notice of a harmful condition, the following principles apply:

[I]f the harmful transitory condition is traceable to the possessor or his agent’s acts (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable for the resulting harm. In arelated context, where the condition is one which the owner knows has frequently recurred, the jury may properly find that the owner had actual notice of the condition, thereby obviating additional proof by the invitee that the owner had constructive notice of it. Where however, the evidence indicated that the transitory condition is traceable to persons other than those for whom the owner is, strictly speaking, ordinarily accountable, the jury may not consider the owner’s ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known of it.

Porro v. Century III Associates, 846 A.2d 1282, 1285-86 (quoting Myers v. Penn Traffic Co., 414 Pa. Super. 181, 186, 606 A.2d 926, 929 (1992)).

Initially, plaintiffs do not contend and nothing in the record even remotely suggests that the condition is traceable to defendants or their agents. Similarly, there is no evidence that defendants had actual knowledge that the french fry or hamburger bun was present on the stairwell at the time of the fall.

Regardless, plaintiffs make a passing attempt of arguing that, under Section 344 of the Second Restatement of Torts, defendants had actual notice of the defect because it is one that has frequently occurred. In this regard, plaintiffs assert that, from past experience, defendants knew that the negligent acts of other customers would lead to the dropping of debris on the stairwell. (Plaintiffs’ brief, p. 11). They base this assertion on deposition testimony of defendant’s general manager and maintenance supervisors that they were aware that food was sometimes left on the property, that food from surrounding restaurants was brought onto the property, that there are restaurants in The Crossings and debris accumulates more rapidly in areas surrounding the restaurants, that more inspections occur in areas around the restaurants, that there was a restaurant near the stairway in which Mrs. Smith fell, and that debris had been found in the stairway in the past. In addition, they point to the fact that there was some debris other than the french fry or hamburger bun on the stairway on the day Mrs. Smith fell. There is no merit to plaintiffs’ position.

As a basis for their claim that defendants had actual notice based on past experience, plaintiffs aver that “Restatement (Second) of Torts, Section 344 and its comment (f) have long been the law of Pennsylvania.” We have no dispute with this general proposition; however, application of the law to this case does not save the day for plaintiffs.

Section 344 provides that;

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

Restatement (Second) of Torts, § 344.

Comment (f), in turn, states:

f. Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Restatement (Second) of Torts, § 344 Comment (f).

Plaintiffs’ reliance on Section 344 and its Comment (f) is misplaced for several reasons. First, plaintiffs effectively argue that Comment (f) expands defendants’ liability. This is incorrect. Comment (f) serves to limit liability and requires only that landowners take reasonable precautions against that which might be reasonably anticipated. See Feld v. Merriam, 485 A.2d 742, 745 (Pa. 1984); Miller v. Peter J. Schmitt & Co., 592 A.2d 1324 (Pa. Super. 1991); Restatement (Second) of Torts, § 344. The comment does not convert landowners into inusrers.

Second, the cases on which plaintiffs principally rely, including Miller v. Peter J. Schmitt & Co., supra, are distinguishable from this case in that they involve third persons who are the landowner’s independent contractors, a scenario that does not apply here. Cases involving independent contractors are controlled by Comment (c) to Section 344, which imposes on the landowner a duty to supervise contractors and concessionaires, and not Comment (f) on which plaintiffs rely.

Further, cases inferring actual notice have found notice based on recurring events or conditions which have caused harm to invitees in the past or from which the likelihood of harm to invitees is obvious, not from the mere fact that a specific condition, which causes injury in the present had occurred generally in the past. See Farina v. Miggys Corp. Five & Six Corp., 2010 WL 3024757 (M.D. Pa. July 29, 2010). In Farina, plaintiffs brought suit after plaintiff wife slipped and fell on a pineapple in the dairy aisle of a supermarket. The plaintiffs argued actual notice should be inferred because the defendant knew of the “recurring condition” whereby patrons consumed items from store shelves and threw the rest onto the floor, and acknowledged that it “happens a lot.” After collecting and analyzing cases in which actual notice was inferred, the District Court rejected the plaintiffs’ implied actual notice argument, finding that “inferring notice because small pieces of fruit have made their way onto the ground via third parties would extend [the inferred actual notice] doctrine far beyond its useful precedent. Id. at *7. The District Court Explained:

The present case differs factually from the cases inferring actual notice from a recurring dangerous condition. Most notably, the dangerous condition here has not occurred so often that it has become “so palpable a reality that notice of it could not be more directly brought home to the involved proprietor if it were written in the skies.” While pineapple and other fruit have been found on the ground on multiple occasions, the plaintiffs have not asserted that store patrons slipping on fruit has become an epidemic at Food Town.

Id. (quoting Morris v. Great Atlantic and Pacific Tea Co., 121 A.2d 135, 138).

Here, the evidence to which plaintiff points the court shows only and merely that food and other debris had in the past been found on The Crossings property. To paraphrase the District Court in Farina, there is no allegation or evidence that patrons slipping on food had “become an epidemic,” or, to use the words of Comment (f), that the safety of visitors had been called into question.

