author: NANOVIC, J.,

text:
    Commonwealth v. Jaeger.

      Michael S. Greek, for plaintiff.

      Michael P Gough, for defendant.

      November 30, 2012
   NANOVIC, J.,

Following a bench trial on July 20,2012, James J. Jaeger (“defendant”) was found guilty of two counts of driving under the influence (“DUI”) in violation of 75 Pa.C.S.A. §§ 3802(a) (1) and (d)(3), and one count of driving on right side of roadway in violation of 75 Pa.C.S.A. §3301(a). Following his sentencing on August 13, 2012, defendant filed a post-sentence motion whereby he sought a judgment of acquittal on the basis that the evidence was insufficient to support his convictions for DUI. Defendant further sought an arrest of judgment or, in the alternative, a new trial on the basis that the verdict of guilty, as to the DUI convictions, was against the weight of the evidence. By order dated August 27, 2012, we denied defendant’s challenge to the verdict.

Defendant filed his notice of appeal to the Superior Court on September 25, 2012. At the time, we were not provided a copy. However, upon learning of the appeal, we immediately issued a rule 1925(b) order on October 9, 2012, granting defendant twenty-one days within which to file a concise statement of matters complained of on appeal. After this time had passed, defendant requested additional time to file his concise statement. This request was granted, and on November 5, 2012, defendant’s statement was filed. In this statement, defendant identifies the same issues previously raised in his post-sentence motion. For the reasons that follow, we believe the appeal is without merit.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of December 4, 2010, Valerie Stankavage (“Wife”), Joseph Stankavage (“Husband”), and their eight-month-old son were traveling eastbound on State Route 443, in Mahoning Township, Carbon County, on their way home from a family gathering they had attended earlier that day. In this area, Route 443 is a two lane highway, running generally in an east/west direction. As Wife was operating her vehicle, a Nissan Altima, Husband sat behind her next to their son, who was seated in his car seat. Unexpectedly, two headlights appeared in the westbound lane, heading directly for the Stankavage vehicle. The headlights belonged to defendant’s vehicle, a Nissan Xterra. Defendant, who was by himself, continued driving in the wrong lane for a distance of approximately three hundred and fifty feet. (N.T. 7/20/12, pp.96-97,103). Just before impact, defendant swerved to his right crashing his vehicle into the front driver side of the Stankavages’ sedan.

The accident occurred at approximately 6:27 P.M. Both Officer Richton Penn of the Mahoning Township Police Department and Sergeant Joseph Lawrence of the Leighton Borough Police Department were dispatched to the scene. Officer Penn arrived first, at approximately 6:31 P.M. Upon his arrival, he observed defendant sitting in the driver’s seat of the Xterra.

At first, Officer Penn thought defendant was unconscious, as he was slumped over the driver’s seat. With the intent of gaining defendant’s attention, Officer Penn knocked on the driver’s side window of defendant’s vehicle. Defendant responded by rolling the window down. The officer asked defendant if he was hurt, to which defendant replied no. (N.T. 7/20/12, p.28).

Next, Officer Penn directed defendant to remain in his vehicle until emergency medical services (“EMS”) arrived. As they waited, Officer Penn requested that defendant produce identification. After searching through his wallet and the center counsel of his vehicle for close to four minutes, in the process passing over his driver’s license multiple times while looking through his wallet, defendant eventually located his license. During this initial exchange, Officer Penn noticed that defendant’s speech was slurred and that his eyes had a glassy-like appearance.

EMS arrived a short time later. After being escorted to the EMS vehicle, defendant refused treatment. Officer Penn attempted to speak with defendant regarding this decision. During this second exchange, the officer noticed that defendant’s breath smelled of alcohol and that defendant had difficulty standing on his own, needing to lean against the EMS vehicle in order to maintain his balance. Suspecting that defendant was under the influence of alcohol, the officer asked defendant whether he had been drinking. Though originally denying he had any alcoholic beverages that day, defendant later admitted to having a few drinks. (N.T. 7/20/12, p.29).

At the officer’s request, defendant performed two field sobriety tests and failed both. Defendant explained to Officer Penn that he was unable to perform the tests because of the prescription medication he had taken that day. (N.T. 7/20/12, p.31). Defendant was unable to recall how long prior to operating the vehicle he had taken this medication.

It was at this point in time that Sergeant Lawrence arrived at the scene. Sergeant Lawrence observed defendant being given the horizontal gaze nystagmus (HGN) test. Sergeant Lawrence noticed as well that defendant’s speech was slurred and that defendant was off balance and swayed. Later, while performing an inventory search of defendant’s vehicle prior to its removal from the accident scene, Sergeant Lawrence found a plastic bag with several white pills inside. (Defendant’s Exhibit No. 2; N.T. 7/20/12, p.201). No prescription containers or prescription information was found. (Defendant’s Exhibit No. 1). Defendant claimed these were samples his doctor had given him.

Based upon his observations at the scene, Officer Penn initially concluded that defendant was under the influence of alcohol to a degree which rendered him incapable of safe driving. (N.T. 7/20/12, p.32-33). As such, defendant was taken into custody and a search incident to arrest was performed. From defendant’s pant pockets, Officer Penn recovered three pills wrapped in a plastic baggie and a small white plastic bottle without markings also containing several pills inside. (N.T. 7/20/12, pp.33-34, 62, 201). The officer transported defendant to the Gnaden Huetten Memorial Hospital in Leighton, where he refused to submit to a blood test. Defendant did not complain of nor was he treated for any injuries at the hospital. (N.T. 7/20/12, p.35).

A criminal complaint was filed against defendant on January 12, 2011. On July 20, 2012, defendant appeared before this court for a bench trial, where he was found guilty of two counts of DUI and one count of driving in the opposite lane of traffic, a summary offense. Defendant has since been sentenced and his post-sentence motion denied. On September 25, 2012, defendant filed a timely appeal with the Pennsylvania Superior Court challenging both the sufficiency and weight of the evidence to sustain the DUI convictions. We discuss both issues below.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

Defendant contends that the evidence was insufficient to support his convictions for DUI under 75 Pa.C.S.A §§ 3802(a)(1) and (d)(3).

When reviewing a sufficiency of the evidence claim, the court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the defendant’s guilt to a mathematical certainty. Finally, the trier of fact while passing upon the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Smith, 904 A.2d 30, 37-38 (Pa. Super. 2006) (citations omitted).

A. DUI — Section 3802(a)( 1)

In regards to Section 3802(a)(1), defendant claims that the Commonwealth failed to establish that he had consumed a sufficient amount of alcohol to render him incapable of safe driving. We disagree.

To sustain a defendant’s guilt under section 3802(a)(1), the Commonwealth must establish beyond a reasonable doubt that the defendant was operating a motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. 75 Pa.C.S.A. § 3802(a)(1). Here, the evidence, when viewed in the light most favorable to the Commonwealth, was clearly sufficient to sustain a finding that defendant did just that.

The arresting officer testified that defendant exhibited several signs of intoxication — slurred speech, glassy eyes, inability to stand on his own, an odor of alcohol, difficulty producing his identification, and failure to pass several field sobriety tests. Based upon these observations and being of the opinion that defendant was under the influence of alcohol to a degree which rendered him incapable of safe driving, Officer Penn took defendant into custody and requested a blood alcohol test. Defendant refused. In addition, defendant drove in the face of on-coming traffic and was responsible for causing a motor vehicle accident. When questioned by Officer Penn, he denied that he was injured and he refused medical treatment.

These facts, combined with defendant’s admission to having consumed two alcoholic beverages, amply support defendant’s conviction of this offense. See Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000) (“Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving.”); Commonwealth v. Feather, 660 A.2d 90, 96 (Pa.Super. 1995) (evidence that driver had glossy eyes, slurred speech, strong odor of alcohol, imbalance, difficulty in producing license, and failure of field sobriety tests was sufficient to establish that she was under the influence of alcohol to a degree which rendered her incapable of safe driving); see also 75 Pa.C.S.A. § 1547(e) (refusal is a factor properly considered in determining whether a driver is under the influence of alcohol).

B. DUI —Section 3802(d)(3)

We likewise find that the evidence was sufficient to support defendant’s conviction of DUI pursuant to Section 3802(d)(3). In this regard, defendant challenges the sufficiency of the evidence on the basis that the Commonwealth failed to produce a qualified witness who could attest to the quantity of drugs, if any, present in his body and the effect that these drugs had on his ability to drive or operate a motor vehicle.

Section 3802(d) of the Vehicle Code provides:

(d) Controlled substances. — An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in... The Controlled Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.
(3) The individual is under the combined influence of alcohol and a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(d) (1) - (3) (emphasis added to subsection at issue here).

To sustain defendant’s conviction under section 3802(d)(3), the Commonwealth must prove beyond a reasonable doubt that as the driver of a motor vehicle, defendant was under the combined influence of alcohol and a drug or a combination of drugs to a degree which impaired his ability to safely drive. 75 Pa.C.S.A. § 3802(d) (3). Pursuant to the plain language of the statute, it is not necessaiy to prove that any specific quantity of alcohol or of a drug was present in his system. Cf. Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa.Super. 2008) (interpreting Section 3802(d)(2) as addressing the effect, rather than the quantity, of a drug in a defendant’s blood or urine), appeal denied, 980 A.2d 608 (Pa. 2009).

In Commonwealth v. Griffith, 613 Pa. 171, 180, 32 A.3d 1231, 1237 (2011), our Supreme Court noted that:

while subsection 3802(d)(1) prohibits driving when there is any quantity of illegal drug in one’s blood, subsections 3802(d) (2) and (d) (3) do not require that a drug be chemically detectible in the defendant’s body or that blood tests be performed. Rather, the text of subsections 3802(d) (2) and (d) (3) requires only that one’s ability to safely drive be impaired because of the influence of a drug.

Id. (citations omitted and emphasis in the original).

