author: PICCIONE, J.,

text:
    Ferris v. Golf Car Supply Co.

      C.P. of Lawrence County,
    no. 10771 of 2000, C.A.

      James J. Gillespie Jr., for plaintiffs.

      MarkL. Reilly, for defendant.
    July 8, 2010
   PICCIONE, J.,

Before this court for disposition is defendant’s motion for summary judgment The current action arises out of an accident that occurred on July 13,1998 in which plaintiff Frank Ferris collided with his daughter’s vehicle while he was driving an all-terrain vehicle (ATV) that he purchased from defendant Golf Car Supply Company. Mr. Ferris suffered severe injuries as a result of the accident.

On November 3, 2000, plaintiffs Frank Ferris and his wife, Rose Ferris filed a multi-count complaint against numerous parties, including defendant. The complaint contained claims of negligence, breach of warranty and medical malpractice. The medical malpractice actions were ultimately dismissed, leaving the breach of warranty and negligence claims against defendant On December 7,2007, plaintiffs were permitted to amend their complaint by adding count of strict liability under the Restatement (Second) of Torts §402(a).

In their amended complaint, plaintiffs allege that they purchased the used ATV from defendant in July of 1997. Plaintiffs assert that defendant or the predecessor owner of the ATV had removed the seatbelts by the time plaintiffs bought the ATV. Prior to the accident, plaintiffs inquired about the absence of seatbelts and whether they could be installed in the ATV. Clarence Emeiy, an employee of defendant at the time of the purchase, advised plaintiffs that seatbelts could not be installed in the ATV. Plaintiffs allege that defendant acted negligently in removing the seatbelts from the ATV, in selling the ATV without seatbelts, and in misrepresenting that seatbelts could not be installed. Further, plaintiffs allege that the ATV was defective when sold and that defendant breached express and implied warranties.

Shortly after plaintiffs filed their amended complaint, defendant attempted to join Saxon Golf Course and Davis Cycle Sales as additional defendants. Defendant had originally acquired the ATV from Saxon, and Saxon had previously purchased the ATV from Davis. On April 16, 2008 defendant filed a complaint to join additional defendants, and Saxon and Davis subsequently filed preliminary objections in the nature of a demurrer. In an opinion dated September 8, 2008, the court determined that defendant’s negligence claims were insufficiently pled due to a failure to properly plead the existence of a legal duty owed to plaintiff by Saxon and Davis. The court granted defendant leave to amend the complaint. On September 23, 2008, defendant filed an amended complaint against Saxon and Davis on similar theories that plaintiffs brought against defendant. Defendant alleged that Saxon negligently removed the seatbelt from the ATV, negligently supplied the ATV without a seatbelt, and failed to advise defendant that the seatbelt had been removed. With respect to Davis, defendant alleged breach of warranty and strict liability under the Restatement (Second) of Torts §402(a).

Saxon filed preliminary objections to defendant’s amended complaint, and on April 24, 2009, the court sustained Saxon’s preliminary objections. In ruling on Saxon’s demurrer, the court stated:

“Defendant Golf [Car] Supply has failed to plead facts sufficient to demonstrate the standard of care and affirmative legal duty owed by additional defendant Saxon Golf Course to either the plaintiff or defendant Golf Car Supply as a matter of law. For example, plaintiff has failed to assert any facts indicating that the law either imposes a prohibition on the supplying of an ATV without a seatbelt or requires a supplier of an ATV to install a previously removed safety device, and plaintiff has not alleged facts to indicate a standard of care or duty has been otherwise created.” Ferris v. Golf Car Supply Co., no. 10771 of 2000, C.A. (Lawrence Cty. April 24, 2009).

The court granted defendant 20 days to amend, but defendant failed to make any changes to the amended complaint. Davis subsequently filed preliminary objections to the amended complaint, and on September 22, 2009, the court sustained the preliminary objections. In sustaining the demurrer on defendant’s strict liability claim, the court stated:

“Defendant has failed to plead facts sufficient to demonstrate that the at-issue ATV was defective. As explained with regard to defendant’s negligence claim against Davis, defendant has failed to assert any facts indicating that the law either imposes a prohibition on the supplying of an ATV without a seatbelt or requires a supplier of an ATV to install a previously removed safety device. Therefore, since an ATV is not required by law or otherwise to have a seatbelt installed, the at-issue ATV cannot be found to be defective because it lacks a seat-belt.” Ferris v. Golf Car Supply Co., no. 10771 of 2000, C.A. (Lawrence Cty. September 22, 2009).

In sustaining the demurrer on defendant’s breach of warranty claim, the court stated that defendant failed to show that the ATV was not fit for the ordinary purposes for which such vehicles are used. The court reiterated that there was no showing of prohibition on supplying an ATV without a seatbelt. Defendant was granted 20 days to amend, but defendant again chose not to revise the amended complaint.

Following the orders regarding Davis’ and Saxon’s preliminary objections defendant filed the instant motion for summary judgment on January 20,2010. The parties filed briefs, and plaintiff offered the affidavit of Frank Ferris. The court held a hearing on defendant’s motion for summary judgment on April 26,2010. In its motion, defendant asks whether this court should apply “the law that it has established in this case with respect to the additional defendants to the original defendant and logically grant the motion for summaiy judgment in favor of the original defendant.” Def.’s br. in supp. of mot. for summ. j., at 4. Defendant adds that this court’s April 24, 2009 order specifically references the failure of plaintiffs to demonstrate the existence of a duty to install previously removed seatbelts or of prohibition against supplying an ATV without a seatbelt. According to defendant, if the court applies the same reasoning to plaintiffs as it did to defendant, the court must dismiss plaintiffs’ negligence, strict liability, and breach of warranty claims and enter judgment in favor of defendant.

Under Pennsylvania law, the standard for summaiy judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The rule states that:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers Inc., 732 A.2d 648 650 (Pa. Super. 1999). In determining whether summary judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party.” P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999) (citing Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994)) A trial court should only grant a motion for summary judgment when the facts of record are so clear that reasonable minds could not disagree on the outcome. Basile v. H & R Block Inc., 563 Pa. 359, 364, 761 A.2d 1115, 1118 (2000) (citing Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 504, 579 A.2d 1358, 1363 (1990).

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). “[I]f a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Basile v. H & R Block Inc., 777 A.2d 95, 100 (Pa. Super. 2001). Therefore, if a plaintiff fails to present sufficient evidence of any element of the cause of action, the defendant is entitled to judgment as a matter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 101, 674 A 2d 1038, 1042 (1996).

In Count I of plaintiffs’ amended complaint, plaintiffs allege that defendant was negligent in removing the seatbelts from the ATV, in selling the ATV without seat-belts and in informing plaintiffs that seatbelts could not be installed. Plaintiffs further allege that defendant’s negligence was the direct and proximate cause of Mr. Ferris’s injuries. The basic elements of a negligence action are: (1) a duty or obligation recognized by law; (2) a subsequent breach of such duty; (3) an actual injury or damage suffered by the plaintiff; and (4) a casual connection between such injury a damage and the breach of the duty. Lux v. Gerald E. Ort Trucking Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005). Failure to establish one of the elements of negligence is valid grounds for summary judgment. McMahon v. Pleasant Valley West Association, 952 A.2d 731, 735 (Pa. Commw. 2008). “Thus, as a matter of law, no recovery can lie against a defendant absent a legal duty owed to the injured plaintiff.” Id.

As stated in previous opinions by this court, nothing has been presented by plaintiffs or defendant indicating that the law either imposes a prohibition on the supplying of an ATV without a seatbelt or requires a supplier of an ATV to install a previously removed safety device[.]” Ferris v. Golf Car Supply Co., No. 10771 of 2000, C.A. (Lawrence Cty. April 24, 2009). Similarly, the court is unable to ascertain the existence of a legal duty to ensure that ATV’s contain seatbelts or other safety devices. Because plaintiffs failed to demonstrate that defendant was legally obligated to provide seatbelts with any ATV’s sold, defendant is entitled to summary judgment with respect to plaintiffs’ negligence claims.

In Count II of the amended complaint, plaintiffs allege that defendant breached numerous express and implied warranties when it sold plaintiffs a defective ATV. According to plaintiffs, defendants assured plaintiffs that the ATV “was free from defects and was suitable for the uses for which it was intended.” Pl.’s am. compl. Plaintiffs argue that the breach of these warranties resulted in the injuries to Mr. Ferris. Based on the amended complaint, the court assumes that plaintiffs are alleging breaches of an express warranty and the implied warranty of merchantability.

The Pennsylvania Commercial Code states that express warranties are created as follows:

“(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
“(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” 13 Pa.C.S. §2313(a)(1) and (2).

In order to create an express warranty, the seller must expressly communicate the terms of the warranty to the buyer in such a manner that the buyer understands those terms and accepts them. Goodman v. PPG Industries Inc., 849 A.2d 1239 (Pa. Super. 2004). Thus, breach of an express warranty requires a showing that the seller made an express representation, the product did not perform as warranted, and injury resulted.

According to the amended complaint, defendant created an express warranty when plaintiffs were told that the ATV “was free from defects and was safe and suitable for the uses for which it was intended.” Pl.’s am. compl. Plaintiffs do not indicate who made this express statement and in what context it was made. Instead, plaintiffs merely allege that the statement was made and that an express warranty was breached when Mr. Ferris was injured. Such allegations cannot form the basis for a breach of express warranty claim. Plaintiffs do not allege that both parties ever agreed or understood that the lack of seatbelts constituted a defect or rendered the ATV unsuitable for its intended uses. Further, plaintiffs fail to allege that defendant statement formed part of the basis of the bargain. Finally, there is no evidence that the ATV failed to perform as warranted. As a result, plaintiffs failed to present evidence and allege facts supporting a claim for breach of express warranty.