Further, and very significantly, there is no indication that the measures taken by defendants to address the litter fell short of the mark. In this regard, when reasonable preventive measures are enacted, liability should not follow faultless “accidents” in the purest sense of the word. Martino, 213 A.2d at 610. See Farino, supra.

Contrary to plaintiffs’ argument, the summary judgment record, including evidence to which plaintiffs themselves point the court, demonstrates that defendants exercised reasonable precautionary steps to prevent accidents from occurring. The evidence establishes, among other things, that there was a trash can within ten feet of the subject stairwell. (Douglas Smith Dep. 23:6-10; Barney Dep. 13:24-14:1). In addition, common areas are subject to “constant rechecking, checking, rechecking.” (Douglas Smith Dep. 27:9-20). This was a “consistent and redundant process.” (Id. at 27:23-24). Finally, as noted, areas around restaurants are inspected frequently.

On this issue, plaintiffs assert that because there is no tangible evidence of inspections, no maintenance logs are kept, and no checklists of cleaning that was performed are maintained, there is no way for managers or supervisors to know whether their employees were actually performing inspections. (Plaintiffs’ brief, p. 11). As such, plaintiffs aver there is no physical evidence to confirm such testimony and summary judgment cannot be granted on mere testimonial evidence. (Id.). This argument is flawed in that, as this court previously held in Dimino v. Wal-Mart Corp., 83 Pa. D.&C.4th 169, 175 (C.P. Monroe 2007) (Zulick, J.), such an argument improperly reverses the burden of proof and, accordingly, will not be a sufficient reason to deny an otherwise properly supported motion for summary judgment. We adopt the holding and rationale expressed in Dimino, and, for the reasons expressed therein, find plaintiffs’ argument regarding the lack of cleaning and maintenance records unavailing.

As to constructive notice, plaintiffs bear the burden of proving that a landowner should have discovered the dangerous condition and corrected it. Porro, supra. A plaintiff can satisfy this burden by demonstrating that a hazardous condition existed for such a length of time that in the exercise of reasonable care, the owner should have known of it. Moultrey, supra. See Farina, supra.

“[W]hat ... amountfs] to constructive notice[ ] of a defective or dangerous condition [ ] existing upon a defendant’s premises, necessarily varies under the circumstances of each case.” Loeb v. Allegheny County, 147 A.2d 336, 338 (Pa. 1959). Although courts use several factors to determine whether a landowner had constructive notice of a dangerous condition, evidence as to the length of time between the occurrence of a hazardous condition and the accident is one of the most important factors to consider. Neve v. Insalaco’s, 111 A.2d 786, 791 (Pa. Super. 2001). The duration of the hazard is important because if a hazard existed for only a short period of time before causing injury, then the landowner would not, even if exercising reasonable care, discover the hazard,

Accordingly, where there is no evidence beyond the mere existence of a defect and the duration of time a hazardous condition existed is not established, courts routinely grant motions for summary judgment as the plaintiff cannot establish that the defendant breached a legal duty owed, a prerequisite to a finding of negligence. See Martino, supra (affirming trial court’s compulsory non-suit where plaintiffs presented no evidence as to how grapes landed on the floor or as to how long any grapes might have been there prior to the fall, and holding jurors are not be permitted to reach conclusions based upon guess or conjecture); Myers v. Penn Traffic Co., 606 A.2d 926 (Pa. Super. 1992) (the presence of a grape on the floor due to an unknown cause for an unknown period of time insufficient to establish constructive notice); Moultry, supra (the presence of a cherry on the floor of the produce section due to unknown cause for an unknown period of time insufficient to establish constructive notice); Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719, 722 (Pa. Super. 1997) (the presence of water on a floor from an unknown source for an unknown period of time insufficient to establish the requisite notice); Dimino, supra (granting defendant’s motion for summary judgment where plaintiff failed to produce evidence sufficient to infer constructive notice). See also, Loeb, supra; Porro, supra.

In the instant case, plaintiffs have not established and nothing in the records even suggests how long the french fry or bun was on the steps before Mrs. Smith fell. Likewise, there is no evidence that any person, including defendants’ employees, defendants’ other customers, or anyone else observed the french fry or hamburger bun fragments on the steps before the accident. In fact, Mrs. Smith did not observe the substance and Mr. Smith testified that he did not notice any debris on the stairwell prior to Mrs. Smith’s fall, despite the fact that he descended the stairwell ahead of her. (Douglas Smith Dep. 14:15-16:5).

