author: SYLVESTER, J.,

text:
    Forrester v. Hanson

      J. Davey Yockey, for plaintiff.

      Thomas Goutman and Beatrice O ’Donnell, for defendants.
    December 10, 2004
   SYLVESTER, J.,

Plaintiff, Kenneth G. Forrester, appeals from this court’s order of September 14, 2004, transferring venue to Montgomery County.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff, Kenneth G. Forrester, brought suit on February 10,2003, against original defendants Michael Hanson and Sea Gull Lighting System Inc., demanding $15 million in damages for personal injuries allegedly arising out of a motor vehicle accident that occurred on October 29,2002, in Philadelphia. On April 8,2004, original defendants filed a motion for leave to join additional defendant Gene Z. Salkind M.D., pursuant to Pa.R.C.P. 2252(a), alleging that, after the accident, plaintiff treated with Dr. Salkind, who failed to adequately diagnose, treat, and prevent the progression of plaintiff’s pre-existing neurological impairments. On June 4, 2004, this court granted original defendants leave to join Dr. Salkind, and ordered that a certificate of merit in compliance with the applicable provisions of the MCare Act be filed in conjunction with the joinder complaint. Plaintiff’s motion for reconsideration of the June 4,2004 order was denied on June 21, 2004.

Original defendants served Dr. Salkind with a joinder complaint on June 25, 2004. Dr. Salkind then objected, inter alia, to improper venue in Philadelphia on grounds that all medical treatment rendered by him to plaintiff occurred in Montgomery County. This court sustained Dr. Salkind’s objection to improper venue by order dated September 14, 2004, and ordered the case transferred to Montgomery County. Plaintiff filed a notice of appeal from the aforesaid order on October 12, 2004. In response to this court’s order, plaintiff filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) on October 26, 2004.

LEGAL DISCUSSION

Plaintiff contends that the court erred in transferring venue to Montgomery County pursuant to Pa.R.C.P. 1006(a.l). This contention is without merit.

A trial court is vested with discretion in determining whether to grant an objection to transfer venue, and a reviewing court shall not overturn the trial court’s decision absent an abuse of discretion. PECO Energy v. Phila delphia Suburban Water Co., 802 A.2d 666, 668 (Pa. Super. 2002). The trial court’s determination concerning venue depends on the facts and circumstances of each case and will not be disturbed if the trial court’s decision is reasonable in light of those facts. See Battuello v. Camelback Ski Corp., 409 Pa. Super. 642, 598 A.2d 1027 (1991).

Venue for a medical negligence action is found at Pa.R.C.P. 1006. Pa.R.C.P. 1006(a.1) provides: “Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.” Pa.R.C.P. 1006(c)(2) provides: “If the action to enforce a joint or joint and several liability against two or more defendants includes one or more medical professional liability claims, the action shall be brought in any county in which the venue may be laid against any defendant under subdivision (a.l).” Instantly, Dr. Salkind is the only defendant against whom a medical professional liability claim has been brought. According to the allegations in the joinder complaint, all of the allegedly negligent acts and omissions occurred at either Dr. Salkind’s office located at 727 Welsh Road in Huntington Valley, PA or at Holy Redeemer Hospital located at 1648 Huntingdon Pike, Meadowbrook, PA. In view of these allegations, venue in the instant case is proper only in Montgomery County pursuant to Pa.R.C.P. 1006(a.1) and (c)(2).

Plaintiff argues that the original defendants’ joinder complaint against Dr. Salkind does not assert a medical professional liability claim because the complaint does not assert a claim seeking the recovery for damages or loss, and thus, contends that Rule 1006(a.1) is inapplicable. This position is untenable. A medical professional liability claim is defined as “[a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided.” 42 Pa.C.S. §5101.1 (c). Here, original defendants have joined Dr. Salkind for the purpose of seeking a determination by the jury that Dr. Salkind is responsible for some or all of the monetary damages claimed by the plaintiff. The law makes no distinction between a claim of medical malpractice brought by a plaintiff and a claim of medical malpractice brought by a defendant against a co-defendant.

Plaintiff’s complaint that the court erred in failing to sever the malpractice action from the motor vehicle action rather than transferring both actions to Montgomery County is also baseless. Instantly, the issue at trial is the liability for, and correct apportionment of, an award of damages between two groups of defendants, those responsible for a highway accident and those responsible for the alleged medical malpractice which followed. Generally applicable to all the rules of civil procedure is Pa.R.C.P. 126 which provides that “the rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” This rule is particularly pertinent where multiple parties are involved in a case since the primary intent of the rules is to avoid multiplicity of suits by providing for the adjudication of all rights and liabilities of those concerned in a single suit. Here, severance of the two actions would occasion duplicitous litigation involving the expensive presentation of expert testimony, and, thus, this court properly refused to sever them.

Finally, plaintiff claims that this court’s approval of the original defendants’joinder complaint and its interpretation of Pa.R.C.P. 1006(a.1) improperly allowed forum shopping on the part of the original defendants. This contention is entirely without merit.

Instantly, plaintiff alleges he is catastrophically injured as a result of a motor vehicle accident which the original defendants characterize as a “minor rear-end collision” or “something less than a fender bender,” and demands $15 million in damages from original defendants. Original defendants filed an expert proffer in connection with their motion for leave to file a joinder complaint in which their medical expert concluded that he “do[es] not believe that any of the claimed injuries were caused by the accident, rather these injuries were caused by pre-existing conditions or were caused by Dr. Salkind’s negligent care.” In view of these circumstances, plaintiff’s position that original defendants’ motive to join Dr. Salkind was simply a pretext to secure a change of venue is incredible. Faced with a demand for $15 million in damages, original defendants quite properly joined Dr. Salkind under Pa.R.C.P. 2252 as the person solely or severally liable for plaintiff’s damages.

In view of the foregoing, it is the opinion of this court that its order transferring venue to Montgomery County should be affirmed.


source: Caselaw Access Project

author: BURR, J.,

license: Public Domain

text:
    Bryan v. Moxley

      Anthony J. Sciolla Jr., for plaintiffs.

      John R. Brown and Michael T. McDonnell III, for defendant.
    November 22, 2005
   BURR, J.,

The plaintiff, Sharon Bryan, only, has appealed from the order denying her motion for a new trial in this automobile negligence action in which liability was admitted and the jury found causation against the defendant, but awarded no damages.

The accident in question occurred at approximately 3:29 p.m. on October 12, 2002 when the car driven by the plaintiff was struck in the rear by the defendant’s vehicle at the intersection of Waverly Road and Baltimore Pike in Morton, Delaware County, Pennsylvania. (Complaint, ¶7; 5/2/05 N.T. 61-62.) Plaintiff complained of pain resulting from strains and sprains to her neck, chest, back and knee sustained from the impact. (Complaint, ¶11.) Plaintiff said that, at the time of impact, she felt a “hard blow” in the back of her car and, despite wearing a seatbelt and shoulder harness, she was “thrown forward and backward” inside the car and that her chest had hit the steering wheel, her knees had “hit onto the dashboard,” and “by flinging myself back, I injured my back.” (N.T. 62.) Plaintiff said that paramedics took her directly from the car and to a local hospital where she said she complained to emergency room personnel of pain in her chest, head and knees. (N.T. 63.) Plaintiff testified that she had been given a chest X-ray and “500 Motrin” and then discharged. (N.T. 64.) Plaintiff indicated that she had not seen her family doctor afterward, but had taken a co-worker’s recommendation to go instead to the Right Choice Medical Center in West Philadelphia for treatment. (N.T. 64-65.) Plaintiff’s treatment at Right Choice was under the auspices of Arthur M. Lerner M.D. and Chiropractor, Greg Levin D.C.

Plaintiff described her treatment at Right Choice as consisting of lying under a warm lamp for a period of time, and of undergoing massage all over her body and lower back with an implement she called a “claw,” and of the cracking of her neck. (N.T. 67-68.) Plaintiff said she went to Right Choice for these treatments three times a week initially, then twice a week and “when I’m almost restored,” once a week. (N.T. 68.) Plaintiff testified that additional treatments which she received later on were acupuncture and the “wave” table on which she would lie and feel “a wave of things that were underneath.” (N.T. 69.) Plaintiff indicated that after three months into this therapy she felt much better, that her body and joints were not aching, and that she was feeling discomfort but not pain. (N.T. 70.) When asked to use a pain scale from zero to 10 to rate herself at this point, plaintiff replied, “maybe a zero or a one.” (N.T. 70.)

Plaintiff testified that she missed only the Monday after the accident of work as a private duty nursing assistant for a woman she visited at home and for whom she prepared breakfast, dispensed medication and gave assistance in the use of a walker when the need arose for the patient to use the bathroom and undertake other activities. (N.T. 61, 67, 73.) Plaintiff said she worked Fridays through Mondays from 10 p.m. through 8 a.m. (N.T. 71.) Plaintiff testified that during the three months following the accident, her husband had to help her with the household chores and “the whole mom thing,” and that at the end of that period she started feeling much better. (N.T. 72.) Plaintiff testified that during the time of her treatment, sitting was difficult for her at church and when going out for dinner, and that she didn’t go dancing. (N.T. 74.) Plaintiff stated that when she finished her treatment at the end of February of2003, or four and a half months following the Columbus Day accident, she was totally healed. (N.T. 73.) Plaintiff testified at trial that she is fully recovered from her injuries and that she is doing everything she used to do before the incident occurred. (N.T. 72-73.)