Plaintiffs’ amended complaint also appears to contain a claim for breach of the implied warranty of merchantability. That warranty is governed by 13 Pa.C.S. §2314(a), which states that “a warranty that the goods be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.” 13 Pa.C.S. §2314 (a). In order for goods to be merchantable, they must be “fit for the ordinary purposes for which such goods are used.” 13 Pa.C.S. §2314(b)(3). Plaintiffs presented no evidence indicating that the ATV was not fit for the ordinary purposes for which such goods are used. Furthermore, the court stated in its opinior dated September 22, 2009 that such a claim for breach of the implied warranty of merchantability is invalid because the law neither imposes a prohibition on the supplying of an ATV without a seatbelt nor requires a supplier of an ATV to install a previously removed seatbelt. Because plaintiffs failed to allege sufficient facts to support a claim for breach of warranty, defendant is entitled to summary judgment on plaintiffs’ breach of warranty claims.

Count III of plaintiffs’ amended complaint contains a strict liability claim under Restatement (2d) of Torts §402A. Plaintiffs assert that defendant is liable under section 402A because defendant sold plaintiffs a defective ATV. The only alleged defect mentioned by plaintiffs is the lack of seatbelts. Plaintiffs claim that the ATV lacked seatbelts at the time that defendant sold it to plaintiffs. Plaintiffs do not, however allege that the lack of seatbelts caused the accident. Instead, they argue that the presence of seatbelts in the ATV would have decreased the severity of Mr. Ferris’ injury by preventing his head from striking the ATV’s roll bar. As a result, plaintiffs appear to be raising a crashworthiness claim in addition to the section 402A claim. Because the averments in the amended complaint and Mr. Ferris’ affidavit sufficiently alert defendant to the existence of such claims, the court will address both the section 402A theory and the crash-worthiness theory. See Gavula v. ARA Services Inc., 756 A 2d 17, 22 (Pa. Super. 2000) (citing Weiss v. Equibank, 313Pa. Super. 446, 460 A.2d 271 (1983) (complaint must simply apprise defendant of nature and extent of claim so that defendant has notice and may meet plaintiff’s proof at trial; plaintiff is not obliged to identify legal theory underlying complaint)).

Our Supreme Court adopted section 402A of the Restatement (2d) of Torts in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402A states:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without a substantial change in the condition in which it is sold.” Restatement (2d) of Torts, §402A (1965).

In order to prevail in a section 402A product, liability case, it must be established: “(1) that the product was defective; (2) that the defect existed when it left the hands of the defendant; and (3) that the defect caused the harm.” Davis v. Berwind Corporation, 433 Pa. Super. 342, 354, 640 A.2d 1289, 1295 (1994) (citing Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 98, 337 A.2d 893, 898 (1975)). A product is defective when it is lacking “any element necessary to make it safe for its intended use or possessing any [element] that renders it unsafe for the intended use.” Azzarello v. Black Brothers Company Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978).

The crashworthiness doctrine is a subset of section 402A products liability that often, arises in the context of cases involving motor vehicle accidents. Colville v. Crown Equipment Corporation, 809 A.2d 916, 922 (Pa. Super. 2002). The doctrine extends liability beyond the traditional limits of section 402A actions, which only creates liability where the defect was the proximate cause of the injury and also caused the accident. Id. (citing Barris v. Bob’s Drag Chutes & Safety Equipment Inc., 685 F.2d 94, 99 (3d Cir. 1982)). Manufacturers and sellers of motor vehicles are held liable under a crashworthiness products liability theory where the defect did not cause the accident but instead increased the severity of the injury. McCown v. International Harvester Company, 463 Pa. 13, 15, 342 A.2d 381, 382 (1975); Kupetz v. Deere & Company Inc., 435 Pa. Super. 16, 26, 644 A.2d 1213, 1218 (1994). A crashworthiness claim requires proof of the following three elements:

“First, the plaintiff must prove that the design of the vehicle was defective, and that at the time of design an alternative, safer, and practicable design existed that could have been incorporated instead. Second, the plaintiff must identify those injuries he or she would have received [if any] if the alternative had instead been used. Third, the plaintiff must demonstrate what injuries were attributable to the defective design.” Gaudio v. Ford Motor Company, 976 A.2d 524, 532 (Pa. Super. 2009). (internal citations omitted)

The focus in a crashworthiness case is not on whether a second collision occurred but rather how the vehicle responded to an accident without causing or enhancing injury. Colville, 809 A.2d at 924.

As indicated above, section 402A claims require proof of three elements, including a showing that the alleged defect was the cause of the accident and injury. Plaintiffs have presented no evidence and their amended complaint contains no allegations indicating that the lack of seat-belts in the ATV caused Mr. Ferris to collide with the back of his daughter’s vehicle. Therefore, plaintiffs have failed to show that the alleged defect caused the accident and, as a result, are unable to satisfy an element of a section 402A products liability cause of action. Consistent with the court’s opinion dated September 22,2009, defendant is entitled to summary judgment on plaintiffs’ section 402A strict liability claim.

While plaintiffs failed to satisfy their burden with respect to their section 402A claim, plaintiffs have presented sufficient evidence to support a crashworthiness claim that can survive summary judgment. Plaintiffs demonstrated that a defect in the ATV existed and that a safer and practicable design was available to defendant. As mentioned above, a defect exists when a product is lacking “any element necessary to make it safe for its intended use[.]” Azzarello, 480 Pa. at 559, 391 A.2d at 1027. At the time of sale, the ATV lacked seatbelts, which are necessary to ensure the safety of the driver while traveling on different types of terrain. According to the affidavit of Frank Ferris, the manual for the Kawasaki 500 Mule indicates that the ATV was manufactured with seatbelts but that the seatbelts were removed. Therefore, an alternative, safer, and practicable design could have been achieved by leaving the seatbelts in the ATV or by installing new seatbelts. Plaintiffs also identified the injuries that would have been sustained if the alternative design was used. Mr. Ferris states in his affidavit that he sustained an injury when his head hit the roll bar. According to Mr. Ferris, a seatbelt would have prevented any injury by stopping his head from striking the roll bar. Finally, plaintiffs demonstrated what injuries were attributable to the defective design. Mr Ferris stated that he injured his head on the roll bar when his unrestrained body left the seat of the ATV. As a result, the lack of a seatbelt resulted in a severe head injury to Mr. Ferris. Because plaintiffs satisfied their burden of showing that the lack of seatbelts in the ATV increased the severity of Mr. Ferris’s injury, plaintiffs are entitled to submit their crashworthiness claim to a jury.

In reaching this decision, the court does not depart from its September 22, 2009 decision sustaining Davis’ preliminary objection to Count II of defendant’s amended complaint. Davis argued that defendant failed to state a cognizable claim under section 402A, and the court properly determined that defendant failed to plead sufficient facts to establish a section 402A claim. Defendant’s amended complaint contained no indication that defendant intended to assert a crashworthiness claim. Defendant was given the opportunity to amend its amended complaint but chose not to do so. Instead, defendant used the language in this court’s prior opinions to attack plaintiffs’ amended complaint. Unlike defendant’s complaint, however, plaintiffs’ amended complaint, supported by Mr. Ferris’ affidavit, presented and supported a crashworthiness products liability cause of action. As such, the court’s position in the case at bar is not inconsistent with its September 22, 2009 decision.

Although not identified as a separate section in their amended complaint, plaintiffs also raise a claim for negligent misrepresentation. Plaintiffs allege that, after purchasing the ATV in August of 1997, Mr. Ferris made at least two inquiries as to whether the ATV contained seatbelts or if seatbelts could be installed. Clarence Emery, a sales representative for defendant, told Mr. Ferris that the ATV did not have a seat belt when it was manufactured and that a seatbelt could not be installed. Plaintiffs allege that they relied on Mr. Emery’s statements in continuing to use the ATV without installing seatbelts.

Proof of the following elements is required in order to hold a party liable for negligent misrepresentation:

“(1) a misrepresentation of a material fact;
“(2) the representor must either know of the misrepresentation, must make the misrepresentation without the knowledge as to its truth or falsity or must make the representation under circumstances in which he ought to have known of its falsity;
“(3) the representor must intend the representation to induce another to act on it; and
“(4) injury must result to the party acting in justifiable reliance on the misrepresentation.” Halper v. Jewish Family & Children’s Service of Greater Philadelphia, 963 A.2d 1282 1286 (Pa. 2009) (citing Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994)).

To commit negligent misrepresentation, “the speaker need not know his or her words are untrue, but must have failed to make reasonable investigation of the truth of those words.” Gibbs, 538 Pa. at 210, 647 A.2d at 890. Like any negligence action, a duty must be owed by one party to the other. Bortz v. Noon, 556 Pa. 489, 501, 729 A.2d 555, 561 (1999). Determining whether a duty exists depends on several factors, including: “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.” Bilt-Rite Contractors Inc. v. The Architectural Studio, 581 Pa. 454, 472, 866 A.2d 270, 281 (2005) (citing Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000)).

After an examination of the Althaus factors, the court finds that defendant owed plaintiffs a duty to ensure that material statements regarding the ATV made by its employees were true. Further, plaintiffs have presented sufficient evidence to support a claim of negligent misrepresentation. According to the manual for the Kawasaki Mule 500, Mr. Emery’s statement that the ATV was manufactured without a seatbelt and that seatbelts could not be installed constituted a misstatement of material fact. An examination of the manual would have alerted Mr. Emery to the fact that his statement was false. In response to Mr. Emery’s statement, Mr. Ferris neglected to return the ATV or have seatbelts installed on it. Instead, Mr. Ferris drove the ATV without seatbelts and sustained a severe head injury in a subsequent accident. Therefore, plaintiffs sufficiently state a cause of action for negligent misrepresentation and are entitled to have their case submitted to a jury.

Because the court is denying, in part, defendant’s motion, summary judgment is not appropriate as to plaintiffs’ claim for loss of consortium.

ORDER

And now, July 8, 2010, this court having held oral argument on April 26,2010 regarding defendant’s motion for summary judgment, with James J. Gillespie Jr., Esquire, appearing and representing the plaintiffs, and Mark L. Reilly, Esquire, appearing and representing the defendant, and after a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged, and decreed as follows:

(1) The defendant’s motion for summary judgment is granted in part and denied in part as follows:

(a) Summary judgment is granted on plaintiffs’ negligence claim.

(b) Summary judgment is granted on plaintiffs’ claim for breach of warranty.

(c) Summary judgment is granted on plaintiffs’ section 402A strict liability claim.