Plaintiffs point to the fact that the french fry or hamburger bun was “squished.” However, the mere crushing or smearing of an object is insufficient to infer constructive notice. While the french fry or hamburger bun fragment may have been on the stairway for a long time, it is equally possible that the substance could have been dropped there moments before Mrs. Smith walked by. Moreover, Mrs. Smith herself may have stepped on and squished the french fry or bun. In this regard, Mr. Smith testified that the stairwell was crowded. (Douglas Smith Dep. 22:01-07). Thus, squished or not, when Mrs. Smith came in contact with it, the substance could have been dropped, stepped on, or both shortly beofore Mrs. Smith’s fall. See Toney v. Boardwalk Regency Corp., 2010 WL 148805 (D.N.J. 2010). Stated another way, there is no evidence as to the appearance or condition of the french fry and hamburger bun fragment at the time Mrs. Smith slipped and fell. Accordingly, the condition of the substance after the fail cannot establish, even circumstantially, that the substance was present on the floor long enough to infer constructive notice. Quite simply, the squished nature of the substance does not and cannot establish the requisite constructive notice.

In sum, even viewing the record in the light most favorable to plaintiffs, we find that plaintiffs have failed to show that defendants had actual or constructive notice of the condition on the stairway that caused Mrs. Smith to slip and fall. As a result, Mrs. Smith’s negligence claim cannot stand and defendants are entitled to judgment as a matter of law.

For the foregoing reasons, we enter the following:

ORDER

And now, this 29th day of December, 2014, it is ordered that defendants’ motion is grafted. Judgment is entered in favor of defendants Chelsea Pocono Finance, LLC, Chelsea Property Group, Inc., Chelsea Property Group, CPG Partners, L.P., CPG Holdings, LLC, Simon Property Group, Inc., and Simon Property Group, L.P., and against plaintiffs Ally son Smith and Scott Smith.

      . In this regard, we additionally note that Douglas Smith, general manager of The Crossings, acknowledged that “any foreign object that’s not attached to the stairs could certainly fall in [the] kind of category” of conditions that create a hazard or danger for a fall. (Douglas Smith Dep. 46:13-20, May 19, 2010).

      . Under Pennsylvania law, a claimant may recover for loss of consortium stemming from tortious physical injury to his or her spouse. Darr Constr. Co. v. Workmen’s Comp. Appeals Bd., 715 A.2d 1075, 1079-80 (Pa. 1996). If the underlying negligence claim brought by the claimant’s spouse is dismissed, however, the loss of consortium claim must also be dismissed. Little v. Jarvis, 280 A.2d 617 (Pa. Super. 1971); Scattaregia v. Shin Shen Wu, 495 A.2d 552, 554 (Pa. Super. 1985); Brown v. Peoples Sec. Ins., 890 F. Supp. 411, 416 (E.D. Pa. 1995). Since Mrs. Smith’s negligence claim must be dismissed, Mr. Smith’s derivative loss of consortium claim must be dismissed as well.


author: NEALON, J.,

text:
    Bandru v. Fawzen

      C.P. of Lackawanna County,
    No. 13 CV 3959

      Michael G. Gallacher, for plaintiff.

      Thomas J. Kelley, for defendant.

    March 16, 2015
   NEALON, J.,

ORDER

Plaintiff, Kevin Bandru (“Bandru”), has filed a de novo appeal of the special trial master’s order dated January 8, 2015, granting the motion of defendant, Rose Fawzen (“Fawzen”), to strike Bandru’s objections to records subpoenas that Fawzen has addressed to Bandru’s health care providers and two automobile insurers. The instant discovery appeal involves the proper balance between the liberal allowance of broad discovery in civil litigation and the proscription against overly expansive “fishing expeditions” into matters of dubious relevance. The parties have filed their respective memoranda of law, and following the completion of oral argument on February 24, 2015, Bandru’s appeal was submitted for a decision.

Bandru and Fawzen were involved in an automobile accident on September 1, 2012, at the intersection of Boulevard Avenue and East Market Street in Scranton. (Docket Entry No. 1 at ¶¶ 5-6; Docket Entry No. 5 at ¶¶ 5-6). Bandru contends that as a result of the accident, which was caused by Fawzen’s failure to stop at a red traffic light, he has suffered “a closed head injury, neck pain, jaw pain, clicking sensation in the jaw, headache, concussion, post-concussive syndrome, vertigo, unsteadiness, disorientation, myofascial pain syndrome, cervical strain, cerebral contusion, cochlea injury, tinnitus, memory loss, acute TMD (temperomandibular joint dysfunction), thoracalgia, post-traumatic vision disorder, and shock to his nerves and nervous system, all of which caused him, continue to cause him and will/may cause him for an indefinite time in the future great pain, agony and suffering, both physical and mental.” (Docket Entry No. 1 at ¶7). Bandru seeks to recover damages for past and future economic and non-economic losses. {Id. at ¶¶ 8-12).

Pursuant to Pa.R.C.P. 4009.21 and 4009.24, Fawzen served notice of her intent to subpoena Bandru’s records from the Veterans Affairs Medical Center, Matthew Berger, M.D., Lisa Starr, M.A., Geisinger Community Medical Center, and White Crossings Medical Group, and in response, Bandru filed objections to those subpoenas under Pa.R.C.P. 4009.21(c). (Docket Entry Nos. 22-37). The gravamen of Bandru’s objections is that Fawzen seeks records “going back to [Bandru’s] date of birth more than 52 years ago,” and that the records requests are “overly broad” and seek “information that is not relevant and is not likely to lead to the discovery of admissible evidence.” (Id. at p. 1). Bandru further asserts that he does not object to certain subpoenas which are “reasonably limited in time and scope.” (Id.).