Plaintiff testified on cross-examination that she did not get out of her car before the paramedics came, and disagreed with her prior deposition testimony merely that she did not “remember” doing so in order to assess damage to her vehicle (N.T. 78-79.) Plaintiff said that she had not seen her car before her husband had taken it for repairs, and agreed that her husband was not being presented as a trial witness to attest to any damage thereto. (N.T. 79-80.) It is also here noted that plaintiff presented no post-accident pictures of the vehicle.

The defense contradicted plaintiff’s testimony that her car sustained a “hard hit” and heavy impact in the incident with plaintiff’s emergency room treatment report which stated, “two car collision,” “low impact,” and which noted “low” as the degree of force with which plaintiff’s vehicle had been struck. (N.T. 81; trial exhibit P-1.) Plaintiff responded that she did not remember using those words with medical personnel, and that she had told them only that she had been in an accident. (N.T. 82.) With regard to plaintiff’s assertion that she was suffering from “pretty severe pain” in her chest and head after the accident, the defense confronted her with written indication in the same emergency room record that the severity of her pain at the time had been “mild.” (N.T. 83; trial exhibit P-1.) Plaintiff offered no explanation for the discrepancy, and tellingly interjected at this point that the pain in her chest was “heart pain” from anxiety, as opposed to muscle pain, from hitting the steering wheel for which the X-ray had been taken. (N.T. 84,90.) Plaintiff also denied having the chronic headaches, or “CH,” that appeared in the section of her emergency room report relating her medical history and claimed again that the headache she had complained of at the time had resulted from the accident. (N.T. 84-85; trial exhibit P-1.) The defense further confronted plaintiff’s claim of severe low back pain incurred in the impact with the statement, “denies back pain” that was recorded on the emergency room report. (N.T. 87; trial exhibit P-1.) Plaintiff replied that her back pain grew worse later on as often happens in such circumstances; that she did have back pain in the emergency room; and that she did not know “why would anyone say what they say” otherwise. (N.T. 87.)

The plaintiff offered no expert testimony, but her medical records were read to the jury. (N.T. 100-106.) Plaintiff’s counsel’s remarks in this instance included statements that, “[t]he patient was brought to the emergency department via ambulance from a motor vehicle; that plaintiff was a ‘restrained driver’ who suffered ‘no loss .of conscious [ness]’; ‘[c]ar hit from behind’, ‘[n]egative airbag deployment’; and that she had been placed in a [neck] collar.” (N.T. 100; trial exhibit P-1.) The above-cited emergency room report stated further that plaintiff had “initial complaints of headache and neck pain,” that she had received X-rays of her chest and neck area, and bore mention that plaintiff’s primary complaint of pain was of the “chest” area. (N T. 101; trial exhibit P-1.) Plaintiff’s counsel proceeded to read plaintiff’s Right Choice intake report prepared by Dr. Lerner and which reiterated plaintiff’s description of the accident and noted tenderness and spasm in her neck and lower back. (N.T. 101-102; trial exhibit P-2.) This report also reflects that flexion and extension tests of the mobility of plaintiff’s legs, neck and lower back yielded results in the normal range, and a diagnosis of cervical, thoracic and lumbar strain and sprain, as well as strain and sprain of the left knee. (N.T. 102-104; trial exhibit P-2.) Dr. Lerner prescribed 800 milligrams of Motrin three times a day for pain and 10 milligrams at bedtime of the muscle relaxant Flexeril. (Trial exhibit P-2.)

An intake report dated October 14,2002 (or two days following the accident) from the Right Choice Chiropraetor, Greg Levin, can be found among the materials collected at plaintiff’s trial exhibit no. 2, and mentioned that manipulation and palpation of the affected areas of plaintiff’s musculoskeletal system were positive for pain. (N.T. 104; trial exhibit P-2.) Dr. Levin stated that, with the exception of a flexion range of motion test of the neck area, the results of cervical and lumbar extension and flexion tests were all within the normal range. (Trial exhibit P-2.) This report also mentions that a physiatrist performed a nerve conduction study which yielded negative or normal results. (N.T. 106; trial exhibit P-2.) Plaintiff presented as a third trial exhibit a report of an MRI study done of her lower back which reflected the presence of a disc bulge at the L4-5 level. (N.T. 106.) Nevertheless, plaintiff’s trial counsel, recognizing the danger that this anomaly might be regarded as a pre-existing condition, noted that there is no claim in this case of any effect from disc damage resulting from this accident. (N.T. 106.) It is thus clear from review of the medical records presented by the plaintiff that there was no objective evidence supporting the claims of pain said to have resulted from this accident.

The defense presented no expert witness, but the rigorous cross-examination of plaintiff so as to highlight the differences between her testimony and her recorded statements in the emergency room record renders moot any contention that plaintiff’s trial evidence was undisputed. The defense also countered plaintiff’s testimony regarding the “hard blow” to the back of her vehicle with that of her daughter, Vanessa Bryan, who had been a passenger in the car on the day in question. Ms. Bryan responded in the negative to the query as to whether she had the opportunity to look at the real’ of her mother’s car after the accident, and replied, “I don’t know” when asked why the emergency room report of her own examination indicated that she had reported “minor or minimal damage” to the car. (N.T. 107-108.) Again, neither party presented pictures of the post-impact condition of the plaintiff’s vehicle, nor the testimony of plaintiff’s husband, who, both sides agree, actually looked at the vehicle and purportedly had it repaired. Further, and in spite of plaintiff’s own testimony that the post-accident discomfort complained of in her chest was “heart pain from anxiety,” her attorney argued to the juiy that everyone was concerned about plaintiff’s chest, of which X-rays had been taken to ascertain whether there were fractures. (N.T. 112.) Counsel argued as well, despite the emergency room report that the chest pain was mild, that the X-rays were taken because the pain was intense. (N.T. 84,90,112; trial exhibit P-1.) Nevertheless, plaintiff contended at trial and contends to this day that all of her evidence was thoroughly uncontradicted by the defendant.

The jury decided the question of causation against the defendant, but awarded no damages. Plaintiff’s timely filed motion for a new trial was denied, this appeal followed, and plaintiff has submitted the following concise statement of matters complained of on appeal:

“(1) [The] jury’s verdict which went against the judge’s charge to the j ury and the weight of the evidence should be overturned.
“(2) Is the jury’s verdict contrary to the Superior Court’s opinion in Elliott v. Ionta, 869 A.2d 502 (Pa. Super. 2005)?
“(3) Where there is no dispute as to the cause of the accident and injuries, the jury’s finding of no damages was against the weight of the evidence and warranted a new trial on damages.” (Plaintiff’s/appellant’s, Sharon Bryan’s, concise statement of matters complained of on appeal, p. 1.)

WEIGHT OF THE EVIDENCE

The concise statement reflects that there is no trial court error here alleged and that the gist of this appeal is plaintiff’s belief that the jury’s verdict awarding plaintiff no damages was “manifestly” against the weight of the evidence where “the [Defendant stipulated to liability and the [Pjlaintiff presented medical evidence which the jury found to be the factual cause of the injuries sustained [by her].” (Plaintiff’s motion for a new trial, ¶1.) It is here suggested, however, that plainti IT intended to say that the medical evidence supported the jury’s finding of causation and was not the cause of inj ury itself. In any event, plaintiff averred that the case o (Elliott v. Ionta, 869 A.2d 502 (Pa. Super. 2005) mandated the granting of a new trial on the weight of the evidence grounds where, as here, the jury found causation but rendered zero damages. Id. Elliott, supra, however, involved facts which, although similar to those in the instant action, included a finding by a jury that the actions of the defendant did not cause the plaintiff’s injuries where there had been no disagreement between experts from both sides that injury had in fact occurred.

The Elliott court, nevertheless, cited to legal authorities more on point with the issue sub judice which established that, “while a jury may find that a plaintiff’s injuries are non-compensable despite uncontroverted medical evidence of injury, it may not find that an accident did not ‘ cause’ an injury where liability is not at issue.” Elliott. v. Ionta, supra, 869 A.2d at 509, citing to Kroner v. Kroner, 841 A.2d 141, 145-46 (Pa. Super. 2004) (verdict of no causation was against weight of the evidence where defense expert agreed that plaintiff had suffered injury in the accident); Andrews v. Jackson, 800 A.2d 959, 964-65 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002) (table) (while a jury may find that the plaintiff’s injuries are non-compensable despite uncontroverted medical evidence of injury, it may not find that the accident did not cause an injury where liability is not at issue). The jury in the instant case did find that defendant’s conduct was a substantial factor in causing plaintiff’s injuries. Her reliance upon Elliott v. Ionta, supra, is, therefore, misplaced, as is grounding this appeal on such additional case authorities as: Criswell v. King, 575 Pa. 34, 834 A.2d 505 (2003) (remand for consideration of merits of appeal contesting ajury’s findings of negligence but of lack of causation); Pentarek v. Christy, 854 A.2d 970 (Pa. Super. 2004) (new trial awarded because jury improperly concluded that collision did not cause motorist’s injuries despite defense expert’s concession that it was the cause thereof); and Hyang v. Lynde, 820 A.2d 753 (Pa. Super. 2003), appeal denied, 577 Pa. 681, 843 A.2d 1239 (2004) (table) (new trial awarded where defense conceded injury by plaintiff in accident, but jury found lack of causation). (Plaintiff’s memorandum of law in support of motion for a new trial, pp. 1-3.)