(d) Summary judgment is denied on plaintiffs’ crash-worthiness strict liability claim.

(e) Summary judgment is denied on plaintiffs’ negligent misrepresentation claim.

(f) Summary judgment is denied on plaintiffs’ loss of consortium claim.

(2) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record as contained in the court’s file.

      . The ATV at issue is a Kawasaki Mule 500.


source: Caselaw Access Project

author: LUNSFORD, J,

license: Public Domain

text:
    In re Estate of Jodon

      C.P. of Centre County,
    no. 2008-1941.

      Bernard F. Contorna, for plaintiff.

      Steven S. Hurvitz and Allen P. Neely, for defendants.
    July 20, 2010-
   LUNSFORD, J,

BACKGROUND

This action arises out of a sales agreement whereby Larry B. Jodon and Vicki L. Jodon conveyed to defendant, Dana/Glass Properties Inc., real estate located in Benner Township, Centre County. On or about May 14, 2004, the parties signed an agreement to sell lots four, five, six, seven and eight within a subdivision known as “Victorian Village.” Plaintiff initially signed an agreement to sell the lots to Dana/Glass Properties Inc., with this agreement then being assigned to Amberleigh L.P., a wholly owned subsidiary of Dana/Glass Properties Inc. The agreement noted that defendant intended to revise a subdivision plan and create “up to two hundred and fifty residential lots for townhouses and other single family residences.” Plaintiff was a Pennsylvania licensed real estate salesperson previously associated with Kissinger, Bigatel & Brower; a licensed auctioneer and the owner of property in Spring and Benner Townships. Plaintiff’s claims are based on allegations that defendant breached subparagraph 9(g) of the agreement which states:

“[a]t settlement, buyer shall enter into an exclusive right to sell listing agreement with Kissinger, Bigatel & Brower, or such other broker which Larry E. Jodon may be affiliated, provided the same is offered, for the sale and marketing of all residences intended to be constructed upon the lots and thereupon sold, provided that the terms of such listing agreement shall (i) assure that no commission is payable by buyer upon transfers of residential building lots to Berks Construction Co., or another builder who intends to construct a residence thereon and then to sell or transfer to its customer the building, lot and home (it being understood that a commission will be payable when the home and lot are sold to the end customer), (ii) include performance standards by the broker reasonably acceptable to buyer, broker and Berks Construction Co. (or other home builder with which buyer may be affiliated by contract), (iii) provide for buyers or buyer’s affiliated builder to approve, in advance, all marketing materials, programs and efforts, and (iv) contain such other terms as buyer, seller and broker may reasonably require. It is the intent of all parties that Larry E. Jodon be the listing agent for the sale of all residences intended to be constructed on the lots so long are the terms of the listing agreement are as described.” (Exhibit A, plaintiff’s amended complaint.)

Plaintiff claims defendants paid a smaller up-front purchase price, based upon the promise of an exclusive listing agreement which would yield plaintiff real estate commissions in the future. Plaintiff alleges that an exclusive listing agreement was never executed and instead Dana/Glass Properties Inc. contracted with defendant Berks Construction Co. Inc. to partner and develop Victorian Village. Plaintiff alleges breach of contract, intentional interference with contractual relations, fraudulent misrepresentation and non-disclosure, and detrimental reliance. Defendants filed preliminary objections to plaintiff’s original complaint, on or about March 5,2010. Plaintiff responded by filing an amended complaint, on or about March 26, 2010. Defendant has now filed preliminary objections to plaintiff’s amended complaint.

DISCUSSION

Defendants filed preliminary objections in the nature of demurrer regarding plaintiff’s amended complaint. Preliminary objections should be sustained in cases which are clear and free from doubt. Rivello v. New Jersey Automobile Full Insurance Underwriting Association, 432 Pa. Super. 336, 638 A.2d 253 (1994). In deciding preliminaiy obj ections, the court must consider the evidence in a light most favorable to the non-moving party. Id. In considering preliminaiy objections to a complaint in the nature of demurrer, all well-pleaded material facts set forth in the complaint are admitted as true as well as all inferences reasonably deducible therefrom, but not the pleader’s conclusions of law. Clevenstein v. Rizzuto, 439 Pa. 397, 400-401, 266 A.2d 623, 624-625 (1970). In determining whether or not a demurrer should be sustained, two standards must be borne in mind: (1) upon the facts averred, does the law say with certainty that no recoveiy is permitted; and, (2) “where a doubt exists as to whether a demurrer should be sustained, [it] should be resolved in favor of overruling it.” Id. The question must be decided solely on the basis of the pleadings, and a demurrer should be overruled unless it is clear from the face of the complaint that the claims cannot be sustained. Mellon Bank, N.A. v. Fabinyi, 437 Pa. Super. 559, 567-68, 650 A.2d 895, 899 (1994). In case of any doubt, a demurrer should be overruled. Id.

In the present matter, defendants essentially argue that plaintiff lacks standing to sue for unpaid commissions. Defendants argue plaintiff is unable recover because it would be in violation of the Real Estate Licensing and Registration Act, 63 P.S. §455.101 et seq. (the Act) because Mr. Jodon is not a real estate broker. The Act defines a “broker” as:

“Any person who, for another and for a fee, commission or other valuable consideration: (1) negotiates with or aids any person in locating or obtaining purchase, lease or an acquisition of interest in any real estate; (2) negotiates the listing, sale purchase, exchange lease, time share and similarly designated interests, financing or option for any real estate; (3) manages any real estate; (4) represents himself to be areal estate consultant, counselor, agent or finder; (5) undertakes to promote the sale, exchange, purchase, or rental of real estate: Provided, however, that this provision shall not include any person whose main business is that of advertising promotion or public relations; (5.1) undertakes to perform a comparative market analysis; or (6) attempts to perform any of the above actions.” 63 P.S. §455.201.

The Act lists “prohibited acts” which may result in the state real estate commission’s suspending or revoking licenses or assessing fines. Eill v. Tegler, 722 A.2d 200 (Pa. Super. 1998). Defendant points to 63 P.S. §455.604(12) of the prohibited acts which forbids, “accepting a commission or any valuable consideration by a sales person or associate broker for the performance of any acts specified in this act from any person, except the licensed real estate broker with whom he is affiliated.” Defendants argue subsection 12 of the Act allows only a real estate broker to accept a commission or any valuable consideration for a sales agreement and prohibits plaintiff from suing a third party for an unpaid commission. Defendants further argue, “if a licensed salesperson or any unlicensed person sues for a commission owed, the underlying agreement or contract may not be enforced in his favor.” Kreider v. Kleinfelter, 314 Pa. Super. 571, 461 A.2d 304 (1983).

However, section 455.304 of the Act lists a series of exemptions including: “An owner of real estate with respect to property owned or leased by such owner. In the case of a partnership or corporation, this exclusion shall not extend to more than five of its partners or officers, respectively, nor to other partnership or corporation personnel or employees.” 63 P.S. §455.304(2). Because plaintiff was owner of the real estate referenced in the sales agreement, plaintiff has sufficiently pled that he is exempt from the Act and his claims are not barred by subsection 12 in order to survive demurrer. In the cases cited by plaintiff, Eill and Kreider, the plaintiffs were not in such position.

Plaintiff correctly avers that the complaint does not arise out of the services of a real estate agent who claims a commission due and owing from the sale of real estate. Rather, the plaintiff’s claim is that he was a seller of property who negotiated in good faith an agreement for the sale. The complaint alleges that as a result of the promise to enter into a future agreement, defendants were able to negotiate a smaller up-front purchase price. Plaintiff’s damages stem from the alleged breach of this contract and the damages do not reflect a suit for recovery of commission for real estate services performed, but rather, recovery of damages resulting from the breach of the sales agreement and that the defendants entered into business transactions that breached previous agreements. Upon the facts averred, the law does not say with certainty that recovery is not permitted. Therefore, defendants’preliminary objections are overruled.

According the following order is entered:

ORDER

And now, July 20, 2010, upon consideration of defendants’ preliminary objections to plaintiff’s amended complaint and the briefs submitted by the parties regarding the same, the preliminary objections are hereby overruled.


author: MASSIAH-JACKSON, J,

text:
    Brown v. Save-a-Lot

      MarkF. Greenfield, for plaintiff.

      Daniel D. Krebbs and James W. Gicking, for defendants.
    June 29, 2010—
   MASSIAH-JACKSON, J,

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 1,2008, it was pouring rain all morning. Mrs. Diane Brown, age 58, arrived at Save-A-Lot supermarket in Folcroft, Pennsylvania, after 12:30 p.m. N.T. 57-58. She went into the store alone while her husband, Clement Brown, parked the car. N.T. 59.

When Mrs. Brown entered the vestibule area of the store, she wiped her feet on the mat then proceeded toward the shopping carts. She slipped on the wet floor and fell very hard on her buttocks. N.T. 60-62. Mrs. Brown thought she had broken her tailbone due to the severe pain. She had put her left hand out to break her fall and her hand started to swell. She felt pains in her tailbone, back and left arm going into her shoulder. N.T. 63-65. Mrs. Brown is left-handed. N.T. 70. She became nauseous and was not able to stand.

The store personnel called an ambulance and she was taken to Taylor Hospital. N.T. 71-75. Mrs. Brown treated with Delaware County Pain Management for eight months, however, she continues to suffer continuing pain, stiffness and swelling, in her hips, back and arm. N.T. 77-89.

Plaintiff Brown commenced this litigation against Save-A-Lot and SuperValu Inc. in July 2008. After two days of trial, in November 2009, a jury awarded Diane Brown $100,000 for non-economic damages. (All references to the trial transcript are November 16, 2009, unless otherwise indicated.)

After considering the motions for post-trial relief filed by defendant Save-A-Lot, and for the reasons which follow, the motions for new trial and/or judgment nov are denied.

II. LEGAL DISCUSSION

The jury had the opportunity to see extensive video surveillance tapes of the vestibule and lobby area of the store. The Save-A-Lot tape was played several times by counsel and was referenced by all witnesses and counsel throughout the trial. The jury had the opportunity to observe one of the Save-A-Lot employees, Ms. Daniels, slip and fall on the wet vestibule floor shortly before plaintiff Brown fell, N.T. 162-65, 172-73. Ms. Daniels fell while the store manager was mopping the vestibule area. N.T. 159-63.