After Fawzen subsequently furnished notice of her intention to subpoena records from Dr. Gregory E. Cali, Dr. Darlene Dunay, Carl W. O’Hara, D.C., Dr. W. Timothy Ward of the University of Pittsburgh Orthopedic Surgery Department, The Wound Institute Research Center, William F. Dougherty, Nationwide Insurance Company, and CNA Insurance Company, Bandru filed additional objections pursuant to Rule 4009.21(c) raising objections that are identical to his earlier objections. (Docket Entry Nos. 41-53). On January 8, 2015, Fawzen presented a “Motion to Strike plaintiff’s objections to subpoenas” to the Special Trial Master in accordance with Lacka. Co. R.C.P. 4000.1. (Docket Entry No. 57). Fawzen alleged in her motion that Bandru testified during his discovery deposition “that he had extensive dental work done at the VA Hospital in the mid-1980s,” “that he was injured in previous motor vehicle accidents,” “that he treated for his injuries from the previous accidents at CMC (now known as Geisinger CMC),” and “that he treated with Dr. Salko of Whites Crossing Medical Group and that he could not recall whether or not he treated with Dr. William Dougherty.” (Id. at ¶¶ 16-19). Fawzen further averred that in Bandru’s interrogatory answers, he “stated that he had seen Drs. Starr, Berger, Salko and Dougherty.” (Id. at ¶ 20). In support of her discovery motion, Fawzen argued that she “is entitled to retrieve and receive documentation relative to [Bandru’s] past medical history and any and all documents pertaining to [Bandru’s] past medical care and treatment to ascertain whether any of the injuries alleged by [Bandru] existed prior to the accident and/or whether [Bandru] was involved in any prior accidents, incidents, etc. in which he sustained personal injuries.” (Id at ¶ 21).

Bandru maintains that “[ajlthough the Special Trial Master agreed that the subpoenas were too broad and needed to be limited in scope, he granted [Fawzen’s] Motion which allows the subpoenas to be served without any restrictions on the information sought.” (Docket Entry No. 61 at p. 3). Bandru acknowledges that he was involved in prior automobile accidents in 1991, 1993 and 1998 in which he sustained a concussion and injuries to his low back, shoulder and knees, but asserts that “[f]or years before this collision, [he] was a personal trainer and ran multiple marathons (and ultra marathons of greater than fifty miles) every year.” (Id. at pp. 1-2,4). According to Bandru, in response to Fawzen’s discovery seeking the identity of all health care providers who have ever treated him during his lifetime, “[h]e identified treatment he received when in the military in 1985 or 1986 for a colon infection, appendicitis and dental work,” as well as “a psychiatrist and psychologist he treated with about 15 years ago for anxiety and depression.” {Id. at p. 2). Bandru argues that “[t]he fact that [he] received dental treatment while in the military 30 years ago has no bearing on his traumatically induced jaw injury from the current collision,” and that “[tjreating for anxiety and depression 15 years ago has no bearing on the current issues.” {Id. at p. 4). Bandru posits that Fawzen’s requests for those medical records and the files of the automobile insurers relative to his 1991,1993 and 1998 accidents are “nothing more than a fishing expedition to try to dig up some ancient record which could be used to distract and misdirect a jury from the issues in this case.” {Id.).

In her opposing brief, Fawzen submits that she has learned through Bandru’s discovery responses that he injured his arm in the 1991 accident, his shoulder in the 1993 accident, and his head in the 1998 accident, which resulted in post-concussion syndrome that caused him to experience “dizziness, memory loss, depression and anxiety.” (Docket Entry No. 63 at p. 3). Fawzen asserts that she is entitled to obtain “the records of [Bandru’s] automobile insurer, Nationwide Insurance Company, pertaining to [his] prior motor vehicle accidents” since Bandru “has placed all of his claimed injuries at issue regarding their origin, extent, duration and impact.” {Id. at pp. 2-3). She further avers that (a) the VA Hospital’s records concerning Bandru’s dental treatment “while in the United States Air Force in the 1980s” could be relevant to his current “claim of jaw pain,” (b) his “past history of pleurisy would be instructive in trial preparation,” and (c) other records in her counsel’s possession reflect that Bandru treated with Dr. Gregory Salko of Whites Crossing Medical Group “as late as 2002 offering a history of concussion, fatigue, malaise, headache, insomnia and hearing loss, all which overlay the injuries presently claimed.” (Id. at p. 4). Based upon that reasoning, Fawzen contends that “[t]he materials sought are highly relevant on their face and must be produced in their entirety without regard to any arbitrary time limitations.” (Id. at p. 2).

