author: SILOW, J.,

text:
    Snyder v. Halsey

      C.P. of Montgomery County,
    no. 05-13134.

      Alfred J. Merlie, for plaintiffs.

      Albert A. Griffith, for defendant.
    November 22, 2010
   SILOW, J.,

Appellants, Jennifer

and James Snyder, h/w (“appellants”), appeal from this court’s order of September 7, 2010, denying their motion for a new trial. For the reasons set forth below, the September 7, 2010 order should be affirmed.

FACTS AND PROCEDURAL HISTORY

This case involved a motor vehicle accident that occurred on May 10, 2003, when a vehicle operated by appellee, Amber Kay Halsey (“appellee”), rear-ended appellants’ vehicle, allegedly causing appellant, Jennifer Snyder, injury. Prior to trial, the parties stipulated that appellee was negligent and that Mrs. Snyder’s out-of-pocket medical expenses were $14,134.31. After a two-day jury trial (consisting of eight jurors) that commenced on May 3,2010, the jury found by a preponderance of the evidence that appellee’s negligence was a factual cause of Mrs. Snyder’s damages, and awarded Mrs. Snyder $14,134.31 to compensate her for her medical expenses. The juiy declined to award Mrs. Snyder noneconomic damages. In addition, the jury did not award appellant, James Snyder, any damages for loss of consortium.

On May 10, 2010, appellants filed a motion for new trial, arguing that the jury’s verdict was against the weight of the evidence. After a hearing, this court denied appellants’ motion on September 7, 2010. On October 5, 2010, appellants noticed their appeal of this denial. On October 7, 2010, this court directed appellants to file a concise statement of errors complained of on appeal (the “concise statement”) within twenty-one (21) days, appellants filed their timely concise statement on October 25,2010.

ISSUES

In their concise statement, appellants raise the following allegations of error against this court:

1. Whether the trial court erred in denying appellants ’ motion for new trial on the question of damages for pain and suffering and loss of consortium?
2. Whether the jury’s verdict on the question of pain and suffering and loss of consortium were against the weight of the evidence?

DISCUSSION

1 & 2. This court properly denied appellants’ motion for new trial.

A. Standard of Review.

Appellants’ motion for new trial asserted that the jury’s verdict of no noneconomic damages was against the weight of the evidence; appellants sought a new trial on the issue of damages only. “Trial courts have broad discretion to grant or deny a new trial.” Zelger v. Detweiler, 835 A.2d 764, 767 (Pa. Super. 2003). When a challenge to a new trial is appealed, the proper standard of review is whether the trial court abused its discretion. Harman ex rel. Harman v. Borah, 562 Pa. 455, 466, 756 A.2d 1116, 1122 (Pa. 2000). “An appellate court may reverse the trial court’s decision only if it finds no basis on the record to support the reasons offered by the trial court.” Zeiher, 835 A.2d at 767.

“A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Burrell v. Philadelphia Electric Co., 265 A.2d 516, 518 (Pa. 1970). “A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion...Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.” Id (citations omitted)

B. Although the jury found that the motor vehicle accident was the factual cause of injury, the jury was not required to award Mrs. Snyder noneconomic damages.

In the present case, the jury found that appellee’s negligence (which was stipulated to) was the factual cause of Mrs. Snyder’s injury. Additionally, both parties’ experts agreed at trial that Mrs. Snyder sustained some injury as a result of the motor vehicle accident, although there remained a question as to the extent of such injury. The jury awarded Mrs. Snyder $ 14,134.31 to compensate her for the medical expenses she incurred out-of-pocket. Appellants contended that Pennsylvania law also mandated the juiy to award Mrs. Snyder past, present or future noneconomic damages (pain and suffering, loss of enjoyment of life, and embarrassment and humiliation).

Where both parties’ medical experts agree that an accident caused the plaintiff harm, a jury cannot find that the plaintiff did not suffer some injury. See Andrews v. Jackson, 800 A.2d 959 (Pa. Super. 2002). In Andrews, the parties’ experts agreed that a car accident caused the plaintiff to suffer some injury. The jury in that case found the defendant negligent but did not find that the accident caused an injury, and therefore awarded the plaintiff no damages. The Superior Court ruled that the trial court’s failure to grant a new trial was error.