A. Save-A-Lot Has Failed To Present Sufficient Grounds for Judgment n.o.v.

Save-A-Lot asserts that it is entitled to judgment n.o.v. because the defendant had no actual or constructive notice that the vestibule floor was wet on February 1, 2008. Defendant’s post-trial brief at page 15:

“Here, no evidence was presented that defendant Save-A-Lot had actual notice of the condition of water on the floor at the entrance to its facility. In fact, only minutes before plaintiff’s accident, store employees had placed an additional mat in the vestibule to the store and had mopped the area. The uncontradicted evidence thus presented was that Save-A-Lot not only conducted a careful survey only minutes before plaintiff’s fall, but took eveiy reasonable precaution to protect patrons to the store.”

The record does not support this claim.

There are only two bases upon which a court may enter judgment n.o.v. The first is when the movant is entitled to judgment as a matter of law. The second is when the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Quinby v. Plumsteadville Family Practice Inc., 589 Pa. 183, 204, 907 A.2d 1061, 1074 (2006); Moure v. Raeuchle, 529 Pa. 394, 401, 604 A.2d 1003, 1007 (1972). Considering only the evidence which supports the verdict, the court must give the verdict winner the benefit of all doubt and of every fact and inference deducible from the evidence. Griffin v. University of Pittsburgh Medical Center — Braddock Hospital, 950 A.2d 996, 999 (Pa. Super. 2008); Robertson v. Atlantic Richfield, 371 Pa. Super. 49, 59, 537 A.2d 814. 819 (1987).

In this case, judgment n.o.v. is not appropriate. The jury heard the store manager testify that it was raining hard the entire morning of February 1, 2008. N.T. 155. They observed the video of Ms. Daniels bringing a mat into the vestibule area at 12:43 p.m. N.T. 159-62. The jury watched Ms. Daniels fall on the floor. N.T. 163. Plaintiff Brown entered the store at 12:48 p.m. when she fell and was injured. N.T. 172.

Clearly the evidence presented demonstrated that Save-A-Lot knew of the harmful/dangerous conditions due to the rain. Mr. Edwards testified that he worked over and above the store “protocol” to engage in dry mopping, to place a caution cone in the area, and to add at least two 15-foot mats in the vestibule. N.T. 158-73, 185-87, 195-96. Restatement (Second) of Torts, §343A; Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 647 A.2d 573 (1994) (reviewing the duty of care of a store owner to a business invitee). The evidence of actual notice was sufficient to preclude entry of judgment n.o.v.

B. Save-A-Lot Has Failed To Present Sufficient Grounds for a New Trial

Save-A-Lot asserts that it is entitled to a new trial because the jury watched surveillance video and saw the store employee, Ms. Daniels, put a third 15-foot mat on the vestibule floor after plaintiff Brown fell. Defendant’s post-trial brief, pages 16-21.

In order to constitute reversible error, an evidentiary ruling must be not only erroneous, but also harmful to the complaining litigant, e.g. Gunn v. Grossman, 748 A2d 1235 (Pa. Super. 2000); Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa. Super. 1997), holding that a new trial is warranted when there is a palpable abuse of discretion or an error of law which controls the outcome of the case. Under the circumstances presented here, a new trial is not warranted.

Initially, it must be noted that defendant Save-A-Lot never filed a pretrial motion in limine to limit or exclude the store surveillance video. Motions in limine are a procedure to obtain rulings on the admissibility of evidence prior to trial and before evidence has been offered or brought to the attention of the jury, e.g. Rachlin v. Edmison, 813 A.2d 862 (Pa. Super. 2002); Common wealth v. Noll, 443 Pa. Super. 602, 605, 662 A.2d 1123, 1125 (1995); Packet and Poulin, Pennsylvania Evidence, §103-4, third ed. (West 2007). When Save-A-Lot failed to bring this portion of its own store video to the trial court’s attention in a timely and specific manner prior to trial, the supermarket lost its opportunity to obtain any preventative measures. The surveillance tape was provided to the plaintiff by the supermarket, thus, Save-A-Lot had full knowledge of the contents, yet failed to act.

With this in mind, the trial court must engage in a two-part analysis when considering if a new trial should be ordered: First, was an evidentiary mistake made; and, second, if so, was the mistake prejudicial to the complaining litigant. American Future Systems v. Better Business Bureau, 872 A.2d 1202, 1212 (Pa. Super. 2005); Bey v. Sacks, 789 A.2d 232, 237 (Pa. Super. 2001). The record does not reveal an evidentiary mistake.

Defendant Save-A-Lot suggests that when the jury observed defendants employee put the third mat in the vestibule, the evidence of a subsequent remedial measure was improper. It is true that Rule 407 of the Pennsylvania Rules of Evidence generally renders remedial measures not admissible. Rule 407, however, has recognized exceptions:

“This rule does not require the exclusion of evidence of subsequent measures when offered for impeachment, or to prove other matters if controverted, such as ownership, control, or feasibility of precautionaiy measures.”

Here, the evidence was permitted because it addressed issues of feasibility and impeachment.

• Impeachment — Prior to trial at his deposition, the store manager testified that the entire area of the vestibule was covered with floor mats, except for a three-inch gap. N.T. 30. Then during our trial, Mr. Edwards testified, “there was always a mat leading towards the shopping carts at the store.” N.T. 30. Both of these statements were challenged by the plaintiff. The video was shown to demonstrate to the jury the wide areas of the vestibule where no mats had been placed. Mr. Edwards was impeached by use of Save-A-Lot’s surveillance tape. See Smalls v. Pittsburgh-Coming Corporation, 843 A.2d 410 (Pa. Super. 2004), where remedial measures are offered to impeach a witness claim, they are admissible.

• Feasibility — Mr. Edwards repeatedly stated that his efforts to keep the vestibule safe during the rainy weather “went beyond protocol.” N.T. 155. Fie stated that it was not possible to cover the entire area with mats. “It’s nothing more that could’ve been done.” N.T. 158. He stated that the store did everything reasonable to prevent the accident. He explained to the jury that bringing out the additional mat sooner would not have made any difference, because, “we already went beyond our call of duty.” N.T. 185. Mr. Edwards stated that the two mats were sufficient to cover the area. N.T. 186. Phatak v. United Chair Company, 756 A.2d 690 (Pa. Super. 2000); Mendralla v. Weaver Corporation, 703 A.2d 480 (Pa. Super. 1997), where both cases discussed that feasibility is a permissible exception where safety has been challenged.

Finally, even assuming arguendo that viewing the video of the third mat was erroneous, this defendant has not explained how the supermarket was harmed. The jury watched as a supermarket employee slipped on the same vestibule floor and fell on her buttocks in the same manner as Diane Brown, the plaintiff. That dramatic portion of the surveillance video was not challenged by Save-A-Lot.

C. The Verdict Award Does Not Shock This Court’s Conscience

Save-A-Lot contends that the verdict award is excessive. This court does not agree with the contention. The decision whether or not to grant remittitur lies within the discretion of a trial court. Boteck v. Mine Safety Appliance Corporation, 531 Pa. 160, 611 A.2d 1174 (1992) and cases cited at 165, 611 A.2d at 1176; Harding v. Consolidated Rail Corporation, 423 Pa. Super. 208, 225, 620 A.2d 1185, 1193 (1993). Ajury verdict, if supported by the evidence, will be permitted to stand when there is nothing to suggest that the jury was guided by partiality, prejudice, mistake or corruption. Neither a new trial nor remittitur is appropriate. Carminati v. Philadelphia Transportation Company, 405 Pa. 500, 176 A.2d 440 (1962); Bey v. Sacks, 789 A.2d 232 (Pa. Super. 2001).

The Superior Court in Prather v. H-K Corporation, 282 Pa. Super. 556, 423 A.2d 385 (1980), stated at 565, 423 A.2d at 389:

“The issue of the amount to be awarded an injured person for pain and suffering and loss or impairment of earning power, both past and prospective is primarily a jury question____It is the duty of the trial court to enforce the jury’s verdict and to interfere only ‘when the circumstances cry for judicial interference’. . . [Moreover, a] substantial verdict, if supported by the evidence, must be permitted to stand and will not be set aside when there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption.” (citations omitted)

Similarly, the Pennsylvania Supreme Court stated in Carminati v. Philadelphia Transportation Company, 405 Pa. 500, 176 A.2d 440 (1962), that judicial reduction of a jury award is appropriate only when the award is plainly excessive and exorbitant.

In Kemp v. Philadelphia Transportation Company, 239 Pa. Super. 379, 361 A.2d 362 (1976), the Superior Court enumerated several factors to be considered in determining the reasonableness of the jury verdict: (1) The severity of the injuries; (2) Whether the injury is demonstrated by physical evidence; (3) Whether the injury will affect the plaintiff permanently; (4) Plaintiff’s ability to continue employment; and (5) The disparity between expenses and verdict amount. See also, Harding v. Consolidated Rail Corporation, 423 Pa. Super. 208, 620 A.2d 1185 (1993); Wagner by Wagner v. York Hospital, 415 Pa. Super. 1, 608 A.2d 496 (1992).

The jury observed Mrs. Brown as she described her injuries and treatment. She fell so hard that she thought she had broken her tailbone. N.T. 63-65. Her feet went out in front of her. Right after she fell, her left hand started to swell. She had pain in her tailbone, back and left arm going into her shoulder. N.T. 63-65. She had two MRIs. Mrs. Brown was treated for eight months at Delaware County Pain Management, receiving chiropractic care, massage, and aqua therapy. N.T. 74-75. She also received medications from other physicians. N.T. 75. The treatment was helpful, however, her injuries have not resolved. N.T. 75-76. Mrs. Brown continues to suffer hip pain, shoulder pain and back pain going down into her hip and legs. N.T. 77. Further, in inclement weather, Mrs. Brown has swelling in her hip. N.T. 82. She sometimes uses a cane and has constant problems trying to sleep. N.T. 82-84. Mrs. Brown’s medical hills totaled nearly $16,000.