Discovery Standard

Under Pa.R.C.P. 4003.1, “discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” Berg v. Nationwide Mutual Insurance Company, Inc., 44 A.3d 1164, 1178 n.8 (Pa. Super. 2012), app. denied, 619 Pa. 719, 65 A.3d 412 (2013). Information is relevant “if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.” Klein v. Aronchick, 85 A.3d 487,498 (Pa. Super. 2014). In the context of discovery, the term “relevant” has greater breadth and flexibility than it does for purposes of admissibility at trial. George v. Schirra, 814 A.2d202, 205-206 (Pa. Super. 2002); Yadouga v. Cruciani, 66 Pa. D. & C. 4th 164, 167 (Lacka. Co. 2004). Any doubts regarding relevancy should be resolved in favor of allowing discovery. Ario v. Deloitte & Touche LLP, 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007); McAndrew v. Donegal Mutual Insurance Company, 56 Pa. D. & C. 4th 1,7 (Lacka. Co. 2002).

“The trial court is responsible for overseeing discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measures to insure adequate and prompt discovery of matters allowed by the Rules of Civil Procedure.” Rome and Haas Company v. Lin, 992 A.2d 132, 143 (Pa. Super. 2010), cert. denied, 132 S. Ct. 852 (U.S. 2011). Although discovery should be liberally allowed, “[djiscovery requests must also be reasonable” and “a court can prohibit the discovery of matters which...would amount to a ‘fishing expedition.’” Koken v. One Beacon Insurance Co., 911 A.2d 1021, 1025 (Pa. Cmwlth. 2006); Sharp v. Travelers Personal Security Insurance Co., 2014 WL 926268, at *10 (Lacka. Co. 2014). As we have previously noted, “[wjhile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’” Brogan v. Rosenn, Jenkins & Greenwald, LLP, 2013 WL 1742689, at *8 (Lacka. Co. 2013) (quoting Brownstein v. Philadelphia Transp. Co., 46 Pa. D. & C. 2d, 463,464 (Phila. Co. 1969)). Furthermore, the discovery rules demand that a party seeking the production of documents must describe the requested materials “with reasonable particularity.” Id. at *7-8 (plaintiff’s request for deponent’s Facebook username and password for “carte blanche access to her private social networking information” was “not properly tailored ‘with reasonable particularity’ as required by the Pennsylvania Rules of Civil Procedure.”).

Evidentiary Record

Fawzen has submitted Bandru’s answers to four interrogatories and six pages from Bandru’s four hour deposition in support of her argument that the records at issue are relevant and discoverable. In response to Fawzen’s interrogatory nos. 30 and 31 requesting the identities of “all physicians who have treated you for any reason” and “all hospital or other health care institutions at which you sought or received treatment for any reason whatsoever,” Bandru listed ten physicians and seven hospitals from whom or at which he received treatment for asthma, pleurisy, microischemia, a concussion, and problems with his left shoulder, knees, and left ankle. (Docket Entry No. 63, Exhibit I at pp. 2,7). Bandra identified sixteen other physicians, including W. Timothy Ward, M.D., of the Department of Orthopaedic Surgery at the University of Pittsburgh School of Medicine, a psychologist, Dr. William F. Dougherty, Psy. D., a chiropractor, Kimberly Krisiak, D.C., and an acupuncturist, Holly Rabbe, L.Ac., who have treated him for his accident-related injuries, which he described as “post-concussion syndrome, constant headaches, balance deficits, vision problems (photophobia, confused vision), noise and social overstimulation triggers from concussion that leave me susceptible to migraine symptoms, tinnitus, TMJD jaw pain and dysfunction, neck pain which creates spasms and constant pain cycle.” (Id. at pp. 3,8). In reply to Fawzen’s interrogatory no. 51, Bandra also confirmed that he injured his low back in an auto accident in October 1991, his shoulder in an accident in September 1993, and both knees in an accident in September 1998 in which he also suffered a concussion. {Id. at pp. 4, 9).

During his discovery deposition, Bandra testified that in 1985 or 1986, he had “some dental work done” and received treatment for “appendicitis” and “a colon infection” at the VA Medical Center “while [he] was in the Air Force.” (Docket Entry No. 63, Exhibit H at p. 16). Bandra indicated that prior to the subject accident on September 1, 2012, he had been hospitalized for “knee surgeries,” “appendicitis in 1986,” “a virus back in 1999,” “pleurisy a few years ago,” and injuries sustained in the 1998 accident. (Id. atp. 144). Last, according to the limited portions of Bandra’s discovery deposition that have been filed of record, Bandra was also treated at the CMC for a concussion that he received in the 1998 accident. (Id. at p. 147).