At issue in Griffin was whether expert testimony was required “to convict a defendant of driving under the influence of a drug or combination of drugs, 75 Pa.C.S. § 3802(d)(2), when the drugs in question are prescription medications.” Id. at 1233. As a matter of law, the Court declined to “read into subsection 3802(d)(2) a mandatory requirement for expert testimony to establish that the defendant’s ability to drive safely was caused by ingestion of a drug, even if it is a prescription drug, or drug combination.” Id. at 1238. Similarly, we conclude here that for the Commonwealth to prove its case under Section 3802(d)(3), it is not necessary to produce expert testimony to establish that defendant’s ability to drive safely was impaired by the combined influence of alcohol and a drug or combination of drugs. This section “neither specifies nor limits the type of evidence that the Commonwealth may proffer to prove its case.” Id. at 1238. Rather, as with Section 3802(a)(1), the Commonwealth is allowed to establish this element of the offense by wholly circumstantial evidence. Id. at 1238-39.

On the day of the accident, several white pills were discovered in a plastic bag in defendant’s motor vehicle, he had drugs in his pant pockets, and he acknowledged that he was unable to perform the field tests because of the prescriptive medication he had taken earlier that day. Hypodermic needles were also found in his vehicle. (Defendant’s Exhibit No. 2; N.T. 7/20/12, p.205). This evidence, taken together with that discussed to sustain defendant’s section 3802(a)(1) conviction, is more than sufficient to support a finding that defendant’s ability to safely drive was impaired because of the influence of a combination of alcohol and one or more drugs.

Moreover, the evidence showed that defendant, a former bartender, had been warned against consuming alcohol while taking his prescription medications. Unfortunately, on the day of the accident, defendant ignored these warnings. The effect, as is evident, was tragically clear.

II. WEIGHT OF THE EVIDENCE

Defendant also contends that he is entitled to have judgment arrested or, in the alternative, be awarded a new trial on the grounds the verdict of guilty as to the DUI charges was against the weight of the evidence.

It is well settled that the [fact-finder] is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the [factfinder’s] verdict is so contrary to the evidence that it shocks one’s sense of justice.

Commonwealth v. Karns, 50 A.3d 158, 166 (Pa. Super. 2012) (citation omitted).

A. DUI — section 3802(a)(1)

With respect to section 3802(a)(1), defendant contends the verdict was against the weight of the evidence because the Commonwealth did not introduce evidence of defendant’s BAC level and because the totality of the evidence indicates that the accident occurred as a result of a pre-existing medical condition, not alcohol.

We first note that Section 3802 (a)(1) does not require “a blood or breath test to determine alcohol level...; rather, a different standard is used, to wit, imbibing a sufficient amount of alcohol such that [one] is rendered incapable of safely driving.” Griffith, at 1238 (citation and quotation marks omitted). Hence, the fact that the Commonwealth did not introduce evidence of defendant’s BAC level is immaterial to defendant’s claim.

In order to establish that defendant had consumed a sufficient amount of alcohol such that he was impaired and incapable of safe driving, the Commonwealth introduced the testimony of Wife that defendant was driving in the wrong lane, towards her, for almost three hundred and fifty feet. The Commonwealth further presented the testimony of the arresting officer that defendant’s behavior was indicative of someone who was under the influence of alcohol, and that defendant had admitted to consuming two alcoholic beverages that day. In addition, two officers with experience in prosecuting DUI cases, both opined that defendant was under the influence and incapable of safe driving. See Commonwealth v. DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010)(under section 3802(a)(1) “the Commonwealth may present any form of proof, including defendant’s behavior, the nature of the accident itself, and any other relevant evidence (which may or may not include blood alcohol tests)”), appeal denied, 40 A.3d 120 (Pa. 2012).

To refute this evidence, defendant presented the testimony of various family members and a friend. The first to testify was defendant’s wife, Heather Jaeger. According to Mrs. Jaeger, defendant was with her at her parents’ house in Jim Thorpe hanging Christmas decorations from 9:30 A.M. until approximately 11:00 A.M. (N.T. 7/20/12, pp. 111-12). Mrs. Jaeger further testified that she did not observe her husband consuming any alcoholic beverages during this period of time. To the contrary, Mrs. Jaeger testified that since defendant had been prescribed his medications, he no longer consumed any alcoholic beverages because he knew the side effects of doing so. (N.T. 7/20/12, pp.133-35, 216).

Next to testify was defendant’s mother, Susan Jaeger. Defendant’s mother testified she was with defendant at her daughter’s apartment in Lehighton from approximately 11:30 A.M. until 5:00 P.M.. She also testified that she did not observe defendant consuming any alcoholic beverages during this period. However, it is important to note that defendant’s mother was not physically in her son’s presence during this entire five and a half hour period, as she remained outside, in her vehicle, while defendant was inside the apartment with his sister. Finally, defendant’s mother testified that defendant left her daughter’s apartment at around 5:00 P.M. to get her coffee. When he did not return by 5:30 — 6:00 P.M., she thought he had forgotten about the coffee. (N.T. 7/20/12, pp.149).

Defendant then called his friend, Jim Kemmerer who lives in Lehighton. Mr. Kemmerer testified defendant arrived at his home close to 5:00 P.M. Mr. Kemmerer also stated that defendant was worked up about his sister’s car being taken and that he tried to calm him down. Mr. Kemmerer denied that defendant consumed any alcohol while he was with him. Finally, because as defendant left, he told Mr. Kemmerer he was going back to his sister’s apartment, Mr. Kemmerer did not understand why the accident happened where and when it did. (N.T. 7/20/12, pp. 157-58). Defendant’s father, Richard Jaeger, who next testified, stated that defendant was supposed to pick up his sister’s daughter, Jaden, in Palmerton sometime between 5:15 P.M. and 5:30 P.M., but that defendant failed to show. (N.T. 7/20/12, pp. 146-47, 150, 169-70).

Defendant was the last person to testify on his behalf. Defendant testified that he left his sister’s apartment sometime between 4:15 P.M. and 4:30 P.M. to get something to eat and to pick-up coffee for his mother. (N.T. 7/20/12, p.180). He admitted first going to Mr. Kemmerer’s home where he remained for thirty to forty minutes, leaving at approximately 5:00 P.M.

To account for the hour and a half gap between when he left Mr. Kemmerer’s home and the time of the accident, defendant testified that on his way to McDonald’s (located on Route 443) to get something to eat, he stopped at the Lehighton Rite Aid for approximately an hour to fill a prescription. He then decided to go to Walmart, where he was headed at the time of the accident. He never credibly explained why he was running more than an hour late to pick up his niece; why no recently filled prescription was found in his vehicle when searched by Sergeant Lawrence; or why, after more than two hours had passed since he left his sister’s apartment, he had yet to eat or get coffee for his mother. Defendant maintained, nevertheless, that he did not drink any alcoholic beverage during this period.

Defendant’s account of how the accident occurred was as follows: he was traveling westbound on Route 443 on his way to Walmart. There was a vehicle directly in front of him “brake checking him”; however, he could not slow his vehicle down, as there was another vehicle directly behind him. Suddenly, as he was in his lane of traffic, he was struck on the side by the Stankavages’ vehicle.

To explain his erratic behavior after the accident, defendant claimed he sustained a concussion in the accident. To support that claim, defendant testified that for two days after the accident he was not himself — that among other things, he was confused, dizzy, off balance, nauseous and experiencing headaches. As a consequence, he went to St. Luke’s Miners Memorial Hospital in Coaldale on December 6, 2010, where he reported his symptoms, had some imagining studies taken which were normal, and received the clinical impression that he had sustained a concussion. This impression was based solely on defendant’s self-reporting, two days after the accident, and after defendant had been arrested for DUI, refused a blood alcohol test, and told Officer Penn he was not injured. Further, defendant’s claim of sustaining a concussion in the accident does not explain his conduct before the accident and which was the cause of the accident: why he drove in the opposing lane of traffic and failed to safely return to his lane of traffic.

It is clear that each of the witnesses who testified in defendant’s behalf had an interest in helping him. It is also clear that in order to accept their testimony we would have to disregard the testimony of the arresting officer concerning the indicia of intoxication he observed, including the odor of alcohol on defendant’s breath and the statement given by defendant that he had been drinking that day. Defendant further asks us to disbelieve the testimony of wife about defendant driving in her lane of traffic against on-coming traffic for a distance of almost three hundred and fifty feet. We did not do so, accepting instead the evidence presented by the Commonwealth.

After considering the totality of the evidence, we found that defendant was under the influence to a degree which rendered him incapable of safe driving. Given the evidence, the verdict is not so contrary to the evidence as to shock one’s sense of justice. Accordingly, defendant’s conviction for DUI in violation of 3802(a)(1) should stand.

B. DUI —Section 3802(d)(3)

Lastly, defendant claims that his conviction for violating Section 3802(d)(3) was against the weight of the evidence because the Commonwealth did not present a drug recognition expert, or introduce evidence of defendant’s BAC level or the concentration of drugs in his system. As previously stated, the Commonwealth is not required to present a drug recognition expert in proving its case pursuant to Section 3802(d)(3). Further, Section 3802(d)(3), by its plain language, does not require that the Commonwealth establish defendant’s BAC level or quantify, to any extent, the amount of drugs in his system.

The Commonwealth offered circumstantial evidence to establish that defendant had been operating the motor vehicle while under the influence of a combination of alcohol and drugs. This evidence showed that defendant was driving on the wrong side of the road prior to colliding with the Stankavages’ vehicle; that defendant exhibited signs of intoxication; that defendant had consumed at least two alcoholic beverages at some point before the accident; that defendant admitted he was unable to perform the field sobriety test because of the medication he had taken; and that defendant, at the time of the accident, was not only heavily medicated, but had also consumed alcohol notwithstanding medical advice not to mix the two. Defendant failed to produce any credible testimony to refute the Commonwealth’s evidence. As such, his conviction for DUI in violation of Section 3802(d)(3) was appropriate.

CONCLUSION

In accordance with the forgoing, we conclude defendant’s contentions are without merit. We, therefore, find that defendant is not entitled to any of the remedies he seeks.