Dr. Guagliardo, an orthopedic surgeon, opined that Mrs. Brown’s prognosis was guarded. Video, N.T. 28. According to the physician, the fact that the plaintiff was still in pain one year after the accident indicated that Mrs. Brown may need surgery on her shoulder and her back in the future. Video, N.T. 29. The surgeon explained to the jury that two MRI scans revealed swelling and inflammation in the plaintiffs left shoulder and L4-45 and L5-S1 disc herniations in her lower back. Video, N.T. 21-24. Dr. Guagliardo performed a physical examination of Mrs. Brown in March, 2009. He concluded that she has limited flexion, rotation and side bending of her back. He also determined tenderness and significant back pain. Video, N.T. 25-26. The diagnosis of plaintiff’s orthopedic surgeon expert was muscle strain in her neck, mid-back and low back, myofacial injury to the facial coverings of her muscles, tendinitis and impingement syndrome in her shoulder, herniated discs, left cervical radiculopathy and lumbar radiculopathy. Video, N.T. 24-26. He testified that those injuries resulted from the fall on February 1, 2008. According to Dr. Guagliardo, the accident aggravated prior herniated discs injuries that occurred in 1988. Video, N.T. 28. The jury also saw the video testimony of Dr. Joseph Bernstein, the defendant’s doctor. He agreed that the medical imaging studies show degenerative changes.

The injuries impact Mrs. Brown’s daily life. She feels that she is limited in the activities that she can do independently. Mrs. Brown is dependent on her husband for chores such as grocery shopping, laundry and cleaning. N.T. 81, 85. The plaintiff is unable to participate in activities that she previously enjoyed, such as bowling, entertaining at home, shopping with friends and physical activities with her grandchildren. N.T. 85-86,88-89. The plaintiff testified that she is embarrassed about the smells of ointments and patches that she uses to help with her pain. N.T. 87.

When appraising all of the evidence and the many items of damages that the jury was required to consider, this court, which sits an as experienced civil trial court and which had the benefit of seeing and hearing all of the evidence, has no hesitancy in concluding that the jury’s verdict was fair, thoughtful and reasonable. See Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367 (1994). The request for remittitur is denied.

III. CONCLUSION

For all of the reasons set forth above, defendant Save-A-Lot’s motions for new trial and/or judgment n.o.v. are denied. Judgment is entered in favor of Diane Brown in the amount of $100,000.

ORDER

And now, June 29, 2010, after consideration of the defendant’s post-trial motions and plaintiff’s response thereto, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that the motions for new trial and/or judgment n.o.v. are denied, and judgment is entered in favor of Diane Brown in the amount of $100,000 and against Moran Foods Inc. d/b/a Save-A-Lot and SuperValu Inc.


author: VICAN, PJ,

text:
    DeCaro v. Pocono Mountain School District
    C.P. of Monroe County,
    no. 5561 Civil 2010.

      Brett J. Riegel, for plaintiffs.

      Ellen Shurdack, for defendants.
    June 18, 2010-
   VICAN, PJ,

FINDINGS OF FACT

(1) Michael DeCaro, Zachary Gocek, and Daniel Snyder (plaintiffs) bring this action for a preliminary injunction based on a decision rendered by the Pocono Mountain School District (defendant) to prohibit plaintiffs from participating in the June 18,2010 graduation ceremony.

(2) Defendant informed plaintiffs that they were not permitted to attend the graduation ceremony due to their presence at a June 14, 2010 party in Wayne County at which underage individuals consumed alcohol and an act of vandalism was committed. The party occurred after academic classes had concluded for the year.

(3) Defendant became aware of plaintiffs’ presence at the party when two of the plaintiffs failed to attend a graduation ceremony rehearsal on June 15, 2010. The third plaintiff arrived at the rehearsal late.

(4) At the preliminary injunction hearing, each plaintiff took the stand and testified that he was not involved in the vandalism, but was detained and questioned by the Pennsylvania State Police with regards to the incident. Plaintiffs were late to/absent from the June 15, 2010 graduation rehearsal because they were concurrently cooperating with the police in Wayne County.

(5) No charges have been filed against plaintiffs.

(6) Defendant notified plaintiffs that they were precluded from attending the graduation ceremony orally. No written notice was provided.

(7) Defendant’s basis for prohibiting plaintiffs from attending graduation is violation of the following school district policies:

(a) Rule 122.1, page 4, paragraph 9 of the school district’s code of conduct for athletics and extracurricular activities: “Students must not attend an event where drugs or alcohol are being distributed to minors.”

(b) Policy 122, 123, page 3: “This policy shall also apply to student conduct that occurs off school property and would violate the code of conduct if: (1) There is a nexus between the proximity or timing of the conduct in relation to the student’s attendance at school or school-sponsored events ... (4) The conduct has a direct nexus to attendance at school or a school-sponsored activity, such as an agreement to complete a transaction outside of school that would violate the code of conduct. (5) The conduct involves the theft or vandalism of school property.”

(8) Plaintiffs argue that defendant’s application of these policies is an abuse of its discretion. In support of this argument, plaintiffs called Pocono Mountain School District Superintendant, Dwight Pfennig, who testified that there are students who committed acts of vandalism on school property but will be allowed to participate in the graduation ceremony if they repair the vandalism.

(9) Policy 233, page 3 provides that in the case of vandalism: “[TJhese offenses will be referred to the proper law enforcement authorities for criminal prosecution.”

(10) None of the individuals involved in the school property vandalism have been referred to law enforcement and all are still permitted to participate in the graduation ceremony.

(11) Plaintiffs argue that in failing to apply school policies uniformly to plaintiffs and the school vandals alike, defendant has applied its policies arbitrarily and capriciously.

(12) Relevant case law provides:

(a) “[A] graduation ceremony is not within the scope of any property right which might exist in that respect, for the reason that commencement ceremonies are only symbolic of the educational end result, not an essential component of it.” Mifflin County School District v. Stewart, 94 Pa. Commw. 313, 315, 503 A.2d 1012, 1013 (1986).

(b) “The law is clear that in Pennsylvania, local school boards have broad discretion in determining school disciplinary policies. . . . [T]he courts are not prone to interfere unless it is apparent that the school board’s actions are arbitrary, capricious, and prejudicial to the public interest.” Flynn-Scarcella v. Pocono Mountain School District, 745 A.2d 117, 120 (Pa. Commw. 2000). (citations omitted)

(c) Our Supreme Court has defined “arbitrary” as “conduct. . . based on random or convenient selection or choice rather than on reason or nature.” Thunberg v. Strause, 545 Pa. 607, 615, 682 A.2d 295, 299 (1996). Capricious has been variously defined as erratic, flighty, or unpredictable.

(13) Here, defendant has applied its policies stringently to plaintiffs, but failed to use the same rigidity with the school vandals. As a result, it is apparent that defendant’s actions are arbitrary and capricious.

(14) While our intention is not to thwart school disciplinary policies, we base our decision on the legal requirement that schools do not apply such policies arbitrarily.

ORDER

And now, June 18,2010, plaintiffs’ preliminary injunction is granted; plaintiffs are permitted to attend and participate in the June 18, 2010 graduation ceremony.


author: MILLER, J,

text:
    Rosenau v. East Stroudsburg School District

      C.P. of Monroe County,
    no. 2619 Civil 2010.

      James J. Conaboy, for plaintiff.

      F. Patricik Heffron, for defendants.
    June 29, 2010
   MILLER, J,

On April 18, 2008, plaintiff Jane Rosenau, a pediatric nurse, was accompanying a student on a school bus transporting challenged students within the East Stroudsburg School District. She was kicked by a student with a known history of aggressive behavior and suffered injuries to her knee. Plaintiff sued the school district for economic and noneconomic damages on March 26, 2010. In response, defendant, East Stroudsburg School District filed preliminary objections in the nature of a demurrer.

When considering preliminary objections in the nature of a demurrer, this court must accept as true all well-pleaded material facts in the complaint, as well as inferences reasonably deducible therefrom. Webb Manufacturing Company v. Sinoff 449 Pa. Super. 534, 674 A.2d 723 (1996); This court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Title Insurance Company v. Deshler, 661 A.2d 481 (Pa. Commw. 1995). A demurrer may be sustained only if it is clear on the face of the pleading that the law will not permit the recovery sought. Morgan v. McPhail, 449 Pa. Super. 71, 672 A.2d 1359 (1996). If there is any doubt, it should be resolved by the overruling of the demurrer. Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

Preliminary objections are a proper vehicle for raising the defense of sovereign immunity where, as here, the defense is apparent on the face of the pleading under attack. Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). In Petula v. Mellody, 158 Pa. Commw. 212, 631 A.2d 762 (1993), our Commonwealth court held that school districts are considered as a local agency for purposes of governmental immunity. As such, defendant is within the category of defendants authorized to raise the defense of sovereign immunity. Poliskiewicz v. East Stroudsburg University, 113 Pa. Commw. 13, 536 A.2d 472 (1988). Because defendant is entitled to sovereign immunity, plaintiff can only maintain her action sounding in negligence if defendant’s actions fall within an exception enumerated in the statute. Counsel for plaintiff argues that the motor vehicle exception to sovereign immunity authorized plaintiff’s cause of action.

The Political Subdivision Tort Claims Act provides in pertinent part as follows:

“Governmental immunity generally
“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541.

However, the immunity of a school district is not absolute. There are eight enumerated exceptions to a school district’s claim of immunity from suit including the following:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency, ... 42 Pa.C.S. §8542(b)(l).

Our Supreme Court in Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987) held that our legislature clearly intended to insulate political subdivisions from tort claims and that intention requires our courts to narrowly apply the exception to governmental immunity, including the motor vehicle exception.

Here, plaintiff does not allege that the actual operation of the bus caused her injuries. Rather, her complaint alleges that defendant was negligent when it allowed and permitted an aggressive student to ride its bus without taking proper actions to secure the bus and protect those riding the bus and, furthermore, that defendant failed to adequately warn or give notice to her of the dangerous condition posed by one of its challenged students by allowing an aggressive student without proper restraints to be on the bus.