Fawzen’s notices dated August 4, 2014, pursuant to Pa.R.C.P. 4009.24 indicate her intention to subpoena the records of Dr. Matthew Berger, Lisa Starr, M.A., and Whites Crossing Medical Group, and the “medical records,” “patient billing” and “radiology file” of Geisinger Community Medical Center (CMC) and the Veterans Affairs Medical Center. (Docket Entry No. 63, Exhibit B atpp. 5-8, 11-16, 23-26, 33-40). The subpoenas directed to those healthcare providers and entities do not contain any temporal limitations with respect to the records being sought. (Id.). Moreover, the addenda attached to the subpoenas direct the records custodians to produce “any and all medical records, billing records and films, reports, office notes, progress reports, doctor[’]s notes, charts, summaries, test results, lab tests, evaluations, etc., pertaining to Kevin Bandru.” (Id. at pp. 12, 14, 16, 24, 26, 34, 36, 38, 40).

On August 8,2014, Fawzen served notices of her intent to serve subpoenas upon Nationwide Insurance Company for copies of its claims files, including any “application for benefits, medical records, billing records, payout sheets, claims notes, etc.” with regard to Bandru for dates of loss on September 18, 1993, September 29, 1998, and February 12, 2008. (Docket Entry No. 63, Exhibit D at pp. 1-11). Fawzen sought comparable records from CNA Insurance Company which was the tortfeasor’s liability insurer for the accident on September 18, 1993. (Id. at pp. 12-13). On August 28, 2014, Fawzen provided notice under Rule 4009.24 of her intention to subpoena the medical records of Dr. Darlene Dunay, Dr. Gregory E. Cali, Dr. W. Timothy Ward and the University of Pittsburgh Orthopedic Surgery Department, The Wound Institute Research Center and Dr. William F. Dougherty, the chiropractic records of Carl W. O’Hara, D.C., and additional records from Nationwide Insurance Company. (Docket Entry No. 63, Exhibit F at pp. 1-36). As with Fawzen’s earlier subpoenas, the proposed subpoenas for the hospital and medical records do not contain any temporal limitation or subject matter restriction. (Id. at pp. 10, 12, 14, 16, 18, 22). The subpoenas to be served upon Nationwide Insurance Company identify the relevant dates of loss as November 8, 2004, November 14, 2004, February 2, 2007, August 9, 2007, June 4, 2010, January 16, 2013, and March 14, 2013. (Id. at pp. 20, 24, 26, 28, 30, 32, 34, 36).

Records Concerning Head, Neck, Jaw and Vision Treatment

Under Pa.R.C.R 4003.1 (b), information is discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence. See Cooper v. Schoffstall, 588 Pa. 505, 522, 905 A.2d 482, 493 (2006). Evidence of prior medical complaints are admissible into evidence provided that they are properly “connected to the complaints at issue.” Odato v. Fallen, 848 A.2d 964, 966 (Pa. Super. 2004) (“Since the previous medical complaints of left-shoulder pain were connected to the medical complaint at issue, we find the evidence relevant, and we further find no abuse of discretion or error of law committed by the trial court in denying the [plaintiffs’] motion in limine''), app. denied, 580 Pa. 698, 860 A.2d 124 (2004); Moritz v. Horace Mann Property & Casualty Ins. Co., 2014 WL 5784150, at *3-4 (Lacka. Co. 2014) (because plaintiff did not allege any injury to her hip or a traumatic aggravation of her pre-existing hip condition, evidence of her lifelong hip problems was inadmissible). Similarly, evidence of prior accidents may be admissible if the injury suffered in the earlier accident is connected to the injuries alleged in the pending suit. See Valentine v. Acme Markets. Inc., 455 Pa. Super. 256, 261-262,687 A.2d 1157, 1160 (1997) (trial court erred by allowing evidence of plaintiff’s two prior falls since “[tjhere is also no testimony that [plaintiff] suffered injuries in his two prior falls that are similar to the injuries he suffered in this fall.”); Bodnar v. Mesko, 26 Pa. D. & C. 5th 85, 93 (Lacka. Co. 2012) (precluding evidence of plaintiff’s prior slip and fall incident and automobile accident on the grounds that such evidence “is not properly ‘connected to the complaints at issue’ and must therefore be precluded ‘as irrelevant and prejudicial.’” (quoting Odato, supra)).

As one trial court has aptly observed, “[tjhere can be no question that some part of the plaintiff’s extensive medical history may be of substantial relevance to the issue at hand,” but “[ijn the same light, however, there can also be no question that some parts of the plaintiff’s medical history may be not only irrelevant to the present action but also of a highly private and personal nature.” Slayton v. Biebel, 37 Pa. D. & C. 4th 140, 144 (Crawford Co. 1998). For Bandru’s pre-and post-accident treatment records to be discoverable, they must be reasonably calculated to lead to the discovery of information bearing a connective relevance to the injuries being claimed in this lawsuit. Inasmuch as Bandru has identified Dr. W. Timothy Ward of the University of Pittsburgh School of Medicine and Dr. William F. Dougherty as health care providers who “treated [him] for injuries allegedly resulting from this accident,” their records are clearly discoverable. In addition to those records, and the records of Dr. Tiffany Griffiths, The Hospital for Special Surgery, Northeast Eye Institute and Sears Optical, (see n. 1, supra), Fawzen is also entitled to subpoena the records of Geisinger Community Medical Center from September 29, 1998, to the present since (a) the discovery record reflects that he received treatment there for a concussion that he sustained in an earlier accident on September 29, 1998, and (b) Bandru claims to have suffered a concussion and post-concussive syndrome in the subject accident. Furthermore, inasmuch as the existing discovery record indicates that Bandru also received pre-accident treatment from Dr. Gregory Sálico and Whites Crossing Medical Group for a concussion and headache symptoms, those records are likewise discoverable.