Plaintiff also contended that the jury ignored an alleged charge to the jury that it must award damages if causation were found. A court is bound to charge the jury according to law. Such a charge was never issued because it would not have conformed to the law. The jury was charged as follows:

“Now as you know, because negligence has been admitted in this case, you need to focus initially on the concept of that bridge between negligence and damages. As I told you at the outset, that bridge is called factual cause. Before any plaintiff can recover she must establish that the — in this case, the admitted negligence of the defendant as a factual cause in bringing about harm to her ... if you find that one of the alleged acts of the defendant was negligent and a factual cause of injury— of the harm, that is sufficient to subject the defendant to liability____So you’re being asked to determine whether. the admitted negligence of the defendant was a factual cause in bringing about any compensable harm to Ms. Bryan. ... If you answered the causation question one [as to causation] yes, then you must go on to answer question two, which deals with the damage aspect of this case. However, ladies and gentlemen, you should not infer or imply from these instructions I’m about to give you that you are to award damages simply because instructions on that subject are given to you.” (N.T. 144-47.) (emphasis supplied)

The court went on to define the damages that plaintiff could recover if she met her burden of proof in that regard and concluded this instruction with these remarks:

“ Anf y] award for these types of damages, if any, is not to be determined by what sum you would take to undergo the same adversity. Neither [the] court nor counsel may suggest a figure for these damages to you. On the contrary, this matter is left entirely to you members of the jury....” (N.T. 151.) (emphasis supplied)

Plaintiff took no exception to the wording of the charge, although counsel moved for judgment notwithstanding the verdict at the conclusion of the trial and his motion was denied. (N.T. 152-54, 171.)

Hence, the only viable issue before the court is whether the jury properly found plaintiff’s damages not to be compensable, and clearly, the answer is yes. While it is the law of this Commonwealth that victims must be compensated for their losses attributable to the negligence of another, it is also the law that the jury is not obliged to believe that every injuiy causes pain or the pain alleged. Majczyk v. Oesch, 789 A.2d 717, 724 (Pa. Super. 2001); Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988). Where there is no obvious injury, and/or pain is subjective and has no identifiable objective medical source, it must be believed in order to be compensable. Id; Hawley v. Donahoo, 416 Pa. Super. 469, 611 A.2d 311 (1992). The existence of compensable pain is an issue of credibility and juries must believe the plaintiff suffered pain before they may award any compensation therefor. Davis v. Mullen, 565 Pa. 386, 396, 773 A.2d 764, 769 (2001); Boggavarapu v. Ponist, supra. A jury may find for a defendant despite his or her obvious negligence if it does not believe that the injury suffered by a plaintiff was significant or serious enough to warrant compensation. Andrews v. Jackson, supra; Majczyk v. Oesch, supra; Henery v. Shadle, 443 Pa. Super. 331, 337, 661 A.2d 439, 442 (1995), appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995) (table).

The evidence at trial revealed that plaintiff’s injury required no hospital admission, resulted in one day of missed work and that her treatment consisted of four and a half months of physical massage and heat therapy, at the end of which she said she felt “restored,” and at the end of three months thereof, she described a pain rate of from zero to one on a scale of 10. Plaintiff’s medical records evinced no objective evidence or source for her subjective complaint of pain, and indeed range of motion tests conducted at the beginning of her therapy and a nerve conduction study performed later all elicited results in the “normal” range. It was thus reasonable for the jury to conclude that plaintiff’s injury was not significant or serious enough to warrant compensation, and that it constituted no more than a “transient rub of life” which did not rise to the level of an injury for which damages should be awarded. Van Kirk v. O 'Toole, 857 A.2d 183 (Pa. Super. 2004), appeal denied, 583 Pa. 683, 877 A.2d 462 (2005) (table); Lombardo v. DeLeon, 828 A.2d 372 (Pa Super. 2003), appeal denied, 579 Pa. 704, 857 A.2d 679 (2004) (table); Majczyk v. Oesch, supra; Boggavarapu v. Ponist, supra.

Moreover, the glaring discrepancies between plaintiff’s statements memorialized in the emergency room report of her treatment and her testimony at trial may have led the jury to decide that she was a veritable Scheherazade who wove magnificent self-serving tales of her travails which had little, if any, connection with the truth. A j ury is free to believe all, part, some or none of the evidence presented. Majczyk v. Oesch, supra, 789 A.2d at 725. Simply put, even had her testimony been uncontradicted as plaintiff contends in this appeal, the jury was not required to accept her version of events or the diagnoses set forth in her medical records in whole, in part, or at all. Van Kirk v. O ’Toole, supra; Majczyk v. Oesch, supra; Bezerra v. National R.R. Passenger Corp., 760 A.2d 56, 63 (Pa. Super. 2000), appeal denied, 567 Pa. 708, 785 A.2d 86 (2001) (table).

CONCLUSION

The decision to grant or deny a new trial lies within the discretion of the trial court, and its decision will not be reversed absent an abuse thereof or an error of law. Davis v. Mullen, supra at 766; Lombardo v. DeLeon, supra at 374; Andrews v. Jackson, supra at 962. An appellate court is not empowered to merely substitute its opinion concerning the weight of the evidence for that of a trial judge— its focus instead is on whether the trial judge has palpably abused its discretion, as opposed to whether the appellate court can find support in the record for the jury’s verdict. Zeffiro v. Gillen, 788 A.2d 1009, 1012 (Pa. Super. 2001). The trial court should grant a new trial only where the verdict is so contraiy to the evidence as to shock one’s sense of justice and not where the evidence is conflicting or where the trial court would have reached a different conclusion on the same facts. Davis v. Mullen, supra.

For all of the foregoing reasons, this verdict is not so shocking to one’s sense of justice as to warrant overturning, and is indeed so well grounded in the record and in the law that the decision to refuse a new trial to the plaintiff should not be reversed.

      . The claims of all other plaintiffs were dismissed or amicably resolved prior to trial.

      . The trial was completed in the course of one day and the notes of testimony were published in one transcript booklet. Therefore, all citations to the notes of testimony refer to the transcript dated May 2, 2005.

      . Although the transcript repeatedly refers to this establishment as “Bright” Choice Medical Center, its correct appellation, as obtained from the documentary evidence, is “Right” Choice Medical Center. See trial exhibit P-2, passim.

      . Plaintiff has correctly pointed out that the raising only of a judgment n.o.v. motion before the discharge of the jury did not waive this appeal based on weight of the evidence grounds. Elliott v. Ionta, supra, 869 A.2d at 504. (Plaintiff’s motion for a new trial, ¶3.)


author: GEORGELIS, J.,

text:
    Commonwealth v. Bell

      Todd P. Kriner, for Commonwealth.

      James J. Karl, for defendant.
    December 1, 2005
   GEORGELIS, J.,

Before me is the Commonwealth’s praecipe to have the defendant classified as a sexually violent predator (SVP) pursuant to 42 Pa.C.S. §9795.4(e). The defendant was charged with, and pled guilty to, criminal attempt to commit rape, 18 Pa.C.S. §901(a), a first-degree felony, aggravated indecent assault, 18 Pa.C.S. §3125(a)(7), a second-degree felony, and corruption of minors, 18 Pa.C.S. §6301(a)(1), a first-degree misdemeanor. Convictions for criminal attempt to commit rape and aggravated indecent assault subject the defendant to the registration requirements of Pennsylvania’s Megan’s Law, 42 Pa.C.S. §9791 et seq. Specifically, see 42 Pa.C.S. §9795.1(a) and (b).

The defendant has filed amotion challenging the constitutionality of the sexually violent predator provisions of Megan’s Law. The issues raised in that motion have been adjudicated by the Honorable Paul K. Allison in his May 10, 2005 opinion in Commonwealth v. Heeks, nos. 3809-2003 and 557-2004.1 rely on that opinion and deny the constitutional challenges presented by this defendant.

As required by 42 Pa.C.S. §9795.4(a), an assessment by the Sexual Offenders Assessment Board was ordered and completed. As required by 42 Pa.C.S. §9795.4(e), a hearing was held. At its conclusion, I directed the parties to file proposed findings of fact and proposed conclusions of law, and they have done so.

After reviewing all of the evidence presented at the hearing and the parties’ submissions, I make the following:

FINDINGS OF FACT

(1) Robert M. Stein Ph.D., a licensed psychologist and the member of the board who conducted the assessment, was presented by the Commonwealth, and accepted by the court, as an expert in the field of sexually violent predator assessment. N.T. 3-6.

(2) In making his assessment, Dr. Stein relied on the board’s investigator’s report, police reports, a letter from Bell to the victim’s mother, ChildLine and Children and Youth notes, a pediatric report on the victim, a pre-sentence investigation and prior police reports. N.T. 7-8.

(3) Bell decided not to participate in the assessment, but this did not affect the assessment because Dr. Stein’s opinions are based on past behavior and not on a presentation or interview. N.T. 8.

(4) Dr. Stein based his assessment on an examination of the 15 factors set forth in 42 Pa.C.S. §9795.4(b). N.T. 8-9.

(5) In evaluating sexual deviance, the younger the child, the greater the sexual deviance.

(6) By examining these 15 factors, the board determines if the offender is a SVP by determining: (1) if he has a mental abnormality or personality disorder which predisposes him to committing sex offenses; and (2) if he has engaged in a pattern of predatoiy behavior. N.T. 9 and definition of SVP at 42 Pa.C.S. §9792.

(7) Predatoiy is defined as an “act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” 42 Pa.C.S. §9792 and N.T. 19.

(8) Bell committed the act while the victim was in the vulnerable state of sleeping. N.T. 10.

(9) The mental capacity of the 8-year-old victim was consistent with her age. N.T. 11.