      . Pursuant to 75 Pa.C.S.A. § 3804 (c)(1), as a first time offender, defendant was sentenced to a term of imprisonment of not less than seventy-two hours nor more than six months, loss of his driving privileges for a period of one year, and a fine of two thousand five hundred dollars for violating Section 3802(d). Additionally, defendant was ordered to make restitution to the victims of the motor vehicle accident resulting from this violation in the amount of one thousand two hundred five dollars and eighty-seven cents ($1,205.87), and to their insurance company in the amount of eleven thousand two hundred fifty-eight dollars and thirty-five cents ($11,258.35). By order dated September 20, 2012, this sentence was modified, upon stipulation of the parties, to delete the latter amount, the court being advised that defendant’s insurance company had reimbursed this amount to the victim’s insurance company. But see Commonwealth v. Stradley, 50 A.3d 769, 773(Pa.Super. 2012) (requiring the sentencing court to direct defendant to pay restitution to his own insurance company when it is determined that the victim has been fully compensated by defendant’s insurance carrier). No further sentence was imposed for defendant’s Section 3802(a) violation, this conviction having merged with that under Section 3802(d). See Commonwealth v. McCoy, 895 A.2d 18, 24 (Pa.Super. 2006) (requiring merger where violations of subsections of the same statute are designed to proscribe a single harm and the defendant in violating them committed one act). A fine of twenty-five dollars was imposed on the summaty offense.

      . in his post-sentence motion, defendant also petitioned this court to continue his release on bail pending appeal, as well as requested the appointment of new counsel. We granted defendant’s request to remain on bail, conditioned upon his perfecting and pursuing an appeal. Additionally, new counsel has since entered his appearance for defendant.

      . Wife was unable to move her car to the westbound lane as there were other vehicles traveling in that direction. A steep rise adjacent to the eastbound lane prevented her from pulling off the road on her side of the highway. Wife slowed her vehicle down and moved as close as possible to the eastbound shoulder. (N.T. 7/20/12, pp.104-105). Unfortunately, she was unable to avoid the collision.

      . When he arrived, Officer Penn observed the Xterra partially in the westbound lane and partially on the shoulder. The Altima was observed to be partially in the eastbound lane and partially on the shoulder.

      . The two tests administered were the heel to toe, and one leg stand. Officer Penn also administered the horizontal gaze nystagmus test.

      . Defendant suffers from lupus and other medical conditions. As of December 4, 2010, defendant was taking at least eleven prescription medications. (N.T. 7/20/12, pp.136, 177-78). These included Cabergoline, Methotrexate, Naprosyn, Lyrica, Flexeril, Oxycontin, Pristique, Prednisone, Folic Acid, Actonel, and Mobic. (defendant’s Exhibit No. 3). At the time of the accident, defendant was being weaned from Prednisone.

      . Officer Penn was unable, at the time of the search, to identify the pills. He did, though, submit the evidence to the Pennsylvania State Police Crime Lab. No further information regarding the identification of the pills was introduced at trial.

      . When they arrived at the hospital, Officer Penn read defendant the PennDOT DL-26 Form and advised him of his rights. Defendant requested to speak with an attorney, which Officer Penn explained he was not entitled to at this stage of the proceedings. Defendant then asked to speak with his wife, and again the officer explained that he did not have the right to speak with anyone regarding his decision. Defendant responded by screaming that he was not refusing to take the test, but rather that he was simply not consenting to it. He did so multiple times. The officer explained to defendant that failure to consent to the test would be considered a refusal. Sergeant Lawrence witnessed this exchange, which lasted approximately twenty minutes. At the conclusion, defendant’s refusal to submit to the blood alcohol test was documented by Officer Penn. (Commonwealth Exhibit No. 1). Linda Hopis, a registered nurse, was a witness to defendant’s refusal. According to her stipulated testimony, she would not have signed as a witness to defendant’s refusal had she not heard the O’Connell warnings read.

      . Although Sergeant Lawrence did not detect an odor of alcohol. Sergeant Lawrence did opine that defendant was clearly under the influence of alcohol or a controlled substance, and unable to drive safely. (N.T. 7/20/12, pp.72-73). We found the testimony of both officers to be credible.

      . While at his wife’s parents’ house, defendant received a phone call from his sister between the hours of 10:00 A.M. and 11:00 A.M. indicating that her vehicle had been stolen. In response, defendant went to his sister’s apartment, arriving there sometime between 11:00 A.M. and 11:30 A.M.

      . While defendant was inside his sister’s apartment, defendant’s mother waited outside to see if the individual responsible for taking her daughter’s vehicle would return. As such, she saw defendant only a couple of times that day, when he came to bring her water. Defendant’s sister did not testify.


source: Caselaw Access Project

author: STEINBERG, J.,

license: Public Domain

text:
    Commonwealth v. Curry.

      Charles Gallagher and Craig Scheetz for plaintiff.

      Charles Banta, for defendant.
    November 29, 2012
   STEINBERG, J.,

On November 21, 2011, the appellant, Hishamu Curry, was found guilty after a jury trial of robbery (three counts), attempted criminal homicide, aggravated assault (two counts), and criminal conspiracy to commit robbery. The appellant and two confederates, Isaah Sampson and Edward Maye, robbed the KNBT Bank in Emmaus at gunpoint. During the robbery, Edward Maye assaulted the assistant manager of the bank with a firearm, and in their flight to avoid apprehension, Isaah Sampson fired his weapon multiple times at Officer William Bryfogle of the Emmaus Police Department. Multiple bullets struck Officer Bryfogle’s cruiser, but he escaped uninjured.

A presentence report was ordered following the jury’s verdict. A full sentencing hearing was held on February 13,2012, during which both the presentence report and the sentencing guidelines were considered prior to imposing sentence. At the conclusion of the sentencing hearing, the appellant received a total sentence of not less than thirty (30) years nor more than sixty (60) years in a state correctional institution.

A notice of appeal was filed by trial counsel on March 14, 2012. Pursuant to this court’s directive, counsel filed a timely Pa.R.A.P. 1925(b) Statement. The sole issue raised alleges that it was error to permit the introduction into evidence of cell phone records and text messages secured from appellant’s cell phone.

On August 7, 2012, the Superior Court granted trial counsel’s “petition for permission to withdraw as counsel”. Pursuant to that order a hearing was held, and the appellant was determined to be eligible for court-appointed counsel. As a result, Charles Banta, Esquire, was appointed to represent the appellant for appellate proceedings.

Background

On December 30, 2010, at approximately 9:15 a.m., three (3) masked men with guns entered the KNBT Bank in Emmaus and exclaimed, “this is a robbery”. Two (2) of the three (3) jumped on the counter, and the third robber grabbed Michelle Andrews, the assistant manager, and forced her to the vault at gunpoint. When she reached the vault, he struck her in the head with his gun. Ms. Andrews fell to the floor, and then grabbed her sweater to stem the blood coming from her head. Ms. Andrews called-out for someone to open the vault, and Josephine Baba and Donna Grenauer, two (2) bank tellers, immediately responded. Both were unable to open the vault, and with that, one (1) or more of the robbers threatened: “Two more seconds and I’m going to start shooting if we don’t get the vault open.” Finally, Ms. Baba was able to open the vault, but by then the robbers had fled from the bank.

Minutes earlier, Ms. Grenauer was confronted at her teller station by one (1) of the robbers who was wearing a ski mask and hooded sweatshirt, and was carrying a duffle bag. He demanded that she put money in the bag and when she did not do so as quickly as he wanted, “he jumped on the counter and helped himself into the drawer and took money out himself.” Various denominations were removed, including a “pack in straps.” This was described as a GPS device.

Kathy Moyer, who was also a teller at the bank, observed the three (3) robbers entering the bank armed with guns, and wearing masks and gloves. She was confronted by one (1) of the robbers who placed a gun in her face and demanded money. This individual made it clear that he did not want “strap money.” Ms. Moyer gave him the money from her teller drawer. She was then led to the vault at gunpoint, where she remained with her fellow employees.

It was determined that eleven thousand five hundred and twenty-nine ($11,529) dollars was taken in the robbeiy. When the getaway car was later inventoried by the police, they discovered a black bag with money, as well as a GPS tracking device, which continued to ring in the 9-1-1 center until Detective Hoats deactivated it. The “strap money” had the initials “KM”, Kathy Moyer.

Officer William Bryfogle of the Emmaus Police Department was approximately a mile and a half away from the bank when he received a call of suspicious activity at the bank. He activated his emergency lights and siren, which also activated his on-board video camera, and proceeded to the bank. While doing so, he received further notification “that a GPS unit had activated from the inside of the bank on a money pack.” Further information communicated to him indicated that the transponder was signaling it was moving out of the bank.

He arrived at the bank approximately a minute or so later, and proceeded to the intersection of North 2nd Street and Green Street, which is an alley behind the bank. Initially, he did not observe any activity, but approximately ten (10) seconds later, he observed a vehicle enter the alley coming towards his patrol vehicle. The vehicle ignored the stop sign at 2nd and Green Street and continued eastbound. Officer Biyfogle turned his patrol vehicle behind the fleeing vehicle, and again activated his emergency lights and siren. He identified the vehicle as a blue Mercury with three (3) occupants wearing dark clothing.

The pursuit was continuing when Officer Bryfogle observed a “black handgun come out the back passenger window of the vehicle and point in [his] direction.” “Three shots [were] fired towards the front of [his] patrol vehicle approaching Main Street.” His vehicle was struck by these bullets, and a subsequent examination revealed bullet holes through the bumper, the lower plastic air vent, and the driver’s side front tire.

Officer Bryfogle continued his pursuit, and after turning onto Main Street, the Mercury put on its brakes, almost coming to a complete stop. The passenger in the rear of the vehicle continued to fire his “black semiautomatic handgun”, and with that, Officer Bryfogle rammed the back of the Mercury. The mercury began to slow, and Officer Bryfogle tried to create some distance between the two vehicles as a precautionary measure. When the Mercury reached 1st Street, the back passenger exited the vehicle, and a little further down the street, the front passenger departed. Finally, while the vehicle was still “rolling”, the driver fled, and ran behind the back of the Mercury.