The instant case, however, is distinguishable from cases such as Andrews in that this jury did find that appellee’s negligent act was the factual cause of injury to Mrs. Snyder. This is what is required by Pennsylvania law. A jury is free to determine the amount of damages, if any, a plaintiff suffered. In this case, the jury found that Mrs. Snyder should be compensated for her out-of-pocket medical expenses but found, based upon the evidence at trial, that her injury was not severe enough for her to have incurred noneconomic damages such as pain and suffering, loss of life’s pleasures, and embarrassment and humiliation.

A jury that finds causation is not required to award noneconomic damages in every case. In Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (Pa. 2001), the Pennsylvania Supreme Court held that the jury’s award of medical expenses without a corresponding award of damages for pain and suffering was not necessarily inconsistent. Rather, a jury’s verdict of medical expenses only “should not be disturbed where there is reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a preexisting condition or Injury was the sole cause of the alleged pain and suffering.” Id. at 767. In the instant case, there was plentiful evidence for the juiy to reasonably find the existence of one or both of these options, as is discussed infra. Additionally, it should be noted that “[jjuries are not to be faulted...if they do not believe all they are told and all that common experience does not accept. That is not to say they may disregard an obvious injury. It is, however, to say that they are not obliged that every injury causes pain or the pain alleged.” Id. (citations omitted)

C. Ample evidence was presented at trial to support the jury’s finding that Mrs. Snyder’s injury was not severe enough to award noneconomic damages.

The testimony at trial demonstrated that the contact between appellants’ and appellee’s vehicles was minimal at best. Mrs. Snyder testified that appellants’ car was stopped at a red light when appellee’s vehicle impacted it from behind. She stated that it was not a “very hard hit”, although it was enough to lock her seatbelt. Mrs. Snyder admitted that her young son, who was sleeping in the backseat, did not wake up as a result of the impact. Photographs of appellants’ car showed a white mark on the rear bumper but no other damage. This was confirmed by Mrs. Snyder when she exited the vehicle to inspect the scene. Appellants made no repairs to their car. Also, appellee testified that she had been traveling very slowly when she impacted appellants’ vehicle, which corresponds with the lack of damage to plaintiffs’ car. Although Mrs. Snyder stated that she felt nauseous immediately after the accident, she declined the responding officer’s offer to call an ambulance and went home instead. The next morning, a Sunday, she said that she woke sore and stiff and did not go to church. That Monday she went to see her regular chiropractor, Dr. Digles. At her deposition, which was introduced at trial, Mrs. Snyder testified that she was not sure if her headaches were a result of the accident, as she had a history of headaches, neck and back pain since college for which Dr. Digles had been treating her. The instant May 2003 motor vehicle accident was Mrs. Snyder’s fourth; her previous ones occurred in 1991,1994 and 1997. She claimed to have experienced “whiplash-like” injuries as a result of all of these accidents. After her first accident in 1991, she had constant hip and mid-back pain, as well as headaches. Although Mrs. Snyder complained of on-going pain after the 2003 accident, she had been under active treatment for the same conditions prior to the accident. Although she continued seeing her chiropractor after the accident, Mrs. Snyder did not visit any other doctor for treatment of these injuries until three and a half years had passed.

There was an incident in on July 30, 2003 (subsequent to the motor vehicle accident at issue) where Mrs. Snyder claimed she felt dizzy and fell down some stairs, injuring her foot. However, her treating physician’s medical records revealed the doctor’s conclusion that the cause of Mrs. Snyder’s fall was not dizziness, but rather that she tripped. Also, her chiropractor Dr. Digles wrote on August 1,2003 that Mrs. Snyder responded excellently to her care until an exacerbation of her symptoms caused by the July 30, 2003 fall.

In viewingthis evidence, thejury’s verdictto compensate Mrs. Snyder for her medical expenses only was reasonable and did not rise to the required standard of “shocking the sense of justice” to warrant a new trial. Accordingly, this court properly denied appellants’ motion.

D. The jury was not required to award Mr. Snyder damages for loss of consortium.

Mr. Snyder’s loss of consortium claim is a derivative of Mrs. Snyder’s underlying claim. See e.g. City of Philadelphia v. Buck, 587 A.2d 875 (Pa. Cmwlth. 1991). Since the jury determined that Mrs. Snyder’s injury was not severe enough to warrant noneconomic damages, the jury’s verdict against Mr. Snyder on his claim for loss of consortium logically flowed.