However, Bandru’s past medical records concerning treatment for asthma, pleurisy, microischemia, appendicitis, a virus, a colon infection, “some dental work,” and injuries to his knees and left ankle have no conceivable relevance to the injuries at issue in this litigation. The record submitted for our review is devoid of any indication as to what conditions were treated during which periods of time by Dr. Dunay, Dr. Cali, Dr. O’Hara, and The Wound Institute Research Center. Absent some basis to find that the medical conditions which were treated by those health care providers are possibly “connected to” the complaints or injuries in dispute in this matter, their records are not reasonably calculated to lead to the discovery of admissible evidence. If the medical and insurance records subpoenaed by Fawzen indicate that Bandru did receive pre-accident treatment from those health care providers for head, neck, jaw, or vision symptoms, Fawzen may revisit her request to obtain those records.

The records of Nationwide Insurance Company pertaining to the 1998 accident, in which Bandru sustained a head injury, are also subject to discovery. Although Bandru contends that the insurance records relating to his 1993 accident are not discoverable since he only experienced shoulder pain from that earlier accident, it is conceivable that shoulder symptoms may be attributable to a cervical condition that causes radicular pain which radiates into the shoulder. See, e.g., Cytemp Specialty Steel v. WCAB (Crisman), 39 A.3d 1028, 1032 (Pa. Cmwlth. 2012) (treating physician diagnosed work injury as “cervical radiculopathy causing pain to radiate into Claimant’s shoulder.”), app. denied, 616 Pa.660, 50 A.3d 127 (2002); Long v. WCAB (Integrated Health Service. Inc.), 852 A.2d 424, 426 (Pa. Cmwlth. 2004) (physician testified that claimant complained of “neck pain radiating into her right shoulder.”). As a result, prior complaints of shoulder symptoms may be “connected to the complaints at issue” involving Bandru’s neck.

Therefore, the records of Nationwide Insurance Company and CNA Insurance Company concerning the 1993 accident are reasonably calculated to lead to the potential discovery of admissible evidence. The same cannot be said for Nationwide Insurance Company’s records relative to the 1991 accident since Bandru injured his arm in that accident, but has not alleged any injury to his arm in this litigation. Moreover, assuming arguendo that the dates of loss reflected on the additional subpoenas to Nationwide Insurance Company are not typographical errors, there is no indication whatsoever in the evidentiary record of the putative relevance of alleged accidents on November 8, 2004, November 14, 2004, February 2, 2007, August 9, 2007, February 12, 2008, June 4, 2010, January 16, 2013, and March 14,2013.

“Open-ended, undefined discovery demands are not self-proving.” Young v. Western Pennsylvania Hospital, 722 A.2d 153, 156 (Pa. Super. 1998). Unless the records being sought by Fawzen have some possible relevance to the injuries or claims being contested in this personal injury accident, Fawzen’s quest for those records is tantamount to an impermissible “fishing expedition.” See Papa v. Pittsburgh Penn-Center Corp., 421 Pa. 228, 218 A.2d 783, 789 (1966) (“Testimony concerning any prior fall was not admissible for any purpose unless the injuries from that alleged accident could be connected to those claimed in the present suit, so as to raise the inference of a pre-existing condition.”). Consequently, Bandru’s discovery appeal will be granted and his objections sustained to the subpoenas served upon the Veterans Affairs Medical Center, Dr. Gregory E. Cali, Dr. Darlene Dunay, Dr. Carl W. O’Hara, D.C., and The Wound Institute Research Center, without prejudice to Fawzen’s right to later seek to discover those records upon establishing their potential connective relevance. Bandru’s objections will be overruled with respect to the subpoenas directed to Dr. W. Timothy Ward of the University of Pittsburgh School of Medicine, Dr. William F. Dougherty, Dr. Gregory Salko and Whites Crossing Medical Group, as well as Geisinger Medical Center for treatment related to Bandru’s accident on September 29, 1998, Nationwide Insurance Company for records relative to Bandru’s claims stemming from that 1998 accident, and CNA Insurance Company and Nationwide Insurance Company for records pertaining to Bandru’s 1993 accident.

Psychiatric/Psychological Treatment

Fawzen also seeks to obtain the records of a psychiatrist, Dr. Matthew Berger, and psychologist, Lisa Starr, who reportedly treated Bandru for anxiety and depression fifteen years ago. Although Bandru has averred in his complaint that his accident-related injuries have caused him “great pain, agony and suffering, both physical and mental,” (Docket Entry No. 1 at ¶ 7), he does not claim to have suffered anxiety, severe emotional trauma necessitating treatment, or some other recognized psychiatric condition as a result of the accident on September 1, 2012.