Officer Bryfogle, who was still in his patrol vehicle, followed the driver and bumped him with the front bumper of his patrol vehicle. Although the driver was knocked down, he jumped up, and Officer Bryfogle knocked him down a second time. Officer Bryfogle then exited his vehicle, and the driver jumped up again and began running. He continued to do so until he was struck by Sergeant Troy Schantz’s patrol vehicle. All of Officer Bryfogle’s testimony was captured by the on-board video from his patrol vehicle, which was introduced into evidence at trial.

Sergeant Schantz also responded to the bank, and as he approached the front of the bank, he heard communication from Officer Bryfogle that he was in pursuit of a vehicle. He also heard that shots were being fired at Officer Bryfogle. Sergeant Schantz returned to his patrol vehicle, and after making visual contact with Officer Bryfogle’s vehicle, he assisted in the pursuit of the Mercury. Sergeant Schantz also observed the occupants of the Mercury flee the vehicle, and assisted Officer Bryfogle in his pursuit of two (2) of the suspects. Sergeant Schantz struck the individual described as the driver of the Mercury, which caused that individual to fly onto the hood of Sergeant Schantz’s vehicle. The ski mask this individual was holding also landed on Sergeant Schantz’s windshield. Sergeant Schantz then hit his brakes, which caused that individual to then hit the pavement. While initially this individual seemed unconscious, he quickly regained consciousness and began fighting with Sergeant Schantz. He was subdued and handcuffed. A search of this individual revealed a Samsung, AT&T cell phone. He was identified as Edward Maye.

The front passenger, who was wearing a gray sweatshirt, scaled a fence at the Emmaus Maintenance Department garage area and disappeared. During a search at the fence, a black cloth glove was found attached to the top of the fence. On the ground, directly beneath the glove, a Hi-Point .380 caliber handgun was recovered.

The back passenger, who was in all black, fled “south of South 1st Street”. Sergeant Schantz coordinated a search for the two (2) other suspects, and in following the path of the back passenger, discovered a my Touch T-Mobile cell phone, and a .40 caliber Smith & Wesson handgun. A firearms expert report was introduced by stipulation, and demonstrated that this was the weapon that discharged the bullets at Officer Bryfogle.

One (1) of the responding officers was Budd Frankenfield of the Salisbury Police Department. He arrived shortly after Sergeant Schantz had Edward Maye on the ground and in custody. He received a description from Sergeant Schantz of one (1) of the fugitives, and began a search both by patrol vehicle and on foot. He eventually observed a black male wearing black sweatpants and a hooded sweatshirt walk “northbound out of the tree line and [enter] the railroad tracks approximately seventy-five feet to [his] west.” Officer Frankenfield ordered the individual to stop, but the individual disregarded his instructions and fled in the opposite direction with Officer Frankenfield in pursuit. Sergeant Geschwindt from the Emmaus Police Department eventually got the lead on this individual and he was apprehended. This individual was Isaah Sampson. However, he told Sergeant Geschwindt that his name was “Andre.”

During the search of the Mercury, Detective Timothy Hoats not only discovered the black bag with the money from KNBT Bank, but also a Blackberry phone on the back seat. This cell phone, as well as the Samsung AT&T seized from Edward Maye, the T-Mobile cell phone discovered with one (1) of the firearms near the getaway vehicle, and the Sanyo Boost Mobile phone which was recovered from the ground where Hishamu Curry was apprehended, were analyzed by Detective Jason Apgar. Detective Apgar was qualified as an expert in utilizing a universal forensic extraction device referred to as a Cellbrite machine. His expert testimony documented the retrieval of data from these cell phones.

The Curry cell phone was recovered at approximately 7:00 p.m. on the date of the robbery, when members of the Allentown Police Department cornered a vehicle in connection with this robbery. Lieutenant Glen Domey testified that after this vehicle was stopped, he exited his patrol vehicle with his gun drawn, and ordered Hishamu Curry to put his hands in the air. Lieutenant Dorney approached the vehicle, opened the door, and removed Curry from the vehicle. Curry either had the cell phone on his person, inside a pocket or on his lap. As Lieutenant Domey pulled Curry from the vehicle, the cell phone “flew out of his lap area and onto the ground.” FBI Agent Alan Jones picked up the cell phone, and handed it to FBI Agent Thomas Neeson, who turned it over to Detective Apgar.

When Hishamu Curry was removed from the vehicle, he was less than cooperative, necessitating the use of force to handcuff him. Once the officers were able to take control of him, he told them, “Okay, you caught me.”

Detective Apgar’s retrieval of the text messages from the Curry cell phone demonstrated the planning of the robbery between Curry, Sampson, and Maye. In that regard, the Commonwealth utilized a composite of the three hundred and ninety-five (395) text messages retrieved from the Cuny cell phone to show communications between all three (3) conspirators in the days leading up to and the day of the robbery. Additionally, Curry’s text messages in his flight to avoid apprehension were also part of the composite exhibit.

A review of the composite shows that number 484-560-5464 matches the phone number of the Samsung, which was recovered from Maye. Number 484-860-8898 matches the phone number of the Blackberry, which was recovered from the back seat of the Mercury. The my Touch cell phone, which was discovered with the Smith & Wesson handgun on the path the rear passenger fled, not only contained a contact card with the number 484-860-8898, but also a photograph oflsaah Sampson.

The one hundred and twenty-seven (127) text messages contained in Commonwealth Exhibit 67 use coded language and conversations. An example includes: “when u wanna strike a vault”, to which Curry replies “where”, and he in turn receives the reply “emmaus”. Following the robbery, Curry’s conversation with “Mizzy” is less coded:

Curry: In a world of trouble again!
Mizzy: U got me scared and my nerves r bad..I hope it
aint nothin we can get u out of!!!!!
Curry: Hopefully not, but its bad bad bad sis!

Discussion

It is the appellant’s contention that it was error to permit the introduction of the text messages. He relies upon Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), appeal granted 44 A.3d 1147 (Pa. May 15,2012). In Koch, thirteen (13) drug-related text messages were transcribed from the appellant’s cell phone and introduced into evidence at trial. It was argued that the text messages were not properly authenticated because there was no evidence that the appellant was the “author of the text messages, nor evidence that drug-related texts were directed to her because Commonwealth witnesses conceded that another person was using [her] phone at least some of the time.” Id. at 1002.

Following a review of Pa.R.E. 901(a) and caselaw from both Pennsylvania and other jurisdictions, it was held that the text messages were not properly authenticated, and constituted hearsay. Id. at 1005. “The detective’s description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on Appellant’s cellular phone, is insufficient for purposes of authentication where the Commonwealth concedes that Appellant did not author all of the text messages on her phone.... [T]hat authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” Id.

The text messages captured from the appellant’s Sanyo cell phone do not present the same authentication issues raised in Koch. His authorship of most of the text messages cannot reasonably be disputed, especially in light of their content both prior to and subsequent to the robbery. The text messages provided a continuity of events leading up to the robbery of the KNBT Bank, as opposed to the drug-related text messages in Koch, which appear to be random and not interconnected. Additionally, the other persons, who were participants in the texting, are easily identified. Prior to the robbery, the other texting partners were either in possession of the cell phone recovered on Edward Maye, or in the getaway vehicle. Based on the evidence introduced at trial, that person was the back seat passenger, Isaah Sampson.

The appellant was also in possession of the Sanyo cell phone when he was apprehended. No testimony was presented that on the day of the robbeiy or the days leading up to the robbery, anyone else had possession of it. This is in sharp contrast to Koch, in which the Commonwealth conceded that another person used the cell phone in question. Likewise, the appellant’s contention at trial that the Sanyo cell phone which “flew out of [appellant’s] lap” was not in his possession is directly contradicted by the circumstantial evidence related to its recovery.

This is not a case in which authorship is based solely on evidence that the text message was sent from a cell phone assigned to an individual like Koch. Here, as opposed to Koch, there are “contextual clues” in the text messages which reveal the sender. Id. at 1005. For example, within hours of the robbery, the text messages on the Sanyo disclose that appellant is a wanted man, and he is fully aware that the police are attempting to apprehend him. See Rodriguez v. State, 273 P.3d 845, 849-850 (2012) citing Koch (collecting cases)(Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages themselves such as where the messages contain factual information or references unique to the parties involved.).

Pa.R.E. 901 demonstrates that evidence may be authenticated in a number of ways. In re F.P., 878 A.2d 91, 94 (Pa.Super. 2005) quoting Commonwealth v. Brooks, 508 A.2d 316, 319 (Pa.Super. 1986)(“A document may be authenticated by direct proof and/or by circumstantial evidence. Proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.”)(intemal citations omitted). “[T]he ultimate determination of authenticity is for the jury. A proponent of a document need only present a prima facie case of some evidence of genuineness in order to put the issue of authenticity before the factfinders.” Brooks at 320 (emphasis in original). In Tienda v. State, 358 S.W. 3d 633, 639 (Tex.Ct.App. 2012)(collecting cases), the many ways of authenticating electronic evidence was explained in pertinent part as follows:

Text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity. Such prima facie authentication has taken many forms; sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication. Sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.

Id. at 639-640.

Here, the appellant’s possession of the Sanyo cell phone, the exchange of text messages between the appellant and cell phones either seized from a conspirator or the getaway car, and the substance of the text messages, all provide the threshold necessary for authentication. All of the cell phone activity between the appellant and the other cell phones ends immediately prior to robbery, when presumably the three (3) conspirators are on their way to the bank together. Additionally, the absence of text messages after the robbery demonstrates the cell phones were in police custody. Finally, the text messages after the robbery with “Mizzy”, whom appellant calls “sis”, and an unidentified female who calls him “Moe”, leave little doubt that the appellant is attempting to avoid apprehension. Two (2) of the last text messages the appellant received was “They know!!!!!” and “They got my whole farm under survailance [sic]...u gotta bounce asap!!!”

The substance of the text messages were also admissible under the co-conspirator exception to the hearsay rule. Pa.R.E. 803(25)(E)(“A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy). Three (3) requirements must be established: (1) the prosecution must prove the existence of a conspiracy between the declarant and the defendant against whom the evidence is being offered; (2) the Commonwealth must show that the statements were made during the course of the conspiracy; and (3) the Commonwealth must show that the statements were made in furtherance of the common design. Commonwealth v. Holton, 906 A.2d 1246, 1251 (Pa. Super. 2006)(citations omitted)(Statements made by drug buyer were admissible under co-conspirator exception to hearsay rule.).