CONCLUSION

Based upon the foregoing, this court respectfully requests that the Superior Court affirm the September 7, 2010 order, denying appellants’ motion for new trial.

      . Appellant, James Snyder, was driving. Mrs. Snyder was in the passenger’s seat.

      . Both of appellants’ allegations of error deal with the same issue. Thus, for the sake of judicial economy, this court will address them together.

      . This nullified the prior rule set forth by Dougherty v. McLaughlin, 637 A.2d 1017 (Pa. Super. 1994), that mandated a new trial where a jury made findings that a plaintiff be awarded medical expenses but not noneconomic damages.

      . This is distinct from the two cases appellants cited in their brief in support of their motion: Burnhauser v. Bumbenter, 745 A.2d 1256 (Pa. Super. 2000), and Marsh v. Haniey, 856 A.2d 138 (Pa. Super. 2004), both of which involved very serious vehicle collisions.


source: Caselaw Access Project

author: PICCIONE, /.,

license: Public Domain

text:
    First National Bank of Pennsylvania v. Kelly

      C.P. of Lawrence County,
    no. 11998-08, C.A.

      Joseph A. Fidler, for plaintiff.

      P. Raymond Bartholomew, for defendants.

      James W. Manolis, for additional defendants.
    December 28, 2010
   PICCIONE, /.,

Before this court for disposition is plaintiff’s motion for summary judgment. The current action arose out of a guaranty agreement between First National Bank of Pennsylvania, successor by merger to the First National Bank of Slippery Rock, (hereinafter, the “plaintiff’) and Timothy S. Kelly and Sharon L. Kelly (hereinafter, the “defendants”). In the guaranty dated May 24, 2002, the defendants “absolutely and unconditionally” guaranteed the “payment and performance of the debt, liability, or obligation” of K & M Feeds, Inc. (hereinafter, “K & M”) to the plaintiff, pursuant to a note dated May 24, 2002 in the amount of $347,000.00. Pl.’s Ex. A. On December 1, 2008, the plaintiff filed a complaint alleging that the defendants, were in default under the guaranty and that the defendants owed plaintiff $313,781.36.

On July 2,2009, the defendants filed a complaint joining additional defendants. In it, the defendants allege that, together with Carl V. Mace and Cindy A. Mace (hereinafter, the “additional defendants), they became involved with K & M in December of 1995. Several years later, the additional defendants agreed to purchase the defendants’ shares in K & M for $40,000.00. A promissoiy judgment note and an agreement fixing the buyout price were signed on January 1, 2002. According to the complaint, the defendants then entered into the guaranty agreement with the plaintiff because they recognized that K & M would need financing. Defendants allege that, two years later in April of 2004, the defendants transferred their stock in K & M to the additional defendants in exchange for the additional defendants’ oral promise that the defendants would be released from any obligations related to K & M. Pursuant to an order of court dated January 11, 2010, defendants were permitted to join additional defendants in this lawsuit.

On February 18, 2010, plaintiff filed the instant motion for summary judgment, in which it is alleged that each of the eight defenses raised by defendants in their answer is without merit. On September 17, 2010, defendant filed a brief in opposition to plaintiff’s motion, raising the following four issues:

Whether judgment against guarantors is precluded when there are open issues as to liability against additional defendants.
Whether defendants’ defense of “good faith and fair dealing” presents a question that calls for judicial scrutiny.
Whether the guaranty agreement lacks requisite language for waiver of the “impairment of collateral” defense.
Whether there are other points giving rise to genuine issues of material fact, thus precluding summary judgment. Def.’s Br. at 2.

In their response and brief, defendants fail to support several of the defenses raised in their answer. The court heard oral argument regarding plaintiff’s motion on September 27, 2010. During the argument, defendants withdrew the defenses not addressed in their response and brief.

Under Pennsylvania law, the standard for summary 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 nonmoving party.” P.J.S. v. Pennsylvania State Ethics Comm ’n, 555 Pa. 149, 723 A.2d 174 (Pa. 1999) (citing Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (Pa. 1994)).