Section 5944 of the Judicial Code is entitled “Confidential communications to psychiatrists or licensed psychologist,” and provides that no psychiatrist or licensed psychologist “shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client.” 42 Pa.C.S. § 5944. Pennsylvania case law interpreting Section 5944 recognizes that a patient may waive that statutory privilege by the filing of a personal injury lawsuit, depending upon whether the plaintiff generally seeks to recover damages for mental anguish, distress, embarrassment and humiliation as components of non-economic loss, see Pa.R.C.P. 223.3, or affirmatively claims damages for anxiety or other designated mental disorders. In Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. 2010), the plaintiff not only generally averred that she sustained permanent “shock to her nerves and nervous system” and “suffered severe physical pain, mental anguish and humiliation,” but further alleged that she experienced “great...frustration and anxiety, and...may continue to be so disabled for an indefinite time in the future.” Id. at 1204 & n.6. Defendant sought discovery of the plaintiff’s prior and subsequent mental health treatment records, and the plaintiff objected to that discovery based, inter alia, upon 42 Pa.C.S.A. §5944. Id. at 1203-04. The trial court found “that allegations of ‘emotional distress, anxiety and mental anguish’ necessitated disclosure of the records at issue.” Id. at 1205 n.8.

On appeal, the Superior Court held that general averments of shock, mental anguish, distress and humiliation in connection with claims for noneconomic damages “neither place a party’s mental condition at issue nor result in a waiver of privilege” Id. at 1205. In contrast, allegations of anxiety or “mental injury, severe emotional trauma requiring treatment, or psychiatric/psychological conditions may, if otherwise relevant, result in a waiver of privilege protecting confidential communications pertaining to prior treatment for those conditions.” Id. Since the plaintiff in Gormley expressly claimed damages for anxiety, a recognized mental disorder, the appellate court reasoned that she “directly placed her mental condition at issue” and made her mental health records discoverable. Id. at 1205-06 & n.9; see also, Rost v. State Board of Psychology, 659 A.2d 626,629 (Pa. Cmwlth. 1995) (“The [psychologist-patient] privilege may be waived by the client...where the client places the confidential information at issue in the case.”), app. denied, 543 Pa. 699,670 A.2d 145 (1995).

In the case at bar, Bandru generally avers that he has suffered physical and mental pain, agony and suffering due to his injuries. However, he does not claim to have suffered any mental injury, severe emotional trauma requiring treatment, or any comparable psychiatric/ psychological condition. Based upon Gormley, Bandru’s mere allegation of mental pain, agony and suffering in connection with his claims for noneconomic loss does not result in an implied waiver of the psychiatrist/psychologist-patient privilege contained in 42 Pa.C.S.A. § 5944. Thus, due to the absence of any claim by Bandru for anxiety, severe emotional trauma necessitating treatment, or some other recognized psychiatric/psychological condition, the records of Dr. Matthew Berger and Lisa Starr are not subject to discovery.

And now, this 16th day of March, 2015, upon consideration of plaintiff’s “appeal from order of discovery master of January 8, 2015,” the memoranda of law submitted by the parties, and the oral argument of counsel on February 24, 2015, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. Plaintiff’s de novo “appeal from order of discovery master of January 8,2015” is granted in part and denied in part;

2. Plaintiff’s discovery appeal is denied and his objections pursuant to Pa.R.C.P. 4009.21 are overruled with respect to the subpoenas to be served upon W. Timothy Ward, M.D., of The University of Pittsburgh School of Medicine, William F. Dougherty, Psy.D., Whites Crossing Medical Group, Geisinger Community Medical Center for all records related to plaintiff’s prior automobile accident on September 29,1998, the records of Nationwide Insurance Company relating to that accident on September 29,1998, and the records of CNA Insurance Company and Nationwide Insurance Company pertaining to plaintiff’s earlier automobile accident on September 18, 1993; and

3. Plaintiff’s de novo appeal is granted and his objections pursuant to Pa.R.C.P. 4009.21 are sustained with regard to the subpoenas to be served upon the Veterans Affairs Medical Center, Matthew Berger, M.D., Lisa Starr, M.A., Dr. Gregory E. Cali, Dr. Darlene Dunay, Carl W. O’Hara, D.C., and The Wound Institute Research Center.

      . Bandru originally objected to Fawzen’s subpoenas directed to Northeast Eye Institute, Planet Fitness, The Hospital for Special Surgery, Dr. Tiffany Griffiths, and Sears Optical but by “Praecipe for Withdrawal of Objections” dated April 25, 2014, and filed April 29, 2014, Bandru withdrew those objections. (Docket Entry No. 39).

      . Under Local Rule 4000.1, discovery motions must initially be presented to and decided by the court-appointed Special Trial Master whose ruling “may be appealed de novo” to the court of common pleas within ten days of the Master’s decision. Fratzola v. Klepadlo, 26 Pa D & C. 5th 533, 537-538 (Lacka. Co. 2012).