The circumstances of this bank robbery, i.e. three (3) masked men with guns who proceed to threaten bank employees in the course of sprinting away with over eleven thousand dollars, adequately shows the three (3) were acting in concert. The text messages from cell phones identified and seized from the appellant, Maye, and the Mercury not only prove the existence of the conspiracy, but the identity of the declarants by a “fair preponderance of the evidence.” Id. Each of the text messages precede the bank robbery and are evidence of discussions regarding their planning of the robbery. For example, the text messages describe their intentions to “strike a vault”, and where it was to take place, i.e. “emmaus”.The text messages also discuss the possession of a getaway car and weapon, i.e. “i got a wheel u got a tool so tell me”. Each of these statements was made in furtherance of the common design which included what time and where the participants would meet on the day of the robbery.

Finally, the text messages that were made after the robbery constitute admissions by the appellant. See Rule 803(25)(A); Commonwealth v. Edwards, 588 Pa. 151, 184-185, 903 A.2d 1139, 1157-1158 (2006), cert. denied 127 S.Ct. 2030 (2007). In that regard, “voluntary, extrajudicial statements made by a defendant may be used against [him] although they contain no admission of guilt. Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975); Commonwealth v. Jones, 247 A.2d 624, 627 (Pa.Super. 1968)(Guilty knowledge recognized by statement “we could get in a lot of trouble over it.”); State v. Pindale, 592 A.2d 300, 309-310 (N.J.Super. 1991)(The conduct of a defendant subsequent to the commission of a crime is relevant when the conduct in question indicates a consciousness of guilt.). Even so, the appellant’s attempt at evading capture was still part of the on-going conspiracy. Commonwealth v. Chester, 526 Pa. 578, 593-594, 587 A.2d 1367, 1374-1375 (1991)(Statements made after murder to third parties were properly admitted under the co-conspirator exception to hearsay rule); see also Commonwealth v. Lambert, 529 Pa. 320, 335, 603 A.2d 568, 575 (1992)(Statement falls within co-conspirator exception because it was part of the conspiracy dealing with flight from the scene).

For all the foregoing reasons, the judgment of sentence should be affirmed.

ORDER

And now, November 29, 2012, it appearing that the appellant has filed aNotice of Appeal in the above-captioned matter; it further appearing that the appellant has filed a “1925 b statement of matters complained of on appeal” pursuant to Pennsylvania Rule of Appellate Procedure 1925(b); it further appearing that our accompanying opinion satisfies the requirements of Pennsylvania Rule of Appellate Procedure 1925(a);

It is hereby ordered that the clerk of courts, criminal division, shall transmit the record in the above-captioned matter to the Superior Court forthwith;

It is further ordered that the clerk of courts shall include with the transmittal of the record the following documents:

1. Notes of testimony from motions in limine held November 14, 2011.

2. Notes of testimony from the trial held November 15, 2011 to November 19, 2011.

3. Notes of testimony from the Sentencing held February 13, 2012.

4. A copy of the appellant’s Pre-Sentence Investigation Report for review by the Superior Court, and that said report shall be sealed to preserve its confidentiality pursuant to Pa.R.Crim.P. 703.

      . 18 Pa.C.S. § 3701(a)(1)(B).

      . 18 Pa.C.S. §2501, §901.

      . 18 Pa.C.S. § 2702, (a)(1), (2).

      . 18 Pa.C.S. § 3701,(a)(1)(h), § 903.

      . The appellant received three (3) concurrent sentences of not less than ten (10) years nor more than thirty (30) years for the three (3) counts of robbery. He also received a consecutive sentence of not less than ten (10) years nor more than twenty (20) years for the attempted homicide and aggravated assault charges pertaining to Officer Bryfogle. Both of those charges were imposed concurrently with each other. He also received a consecutive sentence of not less than five (5) years nor more than ten (10) years for the aggravated assault charge involving Michelle Andrews, the assistant bank manager. Finally, the appellant received a consecutive sentence of not less than five (5) years nor more than ten (10) years for the charge of Criminal Conspiracy to Commit Robbery. Notes of Testimony, Sentencing (hereinafter N.T.S.H.), pp. 25-29.

      . 1925(b) Statement of Matters Complained of on Appeal, ¶¶ 1-2.

      . Sanyo Model SCP 2700. Notes of Testimony, Trial (hereinafter N.T.T.), 11/17/11, p. 266.

      . The Superior Court was notified of this action by letter dated September 11, 2012.

      .N.T.T., 11/16/11, pp. 25, 50.

      . N.T.T., 11/15/16, pp. 97,99.

      . Id. at pp.99-100; N.T.T., 11/16/11, pp. 14,17,59.

        . Id. at p. 101;N.T.T., 11/16/11, pp. 39, 59.

      . N.T.T., 11/16/11, pp. 15-16.

      . Id. at pp. 26-27.

        .Id. at pp.27-28.

        .Id. at pp.27-33.

      . Id. at pp. 49-50, 66-67.

      . N.T.T., 11/16/11, pp. 50, 64.

      . Id. at pp. 58-60.

        . Id. at pp. 42, 57-58.

      . N.T.T., 11/17/11, pp. 201-205.

      . N.T.T., 11/16/11, p. 83.

      . Id. at pp. 84, 161.

      . Id. at p. 92.

      . N.T.T., 11/16/11,p. 95.

      . Id. at p. 96.

        . Id. at pp. 117-119; N.T.T., 11/18/11, pp. 177-180.

      . N.T.T., 11/16/11, pp. 97-98.

      . Id. at p. 99.

      . N.T.T, 11/16/11, pp. 175-176,178,190.

        . Id. at pp. 190,215.

      . Id. atpp. 131, 170-171,214, 217-219; N.T.T., 11/17/11, p. 72.

      . N.T.T., 11/16/11, pp. 177,235-236,239.

      . N.T.T., 11/16/11, pp. 191-192, 197, 199-200,202.

      . Id. at p. 254.

      . Id. at pp. 255-260.

      . Id. at pp. 259-260, 287-289.

      . Id.

      . Id. at p. 290.

      . Id. at pp. 206,208.

      . N.T.T., 11/17/11, pp. 244-251,263.

      . Id. at pp. 147-148.

      . N.T.T., 11/18/11, pp. 22-23,28-29.

      . N.T.T., 11/17/11, pp. 147,151.

      . See Commonwealth Exhibit 67, which is attached to this Opinion as Exhibit A.

      . N.T.T., 11/18/1 l,p. 43.

      . Commonwealth Exhibit 67, #39-#106, #152, #155-#160, #307-#320.

      . N.T.T., 11/18/11, p. 45.

      . Id. See also Commonwealth Exhibit 67. #151, #153-#154, #282-#289, #323-#328.

      . N.T.T., 11/18/11, pp. 52-58.

      . Commonwealth Exhibit 67, #41-#45.

      . Motions In Limine, 11/14/11, pp. 21-59; N.T.T., 11/17/11, pp. 335-339; N.T.T., 11/18/11, pp. 10-17.

      . Commonwealth Exhibit 67, #387, #394.

      . Commonwealth Exhibit 67, #41, #45.

      . Id at #97.

      . Id. at #315-#328.

      . It is unclear if the appeilant’s hearsay claims pertain to the participants of the text messages. If so, similar contentions have been rejected because the other portions of the conversation place the appellant’s “nontestimonial statements into context.” U.S. v. Hendricks, 395 F.3d 173,184 (3d Cir. 2005); see also U.S. v. Peak, 2006 WL1030226 (E.D. Pa. 2006).


author: DIVITO, J.,

text:
    Snizavich v. Dow Chemical Co.

      Aaron Freiwald, for plaintiff.

      Julie Randolph, for defendant.
    November 19, 2012
   DIVITO, J.,

This is based upon an appeal by Anne Snizavich (“plaintiff’), individually and as the administrator of the estate of Joseph Snizavich (“decedent”) from the court’s order entered on April 17, 2012 granting Dow Chemical Company and Rohm and Haas Company’s (“defendants”) motion to preclude the testimony of Thomas H. Milby. For the reasons that follow, the order by the court granting the motion should be affirmed as well as the subsequent order granting the defendants’ motion for summary judgment.

I. Background

Plaintiff in her complaint alleged that her husband Joseph Snizavich, who died on September 19, 2008 as a result of Glioblastoma Multiforme brain cancer, developed cancer as a result of chemicals that the decedent was exposed to during the time that he worked at defendants’ facilities in Spring House, Pennsylvania. The decedent was not an employee of the defendants, but rather was employed by an outside contractor, the Welsch Company, to perform HVAC work at the Spring House location. Plaintiff alleges that the decedent worked at the Spring House location for approximately 13 years between 1980 to 1993.

In support of the plaintiff’s allegations that the decedent’s cancer was a result of exposure to chemicals at the Spring House facility, she submitted a report (“Milby Report”) written by Thomas Milby, M.D. (“Milby”) stating that it was his opinion that chemicals produced by Rohm and Haas at the Spring House location were the cause of the Glioblastoma Multiforme cancer. Milby identified three events which he considered “crucial” in coming to his opinion, 1) the decedent worked at the Spring House facility for 13 years during which time he was exposed to various chemicals, none of which were named or discussed in the report; 2) the decedent died of a brain cancer that accounts for approximately 2.4% of cancer deaths in the United States; 3) a University of Minnesota School of Public Health report (“University of Minnesota Report”) showed that there was a higher than average incidence of brain cancer deaths among Spring House facility employees but that no clear link existed between the chemicals used at Spring House and the higher incidence of brain cancer.

In response to the Milby Report, defendants filed a motion to preclude the testimony of Thomas H. Milby. The motion was granted by the court on the grounds that the report was wholly inadequate under Pennsylvania law as failing to provide a “reasonable degree of medical certainty” and that any sort of Frye analysis of its methodology would be futile as none apparently existed within the report. Further, as the plaintiff had shown no evidence or expert testimony causally linking the defendants to the decedent’s illness and death, the motion of the defendants for summary judgment was granted. The plaintiff now appeals those rulings.