In narrowly construing the exceptions under section 8542, we cannot find that plaintiff has pled facts to place this matter within the vehicle liability exception. It is incumbent upon the plaintiff to establish her case falls within one of the enumerated exceptions. Miller v. Erie Metropolitan Transit Authority, 152 Pa. Commw. 64, 618 A.2d 1095 (1992). Even excepting as true her allegations, they do not prove that the actions complained of constitute the operation of any motor vehicle.

At oral argument, plaintiff argued that defendant has not set forth any case law precedent to support their position. However, we note that plaintiff has not given us any case law to support hers.

The court’s own research identified two cases, albeit old ones, which are instructive. In Kesman v. School District of Fallowfield Township, 345 Pa. 457, 29 A.2d 17 (1942), our Supreme Court affirmed the school district’s demur where plaintiffs alleged that their son was injured by the negligent operation of defendant’s school bus while a passenger in it on is way to school. Our Supreme Court held that it has been repeatedly held that school districts are not liable for such negligence.

Also, while not binding but instructive, the Bucks County Court of Common Pleas in Quaste v. Hayes, 36 D.&C.3d 308 (1985) granted the school district’s motion for summary judgment where the parents of a school student sued the school district after he was injured in a fight on a school bus with another student. In their complaint, the parents alleged that the bus driver, as an employee of the school district, failed to maintain order and decorum on the bus thereby permitting their son to be injured in the altercation. The court found that the only issue for resolution was whether the statute, Political Subdivision Tort Claims Act, afforded governmental immunity to the school district. The court found that it did and granted summary judgment.

Accordingly, we enter the following order:

ORDER

And now, June 29, 2010, upon consideration of Defendant East Stroudsburg School District’s preliminary objections in the nature of a demurrer, it is ordered that defendant’s preliminary objections are sustained and plaintiff’s complaint is dismissed with prejudice.


author: Di VITO, J.,

text:
    Philadelphia Parking Authority v. Transport Workers’ Union of America, Local 700, AFL-CIO

      Michael Casey, for plaintiff.

      Thomas R. Yorko, for defendant.
    August 10, 2010-
   Di VITO, J.,

PROCEDURAL HISTORY

On March 5, 2009, the Philadelphia Parking Authority (authority) filed a petition to vacate arbitration award with the court of common pleas. The petition sought to vacate the February 3, 2009 arbitration award made pursuant to the collective bargaining agreement (CBA) between the authority and the Transport Workers Union of America, Local 700 AFL-CIO (union) on February 8, 2010, this court denied and dismissed the authority’s petition. The authority subsequently filed this appeal.

FACTUAL HISTORY

Corinthian Rivers was employed by the authority, working as a cashier at an off-street parking facility located at 8th Street and Chestnut Street in Philadelphia, and was represented by the union under the CBA. On June 3, 2008, Rivers received a $95.75 gratuity from a customer, which she split with her fellow authority cashier Clara Simmons. An authority supervisor witnessed the two cashiers splitting the gratuity, which triggered an audit and investigation by the authority. Rivers was suspended on June 9, 2008, and on June 13, 2008, the authority terminated her employment for “just cause” following a grievance hearing in accordance with the CBA.

On July 1,2008, the union filed a demand for arbitration with the American Arbitration Association. The arbitration hearing took place on December 2,2008. On February 3,2009, the arbitrator’s opinion was sent to the authority and the union, upholding the union’s grievance against the authority and ordering the authority to reinstate Rivers to her former position, and to make her whole without losing any seniority rights or benefits. The arbitrator concluded that the authority had not made any showing that Rivers had received the gratuity in exchange for some act or omission on her part, and thus had not violated the authority’s no-tipping policy.

DISCUSSION

Grievance arbitration is statutory and mandatory for Pennsylvania public employers and unions under the Public Employe Relations Act, 43 P.S. §1101.101 etseq. (PERA). In Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA/NEA, 595 Pa. 648, 939 A.2d 855 (2007), the Pennsylvania Supreme Court addressed the standard of judicial review of a grievance arbitration award under PERA, and affirmed the “essence test” as the proper standard of review. The court also carved out a narrow exception to the essence test, by which the arbitrator’s decision could be vacated if its ruling violates the public policy of the Commonwealth. Id. at 665, 939 A.2d at 865. The arbitration award in the case at hand satisfies the essence test and does not violate public policy, and thus should not be vacated by any reviewing court.

The essence test involves a two-prong inquiry:

“First, the court shall determine if the issue as properly defined is within the terms of the collective bargaining agreement. Second, if the issue is embraced by the agreement, and thus, appropriately before the arbitrator, the arbitrator’s award will be upheld if the arbitrator’s interpretation can rationally be derived from the collective bargaining agreement.” Westmoreland, at 661, 939 A.2d at 863. (citation omitted)

The first prong is a question of the arbitrator’s jurisdiction over the matter, and is satisfied if the issue at the center of the grievance arbitration falls within the terms of the CBA. PERA 43 P.S. §1101.903 (“The arbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory”). The second prong requires satisfaction of the first prong plus a rational relationship between the arbitrator’s award and the “essence” of the CBA.

Because the General Assembly has codified its intent that decisions made by arbitrators should be final and binding upon the parties, judicial deference to arbitration awards is generally encouraged. Id. If the arbitrator’s award follows logically from a rational interpretation of the CBA, then it is sufficient to satisfy this second prong. The reviewing court should respect the arbitrator’s interpretation, if it “can in any rational way be derived from the agreement, viewed in light of its language, its context, and any other indicia of the parties’ intention.” Westmoreland, at 660, 939 A.2d at 862 (quoting Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969)). In applying the essence test, a court may not weigh one rational interpretation of the CBA against another, nor may it substitute its judgment for that of the arbitrator. Northwest Area School District v. Northwest Area Education Association, 954A.2d 111 (Pa. Commw. 2008).

Both prongs of the essence test are satisfied in this case. The first prong is satisfied, as neither party disputes that the issue of whether Rivers’ alleged conduct violated the no-tipping policy — and thus constituted “just cause” for her termination — falls within the terms of the CBA. With regard to the second prong, the authority argues that it has not been satisfied, contending that the arbitrator’s award was not rationally derived from the CBA. This argument has no merit.

The authority bases its argument on the assumption that “a favor or compensation is always implied when a gratuity is received for a service.” The Philadelphia Parking Authority’s statement of matters complained of on appeal, para. 3.1. The presumption that acceptance of a gratuity automatically implies some sort of favor or compensation is not supported by the language of the CBA or the authority’s written policy in the manual titled “Philadelphia Parking Authority Off-Street Operations Department Policy & Procedures and Plan of Succession” (manual). The “no-tipping policy” found at paragraph B, subsection 14 of the manual states:

“B. Categories for serious disciplinary action

“14. Acceptance of loans, gratuities, monetary or otherwise for favors or compensation from a party doing business with the authority, including customers, the above offenses can lead to immediate termination ...”

The authority produces no evidence and cites no authority that would support its assertion that a favor or compensation is always implied when an employee receives a gratuity. If this were true, the phrase “for favors or compensation” would be entirely devoid of any independent meaning. We cannot endorse such an interpretation as exclusive, and thus cannot say that the arbitrator’s ruling — which was based on a different interpretation— was not rationally derived from the CBA.

The arbitrator’s interpretation that paragraph B, subsection 14 of the manual requires actual evidence of the existence of some favor or compensation in order for the no-tipping policy to be violated is rationally derived from the CBA. Examining the plain language of paragraph B, subsection 14, one could interpret the inclusion of the qualifying phrase “for favors or compensation” to place a condition upon the acceptance of gratuities necessary for such an act to require serious disciplinary action. Under this interpretation, without any showing that a favor or compensation was performed or given by the authority employee, the mere acceptance of a gratuity is not sufficient to establish that the employee violated the no-tipping policy. By the authority’s own admission, “no evidence was offered at the arbitration which described the exact favor or compensation that Rivers provided to the customer on June 3,2008.” The Philadelphia Parking Authority’s statement of matters complained of on appeal, para. 32.

While the essence test is designed to foster judicial deference toward arbitration decisions, the Pennsylvania Supreme Court has carved out a narrow exception to that test which requires that courts vacate an arbitrator’s award “if it is violative of the public policy of the Commonwealth.” Westmoreland, at 665, 939 A.2d at 865. This limited public policy exception is consistent with the general rule that “a court will not enforce a contract which is unlawful or in violation of public policy.” Id. at 662, 939 A.2d at 863 (quoting United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 42 (1987)). A valid public policy in the context of this exception must be well-defined, dominant and “ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Id. at 666, 939 A.2d at 866.

The standard of review in addressing this public policy exception is to determine “whether the arbitrator’s award violated a public policy of the Commonwealth of Pennsylvania, not whether the misconduct giving rise to the award” violated a specific policy or work rule of the employing agency in the case being reviewed. Pennsyl vania Turnpike Commission v. Teamsters Local Union No. 250, 948 A.2d 196 (Pa. Commw. 2008). Pennsylvania courts have asserted that “[t]here is no public policy that mandates the discharge of all employees who are alleged to have committed [a] misconduct.” Id. at 207 (citing AFSME v. State of Illinois, 124 Ill.2d 246, 529 N.E. 2d 534 (1988). The burden of establishing that the arbitrator’s award comes within the public policy exception lies with the party asserting its application. Westmoreland at 662-63, 939 A.2d at 864.

In this case, the authority argues that upholding the arbitrator’s decision would violate the public policy of the City of Philadelphia and the Commonwealth of Pennsylvania. The authority argues that because Rivers is an employee of the authority, a government agency with public and statutory responsibilities for collecting parking revenue, enforcement of the arbitrator’s award would “undermine the public’s trust in the authority and would further compromise the integrity of the authority’s operations.” The Philadelphia Parking Authority’s statement of matters complained of on appeal, para. 5.2. To support this proposition, the authority cites provisions of the Philadelphia Home Rule Charter and the Pennsylvania Public Official and Employee Ethics Act which address, to varying degrees, rules and guidelines for the acceptance of gratuities or compensation by public officers or employees.