Preliminarily, defendants claim that plaintiff’s motion should be denied at this time because there are open issues as to who is liable for K & M’s debt to plaintiff. In support of their argument, defendants point to the oral agreement between defendants and additional defendants which provided for the release of defendants from any liability to plaintiff. According to defendants, this agreement, which was executed two years after the guaranty was signed, was to be put in writing and that the documentation was handled by attorney Robert D. Clark. None of that documentation has been produced. Nevertheless, defendants argue that their agreement with additional defendants creates a question as to who is responsible for the debt owed to plaintiff.

Defendants cite no Pennsylvania authority supporting their argument. Defendants also fail to indicate why their agreement with additional defendants should affect plaintiff’s rights under the guaranty. Plaintiff was not involved in the agreement between defendants and additional defendants and should not be bound by the terms of such an agreement. Furthermore, the guaranty provided that defendants “waive[d] any and all defenses, claims and discharges of [K & M], or any other obligor, pertaining to indebtedness, except the defense of discharge by payment in full.” Pl.’s Ex. A. As a result, defendants’ oral agreement with additional defendants does not create open issues as to who is liable for the debt owed to plaintiff. The guaranty unequivocally states that defendant is responsible for repayment.

Defendants’ next argument is that plaintiff violated the duty of good faith and fair dealing by failing to give defendants notice of K & M’s default until eleven months after the default occurred. In Pennsylvania, “a borrower may plead sufficient facts to make out a claim that a lender violated its general duty of‘good faith’ arising out of the law of contracts.” Cable & Associates Insurance Agency, Inc. v. Commercial National Bank of Pennsylvania, 875 A.2d 361, 364 (Pa. Super. 2005) (citing Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053 (Pa. Super. 1999)). “However,...a lending institution does not violate a separate duty of good faith by adhering to its agreements with a borrower or enforcing its contractual rights as a creditor.” Heritage Surveyors & Engineers, Inc. v. National Penn Bank, 801 A.2d 1248,1253 (Pa. Super. 2002).

The duty of good faith imposed upon contracting parties does not compel a lender to surrender rights which it has been given by statute or by the terms of its contract. Similarly, it cannot be said that a lender has violated a duty of good faith merely because it has negotiated terms of a loan which are favorable to itself. Creeger Brick and Building Supply Inc. v. Mid-State Bank and Trust Company, 560 A.2d 151, 154 (Pa. Super. 1989).

“A lending institution...is not required to delay attempts to recover from a guarantor after the principal debtor has defaulted.” Creeger, 560 A.2d at 154.

In the present case, plaintiff always acted in conformity with the terms of the note and guaranty and was under no obligation to extend the maturity date of the note or to provide defendants with earlier notice. The guaranty provides that defendants’ liability is not to be affected by “any delay or lack of due diligence in the enforcement of the Indebtedness[.]” PL’s Ex. A. In addition, the guaranty states that defendants “waive [d] presentment, demand for payment, notice of dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.” Id. Because plaintiff was merely exercising its express contractual rights, plaintiff’s actions do not, as a matter of law, constitute a breach of the contractual duty of good faith and fair dealing. Cable & Assoc. Ins. Agency, Inc., 875 A.2d at 364 (citing Creeger, 560 A.2d at 154).

Defendants also question whether the guaranty lacks the requisite language for a waiver of the “impairment of collateral” defense. Initially, the court notes that there is nothing in the record indicating that plaintiff liquidated any assets of K & M. As a result, the defense of impairment of collateral does not appear to be applicable in this case. Nevertheless, a review of the guaranty suggests that requisite language for a waiver of the defense was included. The Superior Court has repeatedly stated that when a “guaranty is absolute and unconditional and does not require the creditor to take any action to preserve the security, the creditor’s failure to do so will not relieve the surety’s obligation to pay upon default.” McKeesport National Bank v. Rosenthal, 513 A.2d 434, 436 (Pa. Super. 1986) (citing First National Consumer Discount Co. v. McCrossan, 486 A.2d 396, 399 (Pa. Super. 1984); Continental Leasing Corp. v. Lebo, 272 A.2d 193 (Pa. Super. 1970)). It is clear from a review of the guaranty that it is absolute and unconditional and does not require plaintiff to take any action to preserve the collateral. Therefore, the impairment of collateral defense is not available to defendants.