II. Plaintiff’s Matters Complained of on Appeal

The plaintiff in her statement of errors complained of on appeal lists several points of contention, however, they can be summed up as stating that the court erroneously precluded the Milby Report and testimony, did not conduct a full Frye analysis, and, subsequently, granted the defendants’ motion for summary judgment.

Whether expert testimony regarding scientific knowledge should be admissible is controlled by Pennsylvania Rule of Evidence 702, which states:

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. Pa.R.E. 702

The Frye analysis, first formulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and adopted by Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977), is considered to be a part of Rule 702. The Pennsylvania Supreme court has stated that, “Under Frye, novel scientific evidence is admissible if the methodology that underlies evidence has general acceptance in the relevant scientific community.” Grady v. Frito-Lay, Inc., 576 Pa. 546, 555, 839 A.2d 1038, 1044 (2003). Hence, for a Frye analysis to be performed there must be some type of underlying methodology for a court to be able to analyze.

In applying a Frye analysis the Pennsylvania Supreme court stated four points that a court should consider. First, “the proponent of a proposition bears the burden of proving it [and] we emphasize that the proponent of expert scientific evidence bears the burden of establishing all of the elements for its admission under Pa.R.E. 702.” Grady, 576 Pa. at 558, 839 A.2d at 1045. Secondly, the proponent is required to “prove that the methodology an expert used is generally accepted by scientists in the relevant field as a method for arriving at the conclusion the expert will testify to at trial.” Id. Third, under Pa.R.E. The Frye requirement is only one of several criteria, including the expertise of the witness presenting the scientific evidence. Id. at 1045-46. Finally, the court reiterated:

[T]he admission of expert scientific testimony is an evidentiary matter for the trial court’s discretion and should not be disturbed on appeal unless the trial court abuses its discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Id. at 1046 (Internal Citations Omitted).

The rules in granting summary judgment are well known and based uponPa.R.C.P. 1035.2. Itfindsthat, “where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.” ADP, Inc. v. Morrow Motors Inc., 969 A.2d 1244, 1246 (Pa. Super. 2009). Furthermore, “failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law.” Id.

Based on the foregoing, it was not necessary to conduct a full Frye analysis on the report issued by Milby, as it failed both of the basic requirements of showing a coherent scientific or technical methodology to which any type of analysis could be applied as to its acceptance in the scientific community or showing that its conclusions would in any way assist the trier of fact to understand the evidence or a fact in issue. The report is nothing more than conclusions, without any apparent basis in scientific studies or research, being supported by large leaps in logic and anecdotal evidence of other individuals who worked at the Spring House facility having died of brain cancer. In stating his conclusion, Milby states that he reviewed four depositions, the University of Minnesota Report, a schematic of the Spring House facility, a list of chemicals identified as possibly causing brain cancer, the decedent’s pathology report, and records of the Steamfitter’s Union.

The depositions provide no basis for a medical or scientific conclusion. Two are never referenced at all in the report, one is merely the decedent’s Welsch supervisor providing information of the decedent’s work schedule and duties, and the final is that of a chemist, Ledelle Collier, that worked at the facility. While the chemist does state that there were organic chemicals in the air and that these chemicals were at times recirculated in the air, the Milby Report fails to identify a single one of these chemicals and what effect, if any, these chemicals could have on the development of Glioblastoma Multiforme cancer. The chemist also referenced testing and studies of the air done by Rohm and Haas in approximately 1982, but the Milby Report does not mention that Milby ever actually read or investigated any of those alleged reports or based any conclusions on them.

Most troubling, however, is Milby’s alleged reliance on the University of Minnesota Report, which was the sole source of scientific analysis that Milby reviewed in coming to his opinion. Though Milby correctly states that the report found that there is a statistically higher occurrence of brain cancer amongst individuals that worked at the Spring House facility, and that possibly thousands of chemicals have been used at the Spring House facility, the Milby Report completely glosses over the conclusions of the University of Minnesota Report. It’s conclusions are worth citing and it states, in part:

Several chemicals of interest were part of this investigation and included acrylates, BCME, CMME, isothiazolones and nitrosoamines. Based on the approach used to categorize exposures to these materials, these chemicals did not appear to be related to the brain cancers. Similarly, working with these materials was not associated with the apparent brain cancer excess. Although this excess was not clearly linked to specific exposures, jobs, functions or departments at Spring House, it is not entirely possible to rule out a workplace explanation as a result of these analyses. Likewise, the possibility exists for this finding to represent random clustering of this rare disease or to be related to confounding by additional non-occupational risk factors. C. Baase, et al, “A report on the Mortality Experience of the Spring House Research Facility in Montgomery County, Pennsylvania,” 23 (October 25 2010)(emphasis added).

In short, the study concludes that it is completely unable to state with any degree of certainty what the cause of the increase in brain cancer is amongst this population, or indeed whether it has anything to do with the chemicals at Spring House, is related to some other factor completely outside the facility, or whether it is merely a statistical anomaly.

It is obvious why the Milby Report does not include a full or even partial recitation of these conclusions, as, though Milby failed to conduct any specific scientific study himself or rely on any other study, Milby somehow comes to the exact opposite conclusion as that of the University of Minnesota Report. Milby, after glossing over study’s conclusions, finds “notwithstanding this exposure characterization problem, I believe that it can be said with reasonable medical certainty that these exposures did indeed cause the observed excess of brain cancer.” Milby Report, 5. Basic scientific rigor would suggest that Milby would then state his own methodology for how he came to this certainty in the face of the only scientific study regarding this matter that he consulted stating that such certainty was an impossibility with the evidence available. Milby, however, does not state any scientific methodology that he used nor does he call into question the University of Minnesota Report’s methodology that might make its findings incorrect, rather he simply states his own opposite conclusions without any further support.

Indeed, despite Milby initially claiming that his opinion is based on a reasonable degree of medical certainty, he then couches his opinion in numerous terms of ambiguity, vagueness, and uncertainty. Amongst other things, Milby states:

I offer this opinion with full knowledge that neither the responsible causal agent or agents, nor the precise exposure variables can be wholly identified, and/or characterized. Yet [decedent’s] fatal brain cancer more likely than not occurred as a consequence of his work at Spring House facility. Moreover, this chain of events leads me to opine, with a reasonable degree of medical certainty that their some — as yet unidentified — brain cancer risk factors are at play at the Spring House facility. Milby Report, 5 (emphasis added).

In short, despite using the “magic words” regarding medical certainty, his entire conclusion is based on the premise that he has no evidence of what chemicals the decedent was exposed to or what effect they have on the human body, but that some chemical must have caused the Glioblastoma Multiforme cancer. The entire conclusion of the Milby Report is nothing more than a logical post hoc ergo propter hoc fallacy — decedent worked at Spring House, then decedent died of brain cancer, therefore working at Spring House caused the decedent to die of cancer. While such an opinion might ultimately be proven correct, nothing in the Milby Report provides any evidence to support the conclusion.

This lack of evidence is demonstrated by the other information allegedly reviewed by Milby in coming to his opinion. The Milby Reports states that he reviewed a list of chemicals identified as possibly causing brain cancer as well as the decedent’s pathology report. In his report, however, Milby failed to cite a single one of these chemicals that possibly cause brain cancer, failed to cite a single piece of evidence in the decedent’s pathology report that would link his brain cancer to a chemical agent, and failed to cite a single chemical found or produced at the Spring House facility that has been linked to brain cancer. While the court understands that the Spring House facility has been in operation for decades and that many chemicals have been produced there during that time, the complete absence of a single piece of specific evidence or even an apparent attempt to obtain any specific evidence cannot be ignored when analyzing the Milby Report’s opinion.

Ultimately, the Milby Report seems to be little more than an unscientific lay opinion given by someone who happens to be a medical doctor. A review of the evidence provided for Milby’s opinion is illustrative: brain cancer causing chemicals found or produced at the Spring House facility — unknown; brain cancer causing chemicals the decedent was exposed to — unknown; methodology used by Milby — unknown; previous University of Minnesota Report on causes of brain cancer occurrences in former Spring House employees — inconclusive; flaws, if any, in the University of Minnesota Report methodology — unknown. Despite every relevant factor being unknown, Milby still states he was medically certain, leading to the court’s conclusion that this essentially was an uninformed opinion based on mere time, place, and circumstance.

Due to the foregoing, a Frye analysis was unnecessary as the Milby Report did not meet the basic requirements of Pa.R.E. 702. No “scientific, technical or other specialized knowledge beyond that possessed by a layperson” appears to have been used in formulating the opinion. This is demonstrated by the lack of any specifics regarding possible chemical sources or causes for the decedent’s brain cancer, and the conclusions of the University of Minnesota Report that were then wholly discarded by Milby to come to the opposite conclusion, which was informed merely by the fact that the decedent worked someplace where chemicals were prevalent. As such, the Milby Report and/or Milby testimony would not have assisted “the trier of fact to understand the evidence or to determine a fact in issue,” as the report contained no evidence, causal or otherwise, linking the decedent’s brain cancer to the Spring House facility. Finally, keeping in mind the points made by Grady v. Frito-Lay, Inc. court, the Milby Report failed to meet both the burden of proving its proposition and, despite the plaintiff’s protest to the contrary, that any scientific methodology at all was used in coming to its conclusion, let alone that it was generally accepted in the scientific community. Due to these numerous flaws, the court properly found that the alleged scientific, technical, or specialized evidentiary value of the Milby testimony would not have aided the trier of fact in determining a fact in issue, did not meet the requirements of Pa.R.E. 702, and, thus, precluded it.

Without medical or scientific expert testimony regarding the cause of the decedent’s brain cancer, the court properly granted the defendants’ motion for summary judgment. Without the expert testimony, and because no other evidence was presented demonstrating that the decedent was exposed to chemicals that could be found to cause Glioblastoma Multiforme cancer, there was no evidence with which a trier of fact could conclude that there was either a breach of the duty of care by the defendants or that the defendants actions were cause of the decedent’s cancer and death. Accordingly, the motion for Summary Judgment was properly granted as there were no disputes of material fact and those facts in evidence entitled the defendants to judgment as the plaintiff would be unable to meet the burden needed to prove the elements of her case.