(10) Bell’s act did not include a display of unusual cruelty. N.T. 11.

(11) Bell has a history of violent behavior, including being subject to five protection from abuse orders involving three different women and, in one case, involving the beating of a child. N.T. 16.

(12) Bell was convicted in 2001 of corruption of a minor involving a 13-year-old girl. N.T. 11-12.

(13) Bell has a history of substance and alcohol abuse. N.T. 12.

(14) Bell is a sexual recidivist and has been clinically diagnosed as having paraphilia, not otherwise specified (NOS), because he demonstrated sexual interest in non-consenting persons for a period of greater than six months. N.T. 14.

(15) Bell’s behavior and history, including behavior problems in school, commission of crimes, unstable work history, use of alcohol while taking medication, failures in treatment, repeated violent acts and repeated probation violations, are consistent with the criteria for antisocial personality disorder. N.T. 17.

(16) Bell sustained a significant brain injury which left him in a coma for one year and which could explain his impulse control problems and/or his anti-social personality disorder. N.T. 17.

(17) Bell has a mental abnormality and personality disorder which predisposes him to future sexual offenses. N.T. 18.

(18) Bell’s use of a key to open the victim’s door and his applying KY jelly to her while she was sleeping are indicators that he entered the room for the sole purpose of gratifying himself sexually. N.T. 19-21.

(19) Bell’s actions against the victim, along with his prior history, constitute a predatory behavior pattern. N.T. 21.

(20) The combination of Bell’s predatory behavior pattern and his mental abnormality and personality disorder deem Bell likely to engage in predatory sexual offenses in the future. N.T. 21-22.

(21) Bell meets the criteria for the SVP designation. N.T. 22.

DISCUSSION

In order for an individual to be a SVP, the Commonwealth must prove that the individual meets the requirements by clear and convincing evidence. 42 Pa.C.S. §9795.4(e)(3). A SVP is a person who has been convicted of a sexually violent offense and who is determined to be a SVP due to a mental abnormality or personality disorder which makes him likely to engage in predatory sexually violent offenses. 42 Pa.C.S. §9792. A mental abnormality is a congenital or acquired condition of a person which affects his emotional or volitional capacity in a manner that predisposes him to the commission of criminal sexual acts to a degree that makes him a menace to the health and safety of other persons. Id. An act is predatory when it is directed at a stranger or at a person with whom a relationship has been established, maintained or promoted in order to facilitate or support victimization. Id. As noted, there are two requirements for the SYP designation: the existence of a mental abnormality or personality disorder and the likelihood of future, predatory sexually violent offenses.

As to the requirement of a mental abnormality or personality disorder, Dr. Stein opined with a reasonable degree of certainty, after examining the 15 statutory factors, that Bell suffers from a mental abnormality and personality disorder. He based this opinion on: Bell’s lengthy pattern of anti-social behavior; his 2001 and current offenses indicating a sexual interest in non-consenting individuals over a period of more than six months; his lengthy history of violent behavior; his impulse control disorder; his anti-social personality; his brain injury; his chronic substance and alcohol abuse; and his clinical diagnosis of paraphilia NOS. Even though Dr. Stein was thoroughly cross-examined on this opinion and the reasons for it, he did not change it. I believe the opinion was unrebutted, and I conclude that Bell suffers from a mental abnormality and personality disorder.

As to the second requirement for the SVP designation, i.e., the likelihood in the future of predatory sexually violent offenses, Dr. Stein opined with a reasonable degree of certainty that Bell has demonstrated a predatory behavior pattern which would likely lead him to re-offend. He based this opinion on: (a) Bell’s entry into the victim’s apartment by using a key, his applying KY jelly to the victim and his admission that he could not obtain a sexual release with his paramour, all of which indicate his act had the sole purpose of victimization; (b) the opportunity created by a sleeping victim; (c) his prior offense involving a 13-year-old girl; and (d) his long history of impulsive acts. Again, even though Dr. Stein was thoroughly cross-examined on this opinion and the reasons for it, he did not change it. I believe the opinion was unrebutted, and I conclude that Bell is likely to engage in fixture, predatory sexually violent offenses.

CONCLUSION OF LAW

I conclude that the Commonwealth has met its clear and convincing evidence burden of proof, and, accordingly, I conclude that Bell is a sexually violent predator as defined by Megan’s Law, 42 Pa.C.S. §9791 et seq.

      . An assessment shall include, but not be limited to, an examination of the following:
      “(1) Facts of the current offense, including:
      “(i) Whether the offense involved multiple victims.

        “(ii) Whether the individual exceeded the means necessary to achieve the offense.
      “(iii) The nature of the sexual contact with the victim.
      “(iv) Relationship of the individual to the victim.
      “(v) Age of the victim.
      “(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
      “(vii) The mental capacity of the victim.
      “(2) Prior offense history, including:
      “(i) The individual’s prior criminal record.
      “(ii) Whether the individual completed any prior sentences.
      “(iii) Whether the individual participated in available programs for sexual offenders.
      “(3) Characteristics of the individual, including:
      “(i) Age of the individual.
      “(ii) Use of illegal drugs by the individual.
      “(iii) Any mental illness, mental disability or mental abnormality,
      “(iv) Behavioral characteristics that contribute to the individual’s conduct.
      “(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of re-offense.”


author: KISTLER, J.,

text:
    Siegler v. Heckman

      Kathleen Yurchak, for plaintiffs.

      David B. Lingenfelter, for defendants.
    November 22, 2005
   KISTLER, J.,

Presently before this court is Sarah K. and Allen L. Heckman’s (defendants) motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 6, 2002, plaintiff Brandy Seigler and defendant Sarah K. Heckman were involved in a vehicle accident. On January 30, 2004, plaintiff Brandy Seigler and her husband John Seigler (plaintiffs) filed a petition for bankruptcy pursuant to Chapter 7 of the United States Bankruptcy Code in the U.S. Bankruptcy Court for the Middle District of Pennsylvania. On September 9,2004, plaintiffs received an order of discharge from the Bankruptcy Court. On September 10, 2004, plaintiffs filed a complaint, pertaining to the October 6 vehicle accident, alleging negligence on behalf of defendant Sarah K. Heckman. On September 16,2004, the Bankruptcy Court declared plaintiff’s estate to be fully administered and discharged the trustee. Plaintiffs did not list the automobile accident on their bankruptcy filing and schedule.

DISCUSSION

Defendants contend plaintiffs were required to list all assets and liabilities on a schedule to the Bankruptcy Court pursuant to 11 U.S.C. §521. They also argue that all plaintiffs’ assets, including causes of action that have accrued as of the date the bankruptcy petition was filed, becomes the property of the trustee in bankruptcy. Only if the trustee abandons the claim does that claim re-vest in plaintiffs. Only those claims listed on plaintiffs’ schedule may be abandoned by the trustee under 11 U.S.C. §544(a)-(c). Pursuant to 11 U.S.C. §554(d), defendants argue that any cause of action or claim not disclosed in plaintiffs’ bankruptcy schedule remains the property of the bankruptcy estate and is deemed abandoned by the trustee. Since plaintiffs did not list the automobile accident suit on their bankruptcy schedule, defendants believe plaintiffs lack standing to bring the current suit.

Plaintiffs, on the other hand, argue the case should not proceed simply because the automobile accident claim was not listed in plaintiffs’ bankruptcy petition. Plaintiffs maintain there was no attempt to hide the automobile accident claim when they filed for bankruptcy. Plaintiffs believe they did not have an obligation to include “potential claims” when they filed for bankruptcy.

Plaintiffs cite 11 U.S.C. §350, which provides that “a case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for such other causes.” Plaintiffs also argue it is “absolutely and unconditionally within the province of a bankruptcy court to reopen a previously closed case to administer assets.” Quoting In Re Zinchaic, 406 F.3d 215 (3d 2005). Plaintiffs maintain that David Todd, Esquire will file a motion to reopen with the Bankruptcy Court by November 14, 2005. Based on the court’s holding in Arkansas Company Inc. v. Beneson, 798 F.2d 645 (3d Cir. 1986), plaintiffs argue that the Bankruptcy Court has the power to provide approval to reopen a case nunc pro tunc. Plaintiffs contend Mr. Todd will seek such approval. As such, plaintiffs are seeking to have the automobile accident claim reinstated.

Flaving reviewed the facts and the relevant legal standards, this court does not believe plaintiffs have standing to bring the automobile suit. Put simply, plaintiffs have not received approval from the Bankruptcy Court to reopen their claim. As such, they lack standing at the present time.

ORDER

And now, November 22, 2005, defendants Sarah K. and Allen L. Fleckman’s motion for summary judgment is hereby granted.


author: FORNELLI, P.J.,

text:
    In re Petition of Hilton

      Ronald E. Reitz, appearance limited to preparation and presentation of petition.

      Brie Hilton, pro se.
    October 24, 2005
   FORNELLI, P.J.,

The matter before the court for disposition is a petition to transfer structured settlement payment rights filed by Brie Hilton (petitioner).

Petitioner is a 22-year-old woman with two dependents, Taylor Mikio, age 5, and Dani Mikio, a newborn. (Petition to transfer structured settlement payment rights at exhibit “C”.) Petitioner is unemployed, but she has no mental or physical limitations that would prevent her from working. Id. Moreover, she is actively seeking employment and confident that she will obtain employment quickly. Id.