Without having to decide whether these laws are sufficient to comprise a well-defined and dominant public policy, this argument fails on its own terms. Section 10-105 of the Philadelphia Home Rule Charter prohibits officers or employees of the city from soliciting or accepting “any compensation or gratuity in the form of money or otherwise for any act or omission in the course of his public work.” (emphasis added) The Legislature’s inclusion of the condition that the gratuity must be accepted in exchange for the public employee’s commission of some act or omission necessarily requires that more than just the mere acceptance of gratuity be proven in order for it to be prohibited by this rule. The authority’s use of the Pennsylvania Public Official and Employee Ethics Act, 65 Pa.C.S. §1101 et seq., as support should not be seen as persuasive, as Ms. Rivers does not fall within the classification of “public official” or “public employee” as defined by section 1102 of that statute.

The parties in this case specifically bargained in their CBA for all factual issues in a grievance proceeding to be determined by an arbitrator and not the reviewing courts. The arbitrator found in his fact-specific inquiry that “the authority did not show that the gratuity was given as part of an exchange for a favor performed by Rivers” and thus she did not violate the no-tipping policy. Enforcement of this arbitration award does not violate any public policy of the Commonwealth, as the language of the authority’s no-tipping policy — which requires a showing of “favors or compensation” — is not contrary to, but rather reflective of the Legislature’s intent in including the condition in section 10-105 of the Philadelphia Home Rule Charter requiring the showing of some “act or omission” on the part of the employee.

This is not a case where enforcement of the arbitrator’s award must necessarily require the violation of a public policy of the Commonwealth. See Philadelphia Housing Authority v. American Federation of State, County and Municipal Employees, 956 A.2d 477 (Pa. Commw. 2008) (court recognized well-defined and dominant public policy against sexual harassment in the workplace and determined that it would undermine public policy for the arbitrator to “[t]o find substantial evidence supporting some type of disciplinary action for Title VII purposes but not for purposes of a ‘just cause’ provision in the CBA.”); Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educational Support Personnel Association, PSEA-NEA, 977 A.2d 1205 (Pa. Commw. 2009) (Arbitrator’s reinstatement of classroom assistant who had suffered adverse reaction to illicit drugs while at school ruled to have contravened strong public policy of educating children about the dangers of drug abuse, as it would demonstrate tolerance for illicit drug use, in direct contravention of public policy.). The facts as determined by the arbitrator established nothing beyond the mere acceptance of the gratuity, which in and of itself is not expressly against any well-defined public policy.

The essence test is satisfied in this case, and the authority does not properly invoke the narrow public policy exception. Therefore; the denial of the authority’s petition to vacate arbitration award should be affirmed.

      . The arbitrator also noted that Rivers’ back pay should be reduced by $300 on account of the tips she had received during her employment with the authority.


author: SNITE JR., J,

text:
    Keystone Freight Corp. v. Stricker

      Joseph M. Toddy, for appellant.

      MarkS. Kardos and Jeffrey B. McCarron, for appellee.
    August 12, 2010—
   SNITE JR., J,

PROCEDURAL HISTORY

On April 24, 2000, Stanley Zalinski, an 81-year-old man, was involved in a motor vehicle accident with a tractor trailer owned and operated by Keystone Freight Corporation.

On March 22,2002, Kardos, Rickies, Bidlingmaier & Bidlingmaier f/k/a Kardos, Rickies, Sellers & Hand (moving defendants) commenced a survival and wrongful death action against Keystone Freight and the truck driver, Abad E. Garach-Munoz, in the Eastern District of Pennsylvania on behalf of the executrix of Zalinski’s estate, Susan Strieker.

The underlying action was dismissed from the Eastern District of Pennsylvania due to a lack of diversity of citizenship and was transferred to Bucks County.

The parties conducted discovery until January 3,2008. Plaintiff then filed a praecipe for jury trial.

On May 5, 6, 8, and 9, 2008, trial was held before the Honorable Robert J. Mellon and a jury.

On May 9,2008 the jury received a charge for a wrongful death claim and began deliberating. That same day, the jury returned a unanimous verdict in favor of Keystone Freight.

On September 4,2008, Keystone Freight commenced the above-captioned action against moving defendants for wrongful use of civil proceedings.

FACTUAL HISTORY

On the morning of April 24, 2000, Stanley Zalinksi was driving to the Oxford Valley Mall in Bucks County. (Defendants’ motion for summary judgment, exhibit “B” at ¶8; exhibit “C”.) The operator of the tractor trailer in question, Mr. Garach-Munoz, backed into Mr. Zalinski’s lane of travel. (Defendants’ motion for summary judgment, exhibit “C”.) An eye witness, Amy Gerth, heard the decedent’s engine accelerate and saw the decedent’s car collide with the rear driver’s side of the tractor trailer. (Id.)

Mr. Zalinski was transported to the hospital and later pronounced dead. (Id.) Dr. Raafat Ahmad performed an autopsy on Mr. Zalinski and concluded that Mr. Zalinski had died of natural causes due to “[a]cute cardiac arrhythmia due to severe atherosclerotic heart disease.” (Defendants’ motion for summary judgment, exhibit “D”.)

Officer Michael Lubold, of the Middletown Township Police Department, investigated the accident and interviewed Ms. Gerth and the truck driver. (Defendants’ motion for summary judgment, exhibit “C”.) Officer Lubold concluded that Mr. Zalinski fell unconscious, as a result of a heart attack, and pressed on the accelerator pedal, which propelled his car down the trafficway and into the truck. (Id.)

Moving defendants contacted Dr. Richard Callery, chief medical examiner in the State of Delaware, for an opinion regarding Mr. Zalinski’s death. (Defendants’ motion for summary judgment exhibit “G”.) Dr. Callery reviewed the autopsy report, the toxicology report, the coroner’s report, a report by James C. Halikman, an accident reconstruction specialist, the photographs of the accident scene, and the photographs taken during autopsy. (Id.; defendants’ motion for summary judgment, exhibit “F”.) Dr. Callery opined that “Mr. Zalinski died of multiple blunt force injuries and the manner of his death is accidental.” (Id.)

Moving defendants then sent Dr. Callery’s report to the Bucks County Coroner’s Office to review the case. (Defendants’ motion for summary judgment, exhibit “A” at ¶22.) The Bucks County Coroner, Dr. Joseph R Campbell, sent the file to Dr. Halbert E. Fillinger, of Forensic Associates of Philadelphia, for an independent analysis. (Defendants’ motion for summary judgment, exhibit “I”.) Dr. Fillinger agreed with Dr. Ahmad’s findings that Mr. Zalinksi had died of natural causes due to a cardiac episode. (Id.)

On February 13, 2002, moving defendants’ attorney, Michael Sellers, Esquire, conducted a telephone conference with Dr. Campbell. The last paragraph of the memo memorializing this phone conversation references Dr. Fillinger’s report and states “[w]e have to see [his report], and send it to Dr. Callery for his review before evaluating whether we even have a case at this point, given Mr.

Fillinger’s reputation.” (Keystone Freight’s answer to the motion for summary judgment, exhibit “Q”.)

Mr. Callery rendered a supplemental expert report stating that his opinion regarding Mr. Zalinski’s cause of death remained unchanged — he still believed that Mr. Zalinski had died from the accident, not heart failure. (Defendants’ motion for summary judgment, exhibit “J”.)

DISCUSSION

My granting of summary judgment in favor of moving defendants against Keystone Freight’s claim was correct because Keystone Freight failed to produce evidence essential to the cause and could not satisfy the elements of a wrongful use of civil proceedings claim. A motion for summary judgment may be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part is entitled to judgment as a matter of law.” Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). Pa.R.C.P. 1035.2 provides that:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as matter of law ... if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

The burden of proving the existence of material fact is on the non-moving party. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998). Here, during discovery, Keystone Freight presented no evidence that would require submission to a jury because it was unable to establish the elements of the Dragonetti action.

In order for Keystone Freight to have succeeded in a Dragonetti action, it must have alleged and proved the following three elements: (1) that the underlying proceedings terminated in its favor; and, (2) that the defendants caused those proceedings to be instituted without probable cause; and, (3) that the proceedings were instituted for an improper purpose. 42 Pa.C.S. §8351(a), see also, Nise v. Nise, 2008 Phila. Ct. Corn. Pl. LEXIS 93, *6 (Pa. C.P. 2008) (citing Bannar v. Miller, 701 A.2d 232, 238 (Pa. Super. 1997)).

To constitute a favorable termination, the reason for termination should connect to the alleged absence of probable cause. Simply because a party does not prevail on the evidence does not mean the suit was brought improperly. Laventhol & Horwath v. First Pennsylvania Bank N.A., 18 Phila. 580 (Pa. C.P. 1988), aff’d, 398 Pa. Super. 652, 573 A.2d 626 (1990). Accordingly, Keystone Freight failed to meet this element because the jury’s finding of no negligence on Keystone Freight’s behalf does not relate to the failure of probable cause alleged by plaintiff. Keystone Freight’s allegations of wrongful use of proceedings related to the cause of Mr. Zalinski’s injuries. Therefore, because Keystone Freight cannot connect the reason for termination of the underlying proceeding and the lack of probable cause alleged, the granting of summary judgment should be affirmed.

Furthermore, Keystone Freight cannot establish that moving defendants lacked probable cause in initiating the underlying suit. It is the plaintiff’s burden to prove that the lawyer acted without probable cause. Cosmas v. Bloomingdales Bros. Inc., 442 Pa. Super. 476, 484, 660 A.2d 83, 86 (1995). 42 Pa.C.S. §8352 outlines the standard for probable cause:

“A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
“(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
“(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
“(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.”

Here, the burden rests with Keystone Freight, and Keystone Freight is unable to sufficiently show a lack of probable cause. Keystone Freight’s answer to the motion for summary judgment does not proffer any evidence which justifies a claim for lack of probable cause. Keystone Freight’s sole contention is that the memorandum of moving defendants’ counsel solidifies that moving defendant “knew or should have known” that their case was meritless, however, this contention is taken out of context of the entire memorandum written by Mr. Sellers. In the memorandum, Mr. Sellers explicitly writes that he will look into the matter further. At which point, Mr. Sellers contacts Mr. Callery again, and Mr. Callery writes a supplemental report in which he maintains his previous medical assessment that Mr. Zalinski died from blunt force injuries. Therefore, moving defendants’ had sufficient probable cause that their claim could be successful.