III. Conclusion

The Milby Report was based on broad leaps of logic, virtually no specifics of any kind that would assist a trier of fact, and a clear lack of any ascertainable scientific methodology. As this was the case, it failed to meet the admission standards of Pa.R.E. 702, rendering a Frye analysis unnecessary, and was properly precluded by the court. As the plaintiff failed to present any evidence of a scientific or medical causal link between the decedent’s death and his time working at the Spring House facility, the court properly granted summary judgment for the defendants. For these reasons, the order of April 17, 2012 granting the defendants’ motion to preclude the testimony of Thomas H. Milby and motion for summary judgment should be affirmed.

      . Milby frequently referenced the University of Minnesota School of Public Health Report but did not cite it. Its full citation is: C. Baase, et al, “A report on the Mortality Experience of the Spring House Research Facility in Montgomery County, Pennsylvania” (October 25,2010).


text:
    American Express Centurion Bank v. Sebia.

      Jordan Felzer, for plaintiff.

      Cynthia S. Ray, for defendant.
    December 7, 2012
   NANOVIC, J.,

As is often the case in credit card collection cases, the parties here dispute not only the amount, but also the obligation of the credit card holder for unpaid principal, interest, attorney fees and penalties claimed by the issuing bank. What distinguishes this case from a typical debt collection proceeding, and is critical to our decision, is the need to determine what cause or causes of action plaintiff has set forth in its complaint.

At trial, the plaintiff, American Express Centurion Bank (“Bank”), was unsure of its cause of action: whether for an account stated, for breach of contract, or for both. The defendant, Alfonso Sebia (“Sebia”), argued neither cause of action was proven, but to the extent one was pled, it was for breach of contract.

PROCEDURAL AND FACTUAL BACKGROUND

Bank commenced this action by complaint filed on February 22, 2010. Preliminary objections alleging, inter alia, insufficient specificity were filed and granted, with leave to file an amended complaint. This was duly filed on August 26, 2010. Therein, the Bank alleged that Sebia applied for and obtained a credit card from the Bank; that S ebia’s credit card account was opened on or about January 17, 1994, pursuant to a written cardmember agreement in effect at all times relevant; that pursuant to the cardmember agreement, Sebia was given the right to make purchases for a promise to timely pay the unpaid principal balance plus interest, fees and penalties when applicable; that Sebia used the account which, as of January 2009, had an unpaid overdue balance of $10,073.92, with the most recent payment made on or about September 4, 2008, in the amount of $250.00; and that Sebia had “failed to make timely payments on the account, although demand was made for said payments, thereby breaching the contract.” Also attached to the complaint and incorporated by reference were monthly credit card statements on the account for the period beginning February 2008 and ending February 2009, and a cardmember agreement purported to be that for Sebia’s account.

The complaint consists of fifteen numbered paragraphs. All are beneath the heading “first count,” even though no additional counts are identified in the complaint. Sebia essentially denied all allegations of the complaint, in the process denying that he applied for, received, used, or made payments on the credit card which is the subject of these proceedings.

A nonjury trial was held on February 10, 2012. At this trial, Bank presented no witnesses and elected to try its entire case through the use of documents offered pursuant to Pa.R.C.P. 1311.1. These documents consisted of billing statements for the account from February 9, 2005 through April 10,2009, Exhibits P-1 through P-47, and six checks making payments on the account at various times between June 21, 2005 and April 25, 2006, Exhibits P-48 through P-53, purportedly written by Sebia to the order of American Express. The unpaid balance evidenced by the account statements, as of the last statement, was $10,154.05.3 Sebia presented no evidence in his defense and was not personally present at trial.

DISCUSSION

Count one of the complaint clearly sets forth a claim for breach of an express contract. “In a claim for breach of contract, the plaintiff must allege that there was a contract, the defendant breached it, and plaintiff suffered damages from the breach.” Discover Bank v. Stucka, 33 A.3d 82, 87 (Pa.Super. 2011) (citation and quotation marks omitted). Here, the complaint identifies and attaches the professed contract which is the subject of the action — the cardmember agreement, alleges its terms were breached by Sebia’s failure to make timely payments when due, and claims $10,073.92 is due and owing.

Notwithstanding these averments, at the time of trial, Bank failed to prove a breach of the cardmember agreement. In fact, Bank never sought to introduce or have admitted the cardmember agreement attached to the complaint, or to prove any other express agreement. Having failed to prove the existence or terms of an express contract whose terms were breached, Bank failed to prove a case for breach of an express contract and entitlement to damages thereunder.

What was proven was Sebia’s acceptance of Bank’s offer to open a credit card account by his use of the credit card issued to purchase goods and services. Also proven was that Sebia, on various specified dates, made payments on the credit card balance, as billed, and then continued to use the card. The Bank further proved that Sebia’s course of conduct established his understanding and acceptance of certain terms and conditions for use of the credit card account and that Sebia breached these terms by failing to make required payments when due.

In accordance with the foregoing, while we believe the Bank’s evidence, if accepted, establishes the existence of a contract implied in fact and its breach, this cause of action was never pled nor did Bank ever seek to amend its pleadings to assert such claim.

A contract implied in fact arises where the parties agree upon the obligations to be incurred, but their intention, instead of being expressed in words, is inferred from their acts in the light of the surrounding circumstances. An implied contract may be found to exist where the surrounding circumstances support a demonstrated intent to contract.

Stucka, 33 A.3d at 88-89 (241 Pa. Super. 2011) (citations and quotation marks omitted). Absent the pleading of this claim, Bank is not entitled to recovery on this basis. See Birchwood Lakes Community Association, Inc. v. Comis, 442 A.2d 304, 309 (Pa.Super. 1982) (“If a plaintiff fails to succeed in his claim based on an express contract he may not then attempt to demonstrate a contract implied in fact unless such has been averred in the complaint.”); see also Allegheny Ludlum Industries, Inc. v. CPM Engineers, Inc., 420 A.2d 500, 501-502 (Pa.Super. 1980) (“The wrong which may be proved must be the wrong which has been alleged, not merely another wrong in the same legal category.”).

Nor did Bank’s complaint allege a prima facie case for a cause of action sounding in account stated. The essence of a common law action for an account stated is an agreement, either express or implied, based upon prior transactions, between two parties as to the correctness of an amount due. Connolly Epstein Chicco Foxman Engelmyer & Ewing v. Fanslow, 1995 WL 686045 at *5 (E.D.Pa. 1995); see also David v. Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa. 335, 341-342, 35 A.2d 346, 349 (1944) (finding that the essence of an account stated consists in the rendering of an account whose accuracy the other party has accepted, agreed to, or acquiesced in).

An account stated is an “account in writing, examined and accepted by both parties, which acceptance need not be expressly so, but may be implied from the circumstances.” Robbins v. Weinstein, 17 A.2d 629, 634 (Pa.Super. 1941).
An “account stated” traditionally arises when two parties, who engage in a series of transactions with one another, come together to balance the credits and debits and fix upon a total amount owed. See David v. Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa. 335, 35 A.2d 346, 349 (1944). This final tally, once assented to, becomes the “account stated,” and any further cause of action is based on this “account stated” rather than on any of the underlying transactions. Id.
The effect of an account stated is that
[t]he amount or balance so agreed upon constitutes a new and independent cause of action, superseding and merging the antecedent causes of action represented by the particular items. It is a liquidated debt, as binding as if evidenced by a note, bill or bond. Though there may be no express promise to pay, yet from the very fact of stating the account the law raises a promise as obligatory as if expressed in writing, to which the same legal incidents attach as if a note or bill were given for the balance.

Richburg v. Palisades Collection LLC, 247 F.R.D. 457, 464-65 (E.D.Pa. 2008) (citations and quotation marks omitted).

A cause of action for an account stated, though sounding in contract, is separate and apart from the specific contractual claims one could bring on the underlying transactions. Id. at 465.

It is an agreement between debtors and creditors. The parties agree to a consolidated statement of debt, give up their right to bring suit on any of the underlying debts, and create a duty to pay. Restatement (Second) of Contracts § 282 (1981); Restatement of Contracts § 422(1) (1932). The “account stated” is “a debt as a matter of contract implied by law. It is to be considered as one debt, and a recovery may be had upon it without regard to the items which compose it.” 29 Williston on Contracts § 73:58 (2007).

Id.

In the context of setting forth the pleading requirements for a complaint alleging a cause of action for an account stated, the court in Rush’s Service Center, Inc. v. Genareo, stated the following:

The idea behind an action upon account stated is that a preceding contract has been discharged and merged into a stated account which is based upon the earlier contract. McKinney v. Earl L. Cump Inc., 2 Adams Leg. J. 132 (1961). The necessary averments in a complaint based upon an account stated is that there had been a running account, that a balance remains due upon that account, that the account has been rendered unto the defendant, that the defendant has assented to the account and a copy of said account is attached to the complaint. Ryon v. Andershonis, 42 Pa. D. & C.2d 86 (1967). See also, Fischer v. Hyland Davry Co., 56 Luzerne Leg. Reg. 255 (1966)....
The complaint need not set forth the nature of the original transaction. Fischer, supra; Erie Insurance Exchange v. Foltz, 34 Beaver L.J. 61 (1974). Neither is the subject matter of the original debt nor a promise to pay necessary. McKinney, supra. The alleged facts upon which the averred acceptance of the account is based are also not obligatory in the complaint. Snyder v. Blain, 49 Luzerne Leg. Reg. 1 (1959). The acceptance need not be express, but may be implied. Fischer, supra; Donahue v. Philadelphia, 157 Pa. Super. 124, 41 A.2d 579 (1944).
The party relying upon the account stated need not individually set forth the items of which the account consist. Fischer, supra; Erie Insurance Exchange, supra. That is to say that plaintiff is not required to itemize the account. Weiner v. Gable, 26 Lehigh L J. 387, 69 York Leg. Rec. 119 (1955); Knedler v. Clouse, 53 Dauphin Rep. 228 (1943). Details of the book account upon which the claim is founded are not indispensable to the complaint. Datto v. Corrizan, 47 Lacka. Jur. 241 (1946).