Petitioner is also the recipient of certain lump-sum payments as a result of the settlement of a personal injury claim. (Petition ¶3.) She is to receive $20,000 on May 10, 2008; $30,000 on May 10, 2013; $35,000 on May 10,2018; and $100,000 on May 10,2023. (Petition ¶3.) She is seeking court approval to assign the lump-sum payment of $20,000 due to her on May 10,2008, to Settlement Funding L.L.C. in exchange for an immediate cash payment of $9,285. (Petition ¶¶5-9.)

Petitioner initially intended to use approximately $7,000 of this amount as a down payment on a mobile home; approximately $600 for three months worth of lot rental; $600 to purchase baby supplies; and approximately $ 1,000 to bring her electric, phone and cable bills current. (Petition at exhibit “C”.) She “believefs] this transaction is in [her] best interest and the best interest of [her] dependents.” Id.

On October 19,2005, a hearing was held on this petition. At that time, petitioner testified that her intentions had changed. She testified that an uncle of her fiancé either had loaned, or intended to loan her (her testimony was not clear in this respect), $24,000 towards the purchase of ahorne located at 162 3rd Avenue, Sharon, Pennsylvania. She now intends to give $5,000 of the lump-sum payment to her fiancé’s uncle, she testified first, that this would be a down payment, and later that this amount would be applied to the principal amount, as her fiancé had previously contributed $1,300 as a down payment; $ 1,000 would be given to her father to “set aside” for her daughters; and the remaining amount would be used to pay off various unspecified bills.

Petitioner also testified that she has previous criminal convictions for simple assault and violation of her probation. She admitted to a history of drug use and stated that her past criminal troubles were drug and alcohol related. She further indicated that she has not worked since 2003 as a result of transportation and family problems. As of the hearing date she remained unemployed, but she indicated that she was still actively seeking employment, and recently had an interview at the Hickory Grill in Sharon, Pennsylvania.

When a person receives an award as a result of a personal injury claim, various payment options exist. For example, she may receive the entire award in a lump sum, or she may elect to receive a portion of the settlement in a series of periodic payments. If an injured person receives a lump-sum settlement and she knows that it is meant to provide for her future needs, she would likely invest it in some manner. Structured settlement agreements serve the same purpose, but instead of investing the money after the settlement, the award and investment are incorporated into the settlement agreement itself, taking into consideration a person’s expected future needs and tailoring the payments accordingly. See generally, Paul J. Lesti, Structured Settlements §19:9.

Structured settlements also serve an important public policy purpose. Id. If an injured person’s award is not properly invested, or if it is wasted, a person may have to turn to state or federal assistance for their care. Id. By structuring the payments over time, the risk that the care of this individual will fall upon society is decreased.

However, after entering into a structured settlement agreement, a party’s circumstances may change, and they may not wish to wait to receive their next payment. They will try to assign, or in effect, sell, their right to a future payment in exchange for immediate cash. A secondary market for structured settlements exists for this exact purpose. There are businesses that will, for a premium, offer instant cash in exchange for an injured person’s future payment. These businesses, such as Settlement Funding, are known as factoring companies.

In order to ensure that an injured person will not be taken advantage of by a factoring company, the General Assembly enacted the Pennsylvania Structured Settlement Protection Act, 40 P.S. §§4001-4009. When the recipient of structured settlement payments wishes to assign a future payment to a third party, she must file a petition with the court. 40 P.S. §4003. This petition must include a disclosure statement submitted by the proposed recipient of the assigmnent that sets forth all relevant elements of the transaction. Id. The purpose of the disclosure statement is to provide the petitioner with sufficient information as to the consequences of the proposed assignment to allow her to make an informed decision whether to assign a future payment.

In addition to the disclosure requirements imposed upon the proposed recipient of a future payment, i.e., the factoring company, the Act also imposes a quasi-guardianship role upon the court. The court must determine that the proposed transaction is in the best interest of the petitioner and her dependents. 40 P.S. §4003(a)(3). This provision admits the reality that a person’s judgment is often clouded by the lure of quick cash; and insures that the public policy considerations involving structured settlements are not usurped by organizations that lure people into assigning future payments for far less than their actual value.

Prior to addressing whether this transfer is in petitioner’s best interest, the court will first address two issues with the disclosure statement. First, the Act requires that all legal fees and processing fees be “itemized.” 40 P.S. §4003(a)(2)(v). The term “itemized” is not specifically defined in the Act, nor has it acquired an unusual or technical meaning. The Statutory Construction Act provides that words and phrases shall be construed according to rules of grammar and according to their common and approved usage. 1 Pa.C.S. §1903. The word “itemized” means simply “to list in detail; to set forth by item.” 7 Black’s Law Dictionary 837.

Here, the legal fees and processing fees are not properly itemized as required by the Act. See e.g., 40 P.S. §4003(a)(2)(v). The disclosure statement merely recites “Legal fees” of $2,000 and “Processing fees” of $200. (Petition at exhibit “D”.) The disclosure statement does not denote the amount of hours worked on the petitioner, the rate per hour, the expenses claimed to be “Processing fees” nor does it otherwise provide petitioner with any meaningful basis to evaluate the reasonableness of these fees.

With respect to the term “Processing fees,” the term itself is far too general to be satisfied by merely stating an amount without any supporting information. It is impossible to determine, based on the mere recitation of an amount, exactly what type of “processing” went into this petition, and also whether this “processing” was truly worth $200.

Next, the discount rate used in the disclosure statement appears to be out of date. The disclosure statement must include the discount rate used in determining the discounted present value of the payments. 40 P.S. §4003(a)(2)(iii). The discounted value of the future payment is the amount the person would need to invest today, at the current interest rate, in order to have the future amount available at the future date. For example, at the current discount rate of 5.0 percent (IRS Rev.Rul. 2005-57 table 5), a person would need to invest $78.35 to have $100 in five years.

The discounted present value of future payments is to be determined by discounting such payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service. 40 P.S. §4002. (emphasis added)

On the date this petition was filed, September 2,2005, the applicable federal rate for determining the present value of an annuity was 5.0 percent. IRS Rev.Rul. 2005-57 table 5. The petition incorrectly uses the discount rate as of May 11,2005,5.20 percent. (Petition f9c); see also, IRS Rev.Rul. 2005-27. As of the date the petition was filed, the most recently published rate was 5.0 percent, not 5.20 percent. The present value of petitioner’s $20,000 future payment, based on a 5.0 percent discount rate over a 30-month period, is $17,711.28, or $517.54 more than the amount listed in the disclosure statement. See petition at exhibit “D”.

Petitioner should know the most recent, accurate, present value of her lump-sum payment, calculated with the most recent available discount value, in order to truly make an informed decision whether to assign this payment.

Although the errors in the disclosure statement may be corrected, a proper itemized listing of all fees and a correct present value calculation will not cure the overwhelmingly one-sided nature of this proposed assignment. This transaction represents exactly the type of abuse the Act was designed to prevent. In exchange for assigning to Settlement Funding her $20,000 payment on May 10, 2008, petitioner will receive $9,285 in immediate cash. In essence, Settlement Funding is loaning her money at between 33 percent and 36 percent annually, depending upon when Ms. Hilton receives the payment. (The cash amount includes fees; Peachtree Funding is actually paying her $11,485, but deducting $2,000 for legal fees and $200 for processing fees.)

Obviously, to induce anyone to loan them money a person will have a pay interest. Interest is the cost of credit. The interest rate will necessarily correlate to the credit-worthiness of the borrower, i.e., a high-risk borrower will have to pay a greater rate of interest than a low-risk borrower. No information is available about petitioner’s credit-worthiness or credit rating, nor is any necessary in this case. This proposed transaction is actually a secured loan. Barring some type of catastrophe, there is no risk that Settlement Funding will not receive the $20,000 payment on May 10,2008 from Transamerica Annuity Service Corporation, the structured settlement obligor. It is doubtful that many lenders will require a 33-36 percent interest rate on a secured loan.

Although petitioner’s desire for immediate cash in light of the recent birth of her child is certainly understandable, she has not set forth any basis for the court to conclude that entering into this specific transaction, which essentially allows her to incur a secured debt at an interest rate in excess of 33 percent per year, is in her best interest. Moreover, she testified that she intended to give her father $1,000 of this money to “set aside” for her daughters’ future needs. She stated that $500 for each child would be placed into some type of interest bearing account. Petitioner was unsure of exactly the type of account, but she was certain it would be an interest bearing account, possibly a certifícate of deposit.

If petitioner were to invest $1,000 as of the hearing date, October 19, 2005, in a two and one-half year certificate of deposit, representing the approximate time between the hearing date and the date she will receive her next lump sum payment, at the highest interest rate available locally of 4.55 percent, this $1,000 investment would be worth $1,122.23 on May 20,2008. At the current discount rate of 5.0 percent, $1,000 of the present value of her next structured settlement payment would be worth $1,134.82 onMay 20,2008. It wouldnot be in the best interests of petitioner, nor her children, to take out a secured loan and pay over 30 percent interest, in order to invest money at less than five percent interest. When the cost of this proposed transaction is combined with even the highest locally available interest rate, the net rate earned on this proposed investment would be approximately -25 percent to -30 percent. Petitioner and her children would be far better off if she left the structured settlement untouched.

What is specifically troubling about this petition is that petitioner is acting without the assistance of counsel. Petitioner has clearly been made aware that she has a right to counsel, and she has waived that right. (Petition at exhibit “E”.) It is also clear that Swartz Campbell L.L.C. has been retained solely to prepare and present this petition and has provided petitioner with no professional advice with respect to the advisability or implications of the proposed transfer. (Petition ¶20.) But, it is doubtful that petitioner truly understands the consequences of her waiver or her need for professional advice when entering into a complex transaction of this nature.