Keystone Freight further maintains that because of its medical experts and the police officer stating that Mr. Zalinski was dead or unconscious before the crash, moving defendants should have known that their underlying claim lacked probable cause. However, this argument fails too because moving defendants had the expertise of Mr. Callery supporting their contention which made their claim cognizable. But for the ability of experts to stand in opposition, the civil, legal world would be at best exceptionally uncontroversial and at worst unneeded. Furthermore, Keystone Freight has not provided any evidence to contend that moving defendants knew their claim was meritless.

Additionally, appellant cannot prove that moving defendants filed the underlying law suit with intent to harass or injure Keystone Freight. Improper purpose does not exist if the attorney “acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.”Korn v. Epstein, 727 A.2d 1130, 1133 (Pa. Super. 1999). Here, defendants moved forward with the underlying claim in an effort to properly adjudicate their demands. Moreover, as evidenced in defendants’ motion for summary judgment exhibit “N,” there is no previous relationship between the parties which would have established a malicious or improper motive in the initiation of the underlying claim. Throughout depositions for the above-captioned action, Keystone Freight was unable to identify any recoverable past or future damages for loss of reputation or business. (See defendants motion for summary judgment, exhibit “N”.) Therefore, Keystone Freight cannot establish an improper purpose in moving defendants bringing about the underlying claim.

CONCLUSION

Because Keystone Freight has not proffered any evidence throughout the discovery and post-motion phases which would render a need for jury determination, summary judgment should be affirmed. Specifically, Keystone Freight could not satisfy the elements of a Dragonetti action because Keystone Freight could not establish that the moving defendants brought the above-captioned action without probable cause. Considering that moving defendants believed they had a cause of action by way of their medical expert, summary judgment was appropriate because Keystone Freight did not have a claim.

      . The cause of action was for negligence of the truck driver to fail to use ordinary care when backing up the truck.

      . Keystone Freight did not move for nonsuit after all evidence had been presented. (See exhibit “L.” Trial transcript of May 8, 2008 attached to moving defendants’ motion for summary judgment at 3-4.)

      . On the verdict sheet, the jury was asked: (1) was Keystone negligent; (2) was Keystone’s negligence a factual cause of any harm to plaintiff; (3) was Zalinski negligent; (4) was Zalinksi’s negligence a factual cause of harm to Zalinksi, (5) the comparative negligence of each party; (6) and the total amount of damages. (See exhibit “M.” Verdict sheet attached to moving defendants’ motion for summary judgment at 15, 24, 26-28.)

      . See id. at 79. The jury found that Keystone Freight was not negligent and did not reach the question of causation.

      . The jury did not even reach this question because of their finding that Keystone Freight and the driver were not negligent.


author: MOSS, J.,

text:
    Carr v. Immaculate Mary Nursing Home

      Charles J. Galvin, for plaintiff.

      Michelle K. Carson and Patrick R. Kingsley, for defendants.
    August 11, 2010
   MOSS, J.,

This matter concerns whether we erred in overruling defendants’ preliminary objections in the form of a motion to compel arbitration.

FACTS AND PROCEDURAL HISTORY

Plaintiff John Carr Jr. executor of the estate of John Carr Sr. commenced this action for negligence and wrongful death on January 15, 2010 against defendants Immaculate Mary Nursing Home, Catholic Healthcare Services of the Archdiocese of Philadelphia, and the Archdiocese of Philadelphia. Plaintiff alleges defendants failed to properly supervise Carr while he resided at Immaculate Mary Nursing Home Facility resulting in serious injuries leading to his death. (Complaint p. 8.) Carr was admitted on January 26, 2009 with symptoms of dementia including disorientation, confusion, decreased awareness, ambulatory deficits, impaired vision, and incontinence. (Complaint pp. 8-9.) Carr had a history of falling. Id. The facility offered a dementia program to “maintain optimum comfort and provide the highest quality of life possibly for resident with late stage dementia.” (Complaint p. 7.) Residents would be housed on a secure dementia floor. Id.

On admission, Carr’s wife executed a nursing facility admission agreement containing a binding, mandatory arbitration clause. (Admission agreement pp. 17-21.) Paragraph 1 of the agreement stated:

“This agreement is made by and between Immaculate Mary Home (facility), a Pennsylvania no-profit corporation and resident and his/her legal representative and or/ the individual who has access to resident’s income and financial resources available to pay for nursing care (responsible person) for the provision of nursing services for John Carr (resident).”

The agreement defined “responsible person” as follows:

“Whereas, the responsible person may be the guardian, the agent under a valid power of attorney, or any person authorized by resident to serve as resident’s responsible person.”

Specifically, the arbitration clause provided that:

“Unless resolved or settled by medication, any claim that resident may have against the facility for any personal injuries sustained by the resident arising from or relating to any alleged medical malpractice, inadequate care, or any other cause or reason while residing in the facility, shall be settled exclusively by arbitration . . . resident and/or responsible party relinquish and give up the resident’s right to a jury trial on any claims for damages arising from personal injuries to the resident which are submitted to arbitration under this agreement.”

Carr’s wife signed as the designated “responsible person” on Carr’s behalf. Carr’s wife did not have power of attorney, and had not been appointed legal guardian. On May 10,2009, Carr exited his room on the dementia floor gained access to a utility room, opened the laundry chute hatch, tilted himself into it, and fell three stories into the basement. (Complaint p. 10.) Carr sustained serious injuries and died on November 9,2009. (Complaint p. 16.) Plaintiff then brought suit.

Defendants filed preliminary objections as a motion to compel arbitration on February 9, 2010. Plaintiff responded the arbitration clause was invalid because Carr’s wife did not have authority to waive his right to a jury trial. (Plaintiff’s answer to preliminary objections p. 5.) Defendants argued the agreement is valid because Carr’s wife had apparent authority to act on his behalf. (Defendants’ reply in further support of preliminary objections, p. 15.) After hearing on May 20, 2010, we overruled preliminary objections without prejudice to be raised as a motion for summary judgment once discovery was over and the record was complete. On June 25, 2010, defendants filed this appeal.

DISCUSSION

We properly overruled defendants’ preliminary objections. A written agreement to subject any existing controversy to arbitration, or a provision in a written agreement to summit to arbitration is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity relating to validity, enforceability or revocation. 42 Pa.C.S. §7303. To determine whether arbitration is appropriate, the court first asks if a valid agreement exists. McNulty v. H&R Block Inc., 824 A.2d, 1267, 1272 (Pa. Super. 2004), citing Keystone Technology Group Inc. v. Kerr Group Inc., 824 A.2d 1223, 1227 (Pa. Super. 2003). Second, the court inquires if said dispute is within the agreement’s scope. Id.

In the instant case, the scope of the agreement was not at issue. As to validity for the agreement to bind Carr, Carr’s wife must have had authority to act for him. Carr’s wife was not his legal guardian and she did not have power of attorney. Thus Carr’s wife could only act on his behalf if an agency relationship existed between them.

An agency relationship can be created through actual authority, apparent authority or authority by estoppel. Bolus v. United Penn Bank, 363 Pa. Super. 247, 260, 525 A.2d 1215, 1221 (1987). Actual authority exists when granted expressly in writing signed by the principal. Authority by estoppel may exist when a principal, by his culpable negligence, permits an agent to exercise powers not granted to him. Id. Lastly, apparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe the principal has granted agent the authority he or she purports to exercise. Turner Hydraulics Inc. v. Susquehanna Construction Corporation, 414 Pa. Super. 130, 135, 606 A.2d 532, 535 (1992). An agent cannot, simply by his or her own words invest himself or herself with apparent authority. Such authority emanates from the principal’s action and not the agent’s. Turnway Corporation v. Soffer, 461 Pa. 447, 458, 336 A.2d 871, 876 (1975). An agency relationship does not arise from the marital relationship itself. Bradney v. Sakelson, 325 Pa. Super. 519, 523, 473 A.2d 189, 191, (1984). One spouse does not have the power to act as an agent for the other simply by virtue of marriage. Id.

We found persuasive the analysis of the Hon P. Stanton Wettick Jr. in Hickman v. Woodhaven Care Center LLC. In Hickman, the court evaluated preliminary objections as a motion to compel arbitration of a wrongful death and survival action. Hickman v. Woodhaven Care Center LLC, Allegheny County Court of Common Pleas no. GD07-017988 (March 31, 2008). There, a husband executed a nursing home admission agreement containing an arbitration clause for his wife. Id. at 2. Wife had suffered a stroke and had no memory recall. Id. at 1. Hickman had no power of attorney and was not his wife’s legal guardian. Id. at 5. The court found no conduct by Mrs. Hickman that could support a finding she had authorized her hushand to act as her agent. Id. at 11. Thus, Woodhaven’s motion to compel arbitration was denied. Id.

The burden of establishing an agency relationship rests with the party asserting it. Basile v. H&R Block Inc., 563 Pa. 359, 367-68, 761 A.2d 1115, 1120 (2000). Whether a principal-agent relationship exists is ordinarily a jury question. If the facts generating the relationship are not disputed, the court may decide it. Breslin by Breslin v. Ridarelli, 308 Pa. Super. 179, 184, 454 A.2d 80, 82 (1982) citing Juarbe v. City of Philadelphia, 288 Pa. Super. 330, 335, 431 A.2d 1073, 1076(1981).

In the instant case, there was no evidence of a writing expressly granting Carr’s wife actual authority. There is no authority by estoppel because defendants offered no evidence Carr was negligent. Defendants offered no evidence showing Carr knew of the arbitration clause, authorized his wife to sign the agreement, or otherwise agreed to arbitrate. Defendents knew of Carr’s diminished mental capacity, having admitted him to an area specifically designated for demential patients. In fact, defendants offered no evidence of Carr’s conduct when the agreement was executed.

CONCLUSION

Because defendants failed to provide sufficient evidence Carr’s wife had authority to bind Carr to arbitration, we correctly overruled defendants’ preliminary objections. However, by doing so without prejudice, we have allowed defendants the opportunity to conduct discovery and revisit the issue on summary judgment it warranted after the record is complete.