10 D. & C.4th445,447-48 (Lawrence Co. 1991) (emphasis added).

While Bank’s complaint evidences a running account — an account opened in 1994 and billing statements for the period from February 2008 through February 2009 inclusive, and an unpaid balance as of February 2009 of $10,073.92, critically absent from the complaint is any averment that any account for the period ending in February 2009 was submitted to Sebia or that the correctness of such account was accepted, agreed to or acquiesced in by him. See Citibank (South Dakota) N.A., Bank v. Ananiev, 13 D. & C.5th 557, 559 (Monroe Co. 2010) (“[T]he complaint must include allegations which would support a finding that the cardholder has agreed to, or acquiesced in the correctness of the account.”); Ryon v. Andershonis, 42 D. & C.2d 86, 87 (Schuylkill Co. 1967) (holding that, at a minimum, the plaintiff must allege that the defendant “assented to the correctness of the account submitted to him.”). This is essential since the sine qua non of a claim premised upon an account stated is mutual assent to the correctness of the computation. Moreover, when asserting assent, it is not enough to simply aver or prove that billing statements were mailed but not responded to by the cardholder. Target National Bank v. Kilbride, 10 D. & C.5th 489, 492 (Centre Co. 2010) (quoting C-E Glass v. Ryan, 70 D. & C.2d 251, 253 (Beaver Co. 1975)); accord, Braverman Kaskey v. Toidze, 2011 WL 4851069 at *4 (E.D.Pa. 2011) (“Under Pennsylvania law, [plaintiff’s] allegation that [defendant] never contested its bills is not sufficient to show acquiescence in the correctness of the account.”).

Again, as was the case for a potential claim for breach of a contract implied by law, Bank made no request at trial, or previously, to amend its pleadings to include a claim for account stated or to conform the complaint to the evidence offered and admitted. See Pa.R.C.P. 1033 (Amendment); see also Tindall v. Friedman, 970 A.2d 1159, 1171 (Pa. Super. 2009) (noting that Rule 1033 has been interpreted to allow amendments at any stage of the trial proceedings with the caveat that amendment cannot result in “unfair surprise or prejudice to the other party” and further stating that “if the amendment contains allegations which could have been included in the original pleading, as is the usual case, then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered”) (citations omitted and emphasis in the original). In this regard, it is important to add that neither Sebia nor anyone on his behalf appeared at trial to testify, the record is closed, and a verdict has been rendered.

CONCLUSION

The complaint upon which the Bank’s claim is based asserts a cause of action for breach of a specific express written contract between the parties. Because Bank has failed to prove the existence of this contract, or any other express agreement, Bank’s claim must fail. See Commonwealth Financial Systems v. Smith, 13 D. & C.5th 1 (Delaware Co. 2010) (denying plaintiff’s motion for post-trial relief for, among other reasons, plaintiff’s failure to present the original contract between the parties, thereby failing to establish the first element of its action for breach of contract).

      . No other payments are alleged in the complaint or credited in any of the billing statements attached as exhibits. Nor is there any averment that Sebia at any time assented to the correctness of the account or that billing statements were submitted to him and retained for an unreasonable length of time without payment.

      . The cardmember agreement attached to the complaint consisted of twelve typewritten pages, contained no signature or signature line, and bore a generation date of January 2009.


author: JOHNSON, J,

text:
    Surnamer v. Rothrock.

      James T. Huber, for plaintiff.

      Gary A. Brienza, for defendant.
    December 15, 2012
   JOHNSON, J,

I. INTRODUCTION

Before the court for consideration is plaintiff Frank Sumamer’s complaint filed March 29, 2010. Plaintiff’s complaint alleges breach of an oral contract by defendant Bruce L. Rothrock, Sr. In turn, defendant filed a separate complaint, which was later consolidated with the aforementioned case, and which sounds as a counterclaim alleging breach of contract by plaintiff.

II. FINDINGS OF FACT

1. On January 23, 1999, plaintiff and defendant jointly purchased a Piper Saratoga airplane, call number N803GW (“Plane”), with each owning a half-interest.

2. The Plane was titled in the name of Rothrock Motor Sales, Inc. (“Dealership”).

3. In January, 2008, the parties met at Charlie Brown’s restaurant in Allentown Pennsylvania (“meeting”) to discuss a real estate transaction.

4. The court finds defendant credible that the meeting took place in early-to-mid January, and finds plaintiff’s testimony that the meeting took place on January 30,2008 not credible.

5. During the meeting, the parties also discussed the Plane.

6. Plaintiff had been seeking to sell his interest in the Plane, which defendant knew.

7. Defendant told plaintiff he would buy his half share for $140,000.00, ostensibly for the purpose of reselling it at the same price to another party, Greg Feinberg (“Feinberg”), with whom plaintiff had been negotiating, with no success, to sell his share of the Plane.

8. Plaintiff knew defendant planned to resell the Plane. However, defendant did not state that he would only buy the Plane on the condition that Feinberg would purchase it from him.

9. Plaintiff and defendant did not specify a particular date on which payment would be due. Plaintiff stated at trial that defendant planned to pay within a “few months.” Meanwhile, plaintiff’s Exhibit 5B, a letter from plaintiff to defendant dated November 2, 2009, stated that defendant said he needed “60 days.”

10. Plaintiff, seeking to memorialize in writing what he alleges was an agreement, delivered a proposed contract (“contract”) to an employee at Rothrock motor sales on or around January 31, 2008. The contract stated that defendant had sixty (60) days within which to pay plaintiff $140,000.00.

11. Defendant never signed the contract.

12. At various intervals thereafter, plaintiff requested defendant pay for plaintiff’s share of the Plane.

13. Defendant learned on March 7, 2008 that Feinberg was no longer interested in buying a stake in the Plane.

14. Later, in an indeterminate manner and at an indeterminate date, defendant refused to pay $140,000.00 for plaintiff’s share.

15.Nowhere in the evidence has defendant admitted to having made a contract with plaintiff. Defendant stated in his trial deposition (which was admitted into evidence by agreement of the parties in lieu of defendant testifying) only that he suggested plaintiff sell his share to defendant, who would then sell that share to Feinberg. A letter from defendant to plaintiff dated December 10, 2009 (“December 10 letter”) states only that defendant said, referring to the Plane, “sell it to me and I’ll sell it to (Feinberg) for $140,000.00....”

16.The parties sold the Plane in the spring of 2011 for $238,000.

17. During their ownership of the Plane, the parties agreed to each pay one-half of the Plane’s expenses.

18. Invoices for the Plane expenses were sent to, and paid by, the dealership and/or defendant. Afterward, defendant’s assistant would invoice plaintiff for half the cost.

19.After September, 27, 2007, plaintiff did not pay expenses for the Plane. While defendant alleges that plaintiff’s liability to defendant for the outstanding expenses on the Plane are $38,594.55, plus legal interest, defendant has only presented evidence proving defendant paid $19,856.08 in legal fees from January 2007 through June 2008. This represents the sum paid to Seidel, Cohen, Hof & Reid, LLC (“Lawyers”) associated with damage the Plane incurred while hangared at Queen City Airport.

20.After comparing Exhibits D3 and D9, the court finds plaintiff has paid $3,020.50 toward these legal fees.

21. The court also finds that two payments made by defendant before September 2007 remain unreimbursed. Exhibit D3 shows defendant paid legal invoices on February 12, 2007 in the amount of $330.00 and March 7, 2007 in the amount of $60.00. Exhibit D9 gives no indication that these sums are outstanding. Therefore, the court will not accept that plaintiff’s share of this money is owed to defendant.

22. The court thus finds that half of the remaining legal fees paid by defendant is $6,712.54.

III. CONCLUSION OF LAW

1. The court finds that the events at the meeting did not create a binding oral contract for purchase and sale of the Plane. It is well-established that, to maintain a cause of action in breach of contract, a plaintiff must establish, among other factors, the existence of a contract, including its essential terms. Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. 2002). For a contract to be enforceable, the nature and extent of the mutual obligations must be certain, and the parties must have agreed on the material and necessary details of their bargain. Lackner v. Glosser, 892 A.2d 21 (Pa. Super. 2006). Where there is no agreement as to an essential term of an alleged bargain, such as time, an “agreement” is too indefinite for a party to reasonably believe that it could be enforceable in an action at law. Id. Here, plaintiff did not present credible evidence that the parties agreed on when a purchase and sale of the Plane would be executed. Lacking this essential term, any agreement was too indefinite to be enforced.

2. Had the contract not been too indefinite for enforcement, it still would have been unenforceable under the statute of frauds, since it is allegedly a contract for the sale of goods in excess of $500.00. Plaintiff correctly cites to the statute of frauds, which states, in relevant part, that “A contract which does not satisfy the requirements of subsection (a) but which is valid in other respects, is enforceable...if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made....” 13 Pa. C.S.A. §2201(c). The defendant did not admit that a contract for sale was made. Instead, that was an issue in the within trial.

3. As a result of these conclusions of law, the court finds that plaintiff and defendant continued to be co-owners of the Plane until it was sold in 2011, and that defendant has proven that, per their ownership agreement, plaintiff owes defendant for legal fees incurred during that time.

IV. CONCLUSION

Pursuant to the findings of fact and conclusions of law set forth above, the court finds plaintiff Frank Sumamer breached his agreement with defendant Bmce L. Rothrock Sr., and that plaintiff is indebted to the defendant in the amount of $6,712.54.

AMENDED ORDER

And now, this _ day of December, 2012, upon consideration of plaintiff Frank Sumamer’s Complaint filed March 29, 2010 and defendant Bruce L. Rothroclc, Sr.’s complaint, filed October 8, 2012 and sounding as a counterclaim, after non-jury trial, and for the reasons set forth in the following opinion;

It is hereby ordered that verdict is entered in favor of defendant Bruce L. Rothrock, Sr. and against plaintiff Frank Sumamer in the amount of $6,712.54.