The Pennsylvania Legislature specifically provided for the court to determine whether this transaction is in her best interests. Llowever, the court cannot advise petitioner, nor assist her in negotiating for and obtaining an assigmnent that would actually be in her best interest.

As previously noted, this disclosure statement indicated that petitioner will incur legal fees of $2,000, and yet she will remain unrepresented and uncounseled. Petitioner, in lieu of paying $2,000 in legal fees for the mere preparation and presentation of a petition, would be far better off hiring an attorney or a financial advisor who could explain to her the true consequences of assigning this or any future lump sum payments; and assist her in negotiating for and obtaining an immediate payment that better reflects the present value of her next payment. If petitioner intends to use a portion of any of the immediate cash proceeds from assigning a future payment to pay legal fees, she should pay these fees to someone willing to provide her with the full benefits of legal representation, including independent advice and counsel regarding the advisability of the proposed transaction.

It is clear that petitioner’s circumstances recently changed, specifically due to the recent birth of her new child. Furthermore, there is little doubt that any single mother with two young children, such as petitioner, could use additional immediate cash. But petitioner stresses that she does not need this money to meet her daily needs and expenses. (Petition at exhibit “C”.) She also testified that her fiancé was providing support for her and the two children. Petitioner has no current needs so dire and urgent that she should be forced to turn over to Settlement Funding 54 percent of the present value of her next lump sum payment.

Simply put, on May 10, 2008, approximately 32 months from this date, petitioner and her two children will need the additional $11,485 far more than Settlement Funding.

An appropriate order of court will follow.

ORDER

And now, October 24,2005, the petition of Brie I-Iilton to transfer structured settlement payment rights is denied for the reasons set forth in the accompanying opinion.

      . Settlement Funding is also referred to in the pleadings as “Peachtree Finance Company L.L.C.” (Petition at exhibit “B” 1[H); “Peachtree Settlement Funding L.L.C.” (Petition at exhibit “C”); and simply “Peachtree.” (Petition at exhibit “C”.)

      . There is a strong incentive for factoring companies to comply with the Structured Settlement Protection Act. The Internal Revenue Service imposes a tax equal to 40 percent of the factoring discount on any person who acquires the right to receive a structured settlement payment. 26 U.S.C. §5891 (a). However, this tax does not apply if the transaction is approved in advance under the authority of an applicable state statute by a state court. 26 U.S.C. §598i(b)(2)(B)(ii). To avoid the possibility of incurring a 40 percent tax, Settlement Funding specifically required court approval as a condition precedent to any obligation on its part. (Petition at exhibit “B” fD.2.)

      . The court notes that in a fairly recent case in the Superior Court of Connecticut, Settlement Funding L.L.C. also attempted to charge a $2,000 legal fee and $200 processing fee without properly itemizing these expenses. Davis v. Travelers Casualty and Surety Company, no. CV20815609, 2002 WL 1818733 (Conn. Super. 2002).

      . A 30-month period was used as an estimate based on the length of time between the date of this order and any possible disbursement of funds.

      . This interest rate was calculated using the formula:
      / = (FV/PV)-t. [/ = interest rate, FV =■ Future Value, PV- Present Value t = Time.] (www.netmba.com/fmance/time-value/future).
      The rate of interest depends upon how soon petitioner would receive the money. She would likely receive the cash payment approximately 2.67-2.5 years prior to the due date for her next lump sum payment. At 2.5 years her interest rate is approximately 36 percent; at 2.67 years, her interest rate is 33 percent. Pennsylvania has no civil usury statute, nor does the current Pennsylvania Crimes Code, 18 Pa.C.S.\ §101 et seq., define the crime of usury. The prior Penal Code defined “criminal usury” as charging, taking or receiving any money, things in action or other property as interest on the loan at an annual interest rate exceeding 36 percent. 18 P.S. §4806.1(h). This section may continue to be in force in view of 1 Pa.C.S. §1952, relating to disposition of amendments of existing statutes incorporated into and repealed by a code at the same general assembly. 18 P.S. §4806.12000 Main Volume Historical and Statutory Notes.

      . As of October 19, 2005, the highest available local interest rate for a 2.5 year CD in the Sharon, Pennsylvania market was 4.55 percent through ING Direct. See Comparison Table of Institution Rates for 2.5 year CD in Sharon PA, available at www.bankrate.com.


author: GEORGE, J.,

text:
    Pennsylvania Builders Association v. Carroll Valley Borough

      Loudon L. Campbell, for petitioners.

      Thomas Campbell, for respondent.
    October 14, 2005
   GEORGE, J.,

This matter comes before the court on a petition for review of the decision of the Pennsylvania Secretary of Labor and Industry. The petitioners, Pennsylvania Builders Association, Builders Association of Adams County, Terry Stem d/b/aTLS Carpentry, Dannie W. Holsinger and Ann M. Holsinger and STIC Inc. (the Builders), ask this court to overturn the decision of the Secretary of Labor upholding the validity of ordinance no. 2-2004 (relating to fire flow requirements and residential sprinklers) enacted by Carroll Valley Borough, Adams County, Pennsylvania, on September 14,2004.

Carroll Valley Ordinance no. 02-2004 essentially requires that new residential construction in the borough include the installation of automatic sprinkler systems and water flow alarms. Carroll Valley cites the Pennsylvania Construction Code Act (the Act), 35 P.S. §7210.101 et seq, as authority. The Act was created by the legislature, inter alia, to provide uniform construction standards and regulations throughout the Commonwealth. The Act authorizes the Department of Labor and industry to adopt uniform regulations applicable to the construction, alteration, repair and occupancy of all buildings. Once regulations are adopted by the Department of Labor, those regulations preempt local legislation and effectively repeal and rescind any statute or local ordinance affecting new construction. 35 P.S. §7210.104(d). However, municipal building code ordinances, effective July 1,1999, that are equivalent to or exceed the regulations promulgated under the Act shall remain in effect until such time as the provisions fail to equal or exceed those minimum requirements. 35 P.S. §7210.303(b). Municipalities may enact ordinances after the effective date of the Act provided that the requirements of the ordinances are equivalent to or exceed the minimum requirements promulgated under the Act. 35 P.S. §7210.503. Such ordinances, however, are subject to review by the Department of Labor to confirm their compliance with the Act’s minimum requirements. Id. Regardless of whether the ordinance meets or exceeds the minimum requirements of the Act, any aggrieved party may file a challenge with the Department challenging the propriety of the local ordinance in light of the provisions of the Act. 35 P.S. §7210.5030).

On October 13, 2004, the petitioners filed a challenge pursuant to section 7210.5030) with the Department of Labor and Industry. After a hearing, the Secretary of the Department of Labor and Industry issued an adjudication and order upholding the validity of Carroll Valley Ordinance no. 02-2004. The Builders have filed a timely appeal with this court. Review by this court is appropriate pursuant to 42 Pa.C.S. §933(a)(3) (relating to appeals from government agencies) and 35 P.S. §7210.504 (relating to appeals under the Construction Code Act).

When reviewing an appeal from an agency decision, the trial court is effectively functioning as an appellate court. See e.g., City of Pittsburgh v. Kisner, 746 A.2d 661, 666 (Pa. Commw. 2000). Where a full and complete record is made of the agency proceedings, the role of a trial court in exercising its appellate function is limited to determining whether the agency’s findings are supported by substantial evidence, whether the proceeding was conducted in compliance with the procedural provisions of local agency law, whether an error of law was committed, or whether constitutional rights were violated. Gilotty v. Township of Moon, 846 A.2d 195, 198 (Pa. Commw. 2004) (citing City of Pittsburgh, cited above).

The cornerstone of the Builders’ challenge rests upon the statutory construction of section 503(j)(2) of the Act. That section provides:

“(2) The department shall review any ordinance which would equal or exceed the minimum requirements of the Uniform Construction Code based on the following standards:
“(i) that certain clear and convincing local climatic, geologic, topographic or public health and safety circumstances or conditions justify the exception;
“(ii) the exception shall be adequate for the purpose intended and shall meet a standard of performance equal to or greater than that prescribed by the Uniform Construction Code;
“(iii) the exception would not diminish or threaten the health, safety and welfare of the public; and
“(iv) the exception would not be inconsistent with the legislative findings and purpose described in section 102.” 35 P.S. §7210.503(j)(2).

Although the Builders concede that the ordinance is in compliance with subparagraphs (2)(ii) and (2)(iii), they argue that the ordinance violates subparagraphs (2)(i) and (2)(iv). As such, the Builders suggest that the Secretary committed both an error of law and an abuse of discretion in upholding the validity of the ordinance. Specifically, the Builders claim that the Secretary committed an error of law in interpreting the meaning of “local” under subparagraph (2)(i).

Although the Secretary did not specifically address issues related to the statutory construction of the legislature’s use of the word “local,” a fair reading of the decision reveals that the Secretary rejected the Builders’ argument that the use of the word “local” required a showing of conditions “confined to a particular place” and “non-existent elsewhere.” The Builders suggest that this interpretation constituted an error of law. They read the statutory language as requiring a showing that the conditions at issue are confined to a municipality and not widespread or general across the state. In support of their argument, they suggest that the subsections of the legislation must be read in pari materi with each other. When doing so, they conclude that the legislative findings and purpose as described in section 102 require a restrictive application of the word “local.”

Since the resolution of the issues raised by the Builders requires the interpretation of the meaning of the word “local,” I will begin my analysis by applying the Rules of Statutory Construction. The objective of statutory construction is to determine the legislative intent. Council of Middletown Twp. v. Benham, 514 Pa. 176, 185, 523 A.2d 311, 315 (1987). When the language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning. 1 Pa.C.S. §1921(b); The Philadelphia Eagles Football Club Inc. v. City of Philadelphia, 573 Pa. 189, 216, 823 A.2d 108, 127 (2003). Similarly, non-technical words and phrases, which are not defined, should be interpreted according to their ordinary usage. Commonwealth v. Kelley, 569 Pa. 179, 186, 801 A.2d 551, 555 (2002). Historically, the courts of this Commonwealth generally use dictionaries as source material to determine the common and approved usage of terms. Fogle v. Malvern Courts Inc., 554 Pa. 633, 637, 722 A.2d 680, 682 (1999); Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988).

Interestingly, both parties in their briefs have cited respective dictionary definitions to support their arguments. The Builders suggest that the legislature’s use of the word “local” was intended to require exclusive features in a municipality which are not apparent elsewhere in the state. On the other hand, the borough suggests that “local” refers only to conditions which pertain to a particular area or place. An independent review of Webster’s Third New International Dictionary (unabridged), 1993, reveals that each cites a different sense of the meaning of “local” as segregated in the dictionary entry:

''Local 1: characterized by or relating to a position in space: having a definite spatial form or location . . . 2: characterized by, relating to, or occupying a particular place: characteristic of or confined to a particular place: not general or widespread” Webster’s Third New International Dictionary, 1993 (unabridged).

I find the Builders’ interpretation to be overly restrictive. A plain reading of the statutory language does not require that the local conditions be unique. Rather, common sense suggests that the exception is justified where there are clear and convincing climatic, geologic, topographic, or public health and safety circumstances relating to a particular place.

Reading the statute in pari materi does not lead to a different result. Undoubtedly, section 503(j)(2)(iv) requires that legislation that exceeds the minimum requirements of the Act be consistent with the legislative findings and purpose. This provision, however, does not necessarily lead to a conclusion espousing a restrictive interpretation of the term “local.” The Act is intended not only to encourage uniformity in construction, but also to provide for the protection of life, health, property and environment and for the safety and welfare of the general public and occupants of buildings and structures. 35 P.S. §7210.102(b)(1). In this regard, the Act sets the minimum standards for construction with specific provisions permitting additional regulation where the needs of a particular municipality justify the same. Certainly, the Act attempts to eliminate unnecessary expenses and restrictive regulations which are obsolete, conflicting or duplicative. 35 P.S. §7210.102(b)(4). Nonetheless, reading the legislation in its entirety reveals a legislative scheme aimed at setting minimum standards in construction, which may be exceeded where a municipality has particular needs that justify additional regulations. Reading the legislation in pari materi, I find nothing that leads to the conclusion advocated by the Builders. To the contrary, acceptance of the Builders’ argument would, in effect, disregard the clear language of the legislation under the pretext of pursuing its spirit in violation of the instruction from our appellate courts. See generally, Ramich v. W.C.A.B. (Schatz Electric Inc.), 564 Pa. 656, 662, 770 A.2d 318, 332 (2001). Accordingly, I find no error of law in the Secretary’s interpretation and application of the provisions of the Act.

The Builders further argue that the Secretary committed an abuse of discretion in that the record lacks substantial evidence supporting the Secretary’s findings. Substantial evidence has been defined as such “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jordan v. W.C.A.B. (Consolidated Electrical Distributors), 550 Pa. 232, 235, 704 A.2d 1063, 1064 (1997) (quoting Bethenergy Mines Inc. v. W.C.A.B. (Skirpan), 531 Pa. 287, 292, 612 A.2d 434, 436 (1992)). In addressing this issue, I am also mindful of our appellate direction that a reviewing court may not substitute its judgment for that of an agency since the fact-finding agency is in a better position to determine the facts based upon its observation of the testimony and witnesses. Moorehead v. Civil Service Commission of Allegheny County, 769 A.2d 1233, 1238 (Pa. Commw. 2001).

Following a hearing held on January 11, 2005, the Secretary issued detailed findings of fact which included 66 different findings. Although the findings of fact are too numerous to specifically set forth, they may be summarized as follows:

“Carroll Valley consists of two geological provinces, one part consisting of the lowland valley and the other part consisting of a rugged and mountainous terrain extending to an elevation of 2,200 feet, or approximately 90 feet higher than the lowland area. Over 53 percent of the topography of the borough is situate on a 12-degree slope or greater with some sections of the borough having a slope as great as 70 or 80 degrees. The geological formations of the borough are not conducive to supporting a large number of onsite wells. The borough covers an area of approximately 5 1/2 square miles with over 70 miles of roads. Approximately 90 percent of the borough is residential and currently there are approximately 430 homes within its limits, only 1/3 of which are on the valley floor. However, only 1/3 of the land within the borough is developed with residential construction.
“The borough does not have either a municipal or a volunteer fire department. Rather, the closest responding fire department is the volunteer fire department in Fairfield Borough, which is approximately two miles from that portion of Carroll Valley located on the valley floor. There is no public water supply in Carroll Valley Borough and, consequently, no fire hydrants within the borough. There are, however, five dry hydrants on the valley floor where three lakes provide water to fill or refill fire fighting tanker trucks’ needs. Due to the difficult topography of Carroll Valley Borough, in some areas of the borough, loaded tanker trucks can only reach top speeds of around five miles an hour. The difficulty in getting water to the fire scene is multiplied since water tankers, once they have exhausted their supply, must travel to the valley floor to re-fill before negotiating the difficult terrain and returning to the fire scene. There have been instances where the Fairfield Fire Company’s drivers have had to divert off a route because of the terrain and attempt to find an alternative route because the terrain was too steep. One of the primary challenges that the Fairfield Fire Company faces in fighting fires in Carroll Valley is getting water to the scene.
“Most building lots in Carroll Valley are approximately 100' x 200'. Because of the lot sizes in the borough, there is less than a 50-foot separation between residences. This lack of ‘defensible space’ coupled with the lack of sufficient water classifies the majority of Carroll Valley Borough as a ‘high hazard area’ under the Urban Wildlife Interface Code.
“The ordinance at issue requires sprinkler systems installed on all new construction. Each home installed with a sprinkler system will require holding tanks to permit the continuous flow of water with pressure. For a 1,500 square foot home, the total cost for a sprinkler system will run less than $3,000.” Adjudication and order, January 11,2005.

Based upon this factual record, the Secretary concluded that clear and convincing evidence established that local topographic and public health and safety circumstances justify the enactment of ordinance no. 02-2004. The Secretary further found that the ordinance provided standards for the protection of life, health and property through the use of state-of-the-art devices without unreasonably or unnecessarily increasing construction costs. Finally, the Secretary concluded that the ordinance was consistent with the legislative findings and purpose as set forth in the Act.

My review of the record reveals substantial evidence which amply supports the Secretary’s findings. Additionally, I find no error with the Secretary’s conclusion concerning the ramifications and risks which local topographic conditions present to public safety. As amply stated by the Secretary:

“The borough has real public health and safety concerns with its ability to protect the lives of its residents in the event of a fire. The majority of the borough ... is residential. Over 2/3 of the homes situate in the borough are located in the mountainous areas, with less than 1/3 of the current residential development located on the valley floor. Add to a topography of hills, mountains and valleys many roads which are impassable, no public water supply, no fire hydrants, no municipal fire company and no volunteer fire company, and the risk of fire-related harm or death to residents in the borough in the event of a residential fire is substantial.
“There can be no question that in a majority of circumstances, smoke alarms as required by the [International Residential Code] are a sufficient measure to protect against fire damage, both in terms of life and property. But that presupposes that the fire, once detected, will be responded to quickly by local firefighters. In Carroll Valley, there are no local firefighters. There are no fire hydrants. There is no public water supply. The borough has to rely on the services of fire departments in surrounding communities, the closest of which is approximately two miles from the valley floor at the base of the mountain, and all water from hydrants, also located on the valley floor, to fight its fires.” Adjudication and order, January 11,2005, pp. 16-17.

The Builders suggest that the evidence relied upon by the Secretaiy establishes nothing more than “mere inconveniences and difficulties to be overcome in delivering fire response and protection that are not unlike those that exist in the municipalities throughout Pennsylvania.” Brief of petitioners, p. 13.1 do not agree. Initially, I note there is nothing in the record to suggest such a conclusion. Regardless, whether a municipality or other municipalities have similar features or needs is immaterial. As noted above, the critical inquiry is whether the climatic, geological and topographical circumstances of Carroll Valley justify the additional regulations for the protection of the health, welfare and safety of the community.

Similarly, I reject the Builders’ argument that ordinance no. 02-2004 is overly broad. In this regard, the Builders suggest that if a need for water sprinklers is present, it is present only in those areas of the borough other than the valley floor. The Builders argue, therefore, that the ordinance is overbroad in its application in that clear and convincing evidence has failed to justify universal requirement for sprinklers throughout the borough. This argument ignores the Secretary’s findings.

The Secretary’s findings, which are supported by the record, indicate that over half of the topography in the Borough consists of mountainous areas. Moreover, less than 1/3 of the current residential development is located on the valley floor, opposed to on the mountain. There is nothing in the record to suggest that this trend will not continue in future building. Rather, this evidence is circumstantial evidence that the vast majority of future building will likely occur in areas other than the valley floor. See generally, Brown Transport Corp. v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, 133 Pa. Commw. 545, 578 A.2d 555 (1990) (a finding of substantial evidence may be supported by circumstantial or inferential evidence). Moreover, this evidence is more than adequate to support the Secretary’s conclusion.

In rejecting the Builders’ argument concerning the scope of ordinance no. 02-2004,1 note that it is neither the right nor obligation of the Secretary, or this court, to act as a super-legislator. An ordinance adopted by a legislative body is presumably legal. In re Annexation of Portion of South Pymatuning Twp., 409 Pa. 324, 329, 186 A.2d 13, 15 (1962). Rather, this court has a duty to determine whether the record contains substantial evidence supporting the Secretary’s determinations. City of Pittsburgh v. Kisner, cited above. Having found such substantial evidence, I will not delve into house by house inquiry as to the need for sprinkler systems in each of the thousands of remaining potential future residences in Carroll Valley. The Act does not require such an assessment. In fact, the Builders’ suggestion, to slice Carroll Valley into areas where different regulations apply, only frustrates the uniformity which the Act attempts to establish. Absent clear legislative direction, this court will not usurp the Act’s plain language permitting additional regulations on a municipal-wide basis. For the foregoing reasons, the decision of the Secretary is affirmed.

ORDER

And now, October 14, 2005, the appeal of the petitioners is denied. The decision of the Pennsylvania Secretary of Labor and Industry is affirmed.

      . Although enacted as Act 45 of 1999, the legislation provided that the provisions of the Act, which are relevant to this proceeding, take effect 90 days following the publication of notice, in the Pennsylvania Bulletin, that the regulations required by the Act have been finally adopted. The regulations were adopted on January 10, 2004, and published at 34 Pa.B. 319 effective April 9, 2004.

      . The Act lists a number of exceptions that are not relevant to the inquiry before the court. See 35 P.S. §7210.104(b).

      . 35 P.S. §7210.102.

      . 35 P.S. §7210.102.

      . The Builders’ interpretation that this section requires “exclusive” climatic, geological, topographical, or public health and safety circumstances leads to an absurd result. For instance, it is difficult to imagine a climatic condition applicable to a municipality in Pennsylvania to the exclusion of any other municipality in the state. Similarly, while the geology throughout Pennsylvania may differ from region to region, geological conditions throughout the state are not defined by the borders of a municipality. The same can be said for the topography throughout the state. The Builders’ argument that the word “local” was meant to require proof of conditions that are confined to a municipality, see the Builders’ brief, page 7, would essentially lead to the absurd result of no municipality in Pennsylvania being able to establish local climatic, geologic, or topographic conditions justifying the exception. Obviously, the General Assembly did not institute a legislative scheme that is impossible to execute. 1 Pa.C.S. §1922. Yet, the legislature clearly chose to include such conditions as a basis for the exception. Thus, this language is not mere surplusage but rather exists as unambiguous evidence of the legislature’s intent. See generally, Keystone Aerial Surveys Inc. v. Pennsylvania Property & Casualty Insurance Guaranty Association, 777 A.2d 84, 90 (Pa. Super. 2001), re-argument denied, app. granted, 568 Pa. 701, 796 A.2d 983 (2002), affirmed, 574 Pa. 147, 829 A.2d 297 (2003).

      . 35 P.S. §7210.503(j)(2)(iv).

      . In a discussion accompanying the decision, the Secretary found the record to be devoid of evidence suggesting that the ordinance is inconsistent with the legislative findings and purpose of the Act. January 11, 2005 adjudication and order, p. 16. The Builders have not directed this court’s attention to anything in the record which would contradict this finding by the Secretary. Rather, it appears that the Builders’ argument rises or falls entirely on principles of statutoiy construction.


author: LASH, J.,

text:
    Lucacos v. Tzinis

      Joseph I Piscitello, for plaintiff.

      Paid G. Lees, for defendants.
    October 12, 2005
   LASH, J.,

The matter before this court is the motion of defendants, Costas H. Tzinis and Sophia Tzinis, husband and wife, for summary judgment. Upon consideration of the record, and after argument held on October 7, 2005, the motion for summary judgment is granted and judgment is entered in favor of defendants and against plaintiff.

Plaintiff, Constantina Lucacos, filed the within complaint on June 23,2003, claiming injuries resulting from a fall she suffered on July 7,2001, on property owned by defendants in Reading, Berks County, Pennsylvania. At that time, plaintiff was a social guest at defendants’ home, having arrived with her friend, Effie Clauser, who was retrieving a van owned by Ms. Clauser which had been borrowed by defendant, Costas H. Tzinis. After arriving at defendants’ home and briefly speaking with defendant, Costas H. Tzinis, at the front door, plaintiff returned to the car Ms. Clauser had driven to defendants’ residence, and was standing outside the car waiting for Ms. Clauser, who continued to speak with defendant, Costas H. Tzinis. While plaintiff stood by the car, one of Ms. Clauser’s children, who was seated in the backseat of the Clauser car, threw a ball toward plaintiff for her to catch. As she attempted to grab the ball, she took a step back and fell. In her complaint, plaintiff claims that her fall resulted from her stepping backward and tripping on or over a defective condition existing at the junction of defendants’ driveway and sidewalk. The defect claimed was a difference in height between the concrete sidewalk pavement and the driveway macadam, varying from .75 inches to 1.5 inches.

Defendants filed the within motion for summary judgment, claiming that the height deviation is so trivial that defendants cannot be held negligent. Second, defendants argue that defendants are not required to maintain the area in an absolutely level condition, that the standard of duty of defendants is to maintain the area in a reasonably safe condition. Third, defendants argue that there is no evidence that plaintiff’s trip and fall was caused by the height deviation.

In Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001), the Supreme Court recently restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Ass ’n Inc., 547 Pa. 224, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992).”

Plaintiff contends that there are sufficient facts to have this case presented to a jury. Central to the argument is the opinion of plaintiff’s expert, a civil/structural engineer named John Posusney. Mr. Posusney examined the area of plaintiff’s fall and determined that there was a “change in elevation between the asphalt and concrete which was between 0.75 inches and 1.5 inches.” He concludes “based on a reasonable degree of engineering certainty, it is my opinion that the change in elevation and its configuration constituted a trip hazard that should have been discovered and repaired well in advance of the subject accident which occurred on July 7,2001. This change in elevation between the abutting surfaces was not trivial and, from an engineering perspective, is unacceptable.”

The question of whether liability should be imposed on a landowner for failing to correct an irregularity is not answered merely by determining whether the irregularity is significant enough to cause someone to stumble or fall. The issue must also be considered within the context of the landowner’s duty, which takes into account not only the safety of the pedestrian, but also, among other things, the difficulty a landowner faces in the maintenance of sidewalks and driveways. The duty the law imposes upon landowners, such as defendants, is to maintain the pavement in a condition of reasonable safety, not to insure pedestrians traversing it against any and all accidents. Harrison v. Pittsburgh, 353 Pa. 22, 24, 44 A.2d 273, 274 (1945).

In the case of German v. City of McKeesport, 137 Pa. Super. 41, 48-49, 8 A.2d 437, 440-41 (1939), the Pennsylvania Superior Court provides an excellent synopsis of the reasoning behind the law structuring a landowner’s duty in this fashion:

“The law does not require that sidewalks shall be as free of defects, imperfections, irregularities, unevenness, etc., as the floors of buildings. A reasonably safe condition is all that is necessary. Our climate, with its rain and snow, freezing and melting, frost and thaw, with their effects on exposed surfaces, including sidewalks, makes impossible the perfection of evenness to be expected in buildings and covered places. The roots of trees planted along sidewalks — there were none in this instance, it is true — cause irregularities which, however, do not require remedying or repair until the break or imperfection is so great as to be patently dangerous. Such irregularities and unevenness are especially frequent and likely to occur where the sidewalk and curb join or abut, by reason of the curb loosening or separating from the sidewalk and the accumulation of dampness there; but, to impose liability on the property owner or the city, they must be so large and unusual as to appear dangerous to the ordinary pedestrian and everyday passerby. A difference or discrepancy of an inch and a half between the levels of two abutting curbstones was held not to impose liability: McGlinn v. Philadelphia, 322 Pa. 478, 186 A. 747. And such a variation — 1 1/2 inches — between the adjoining ends of flagstones in a street crossing is not evidence of negligence imposing liability for injuries to a pedestrian who fell at that point: Newell v. Pittsburgh, 279 Pa. 202, 123 A. 768.”

Plaintiff claims a distinction from the established legal standards because the fall occurred where the sidewalk meets the asphalt driveway. As such, the maintenance is different and less imposing upon an owner than would be the maintenance of sidewalks. However, the cases dealing with street, highway or sidewalk irregularities do not appear to recognize this distinction. No cases in support of this distinction are cited by plaintiff.

Under the circumstances, plaintiff’s case lacks sufficient evidence to establish that defendants breached their duty to keep the sidewalk/driveway area in a reasonably safe condition. For this reason, we grant summary judgment. Accordingly, it is unnecessary to address the question of whether plaintiff’s evidence sufficiently establishes that her accident was caused by the defect.

We enter the following order:

ORDER

And now, October 12, 2005, upon consideration of the motion of defendants, Costas H. Tzinis and Sophia Tzinis, husband and wife, for summary judgment, response thereto, briefs filed by the parties, and after argument held, the motion for summary judgment is granted. Judgment is entered in favor of defendants, Costas H. Tzinis and Sophia Tzinis, husband and wife, and against plaintiff, Constantina Lucacos.

      . Paragraph 8, affidavit of John Posusney, dated July 12, 2005.