Before addressing defendants’ final issue, which questions plaintiff’s calculation of the amount owed, it is necessary to address plaintiff’s claim that defendants are in default, an allegation that defendants deny in their answer and new matter but not in their brief and response to plaintiff’s, motion for summary judgment. In their answer, defendants state that they “can neither admit nor deny whether there has been an occurrence of default under the note; hence the defendants deny that the plaintiff has any lawful basis for asserting a default under the guaranty.” Def.’s answer. In their new matter, defendants allege that:

10. The note signed by K & M Feeds, Inc. under date of May 24, 2002 never went into default; hence the plaintiff had no lawful cause to declare the guaranty signed by the defendants to be in default. The following factors are noted:
a. The Note calls for payments from K & M Feeds, Inc., the principal borrower, at the rate of $3,130.00 per month; and, to the best of the defendants’ knowledge, said borrower did not default in making those payments Def.’s new matter.

In their pleadings, defendants generally deny any default and imply that any failure to make payments is the fault of additional defendants, who had allegedly assumed the obligation to pay plaintiff pursuant to the oral agreement between defendants and additional defendants.

The note indicates that the “final payment of the entire unpaid balance of principal and interest will be due May 25,2007.” Pl.’s Ex. B. According to the loan history report attached to plaintiff’s motion, a substantial portion of the borrowed sum remained to be paid on that date. Further, $249,975.47 remained to be paid on April 2,2009, the last date listed on the loan history report. Under the terms and conditions of the guaranty and note, K & M was in default on the date that the note matured, May 25,2007. Defendants offer no evidence tending to disprove default, and their general denials are insufficient to create a genuine issue of material fact. The record clearly reveals that K & M is in default due to defendants’ failure to comply with the terms and conditions of the guaranty and note. Therefore, in accordance with Pa.R.C.P. 1029(b), defendants’ general denials are deemed admissions to plaintiff’s allegation of default.

In their final issue, defendants ask whether there are other points giving rise to genuine issues of material fact; however, defendants only question the amount of interest and attorney’s fees demanded by plaintiff. Plaintiff demands payment of interest in the amount of $43,905.33 and payment of attorney’s fees in the amount of $22,566.34. Defendants assert that the amounts requested are unexplained, excessive, and unreasonable. Plaintiff argues that it is entitled to interest, fees, and other costs in accordance with the terms and conditions of the guaranty and note. Although the guaranty and note require payment of these expenses, plaintiff has not offered any evidence supporting the amount of interest, fees, and costs demanded. Because plaintiff has failed to meet its burden of establishing the specific amount owed, plaintiff’s motion for summary judgment is denied on the issue of damages. Plaintiff’s motion is granted on the issue of liability.

ORDER OF COURT

And now, December 28, 2010, the court having held oral argument on September 27, 2010 regarding plaintiff’s motion for summary judgment, with Joseph A. Fidler, Esquire, appearing and representing the plaintiff, and R Raymond Bartholomew, Esquire, appearing and representing the defendants, and James W. Manolis, Esquire, representing the additional defendants, it is hereby ordered, adjudged and decreed as follows:

1. Plaintiff’s motion for summary judgment is granted on the issue of defendants’ liability pursuant to the attached opinion.
2. Plaintiff’s motion for summaiy judgment is denied on the issue of damages pursuant to the attached opinion.
3. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: JENKINS, J.,

text:
    Commonwealth v. Johnson

      C.P. of Delaware County,
    no. 1436-10.

      John F.X. Reilly, for Commonwealth.

      Patrick J. Connors, for defendant.
    December 14, 2010
   JENKINS, J.,

After a non-jury trial, the court found Dennis Johnson guilty of possession of a controlled substance (cocaine) with intent to deliver (“PWID”), conspiracy to possess with intent to deliver and possession of drug paraphernalia (“PDP”). The court sentenced Johnson to 3-6 years imprisonment for PWID, a consecutive term of two years probation for conspiracy and a concurrent term of probation for PDP. This timely direct appeal followed.

Johnson contends in this appeal that the evidence was insufficient to support his convictions. The court disagrees and recommends that his judgment of sentence be affirmed.

When reviewing a challenge to the sufficiency of the evidence, Pennsylvania appellate courts must view all the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (Pa. 2000). The evidence is sufficient to support the verdict when it establishes each material element of the crime charged against the defendant beyond a reasonable doubt. Id. An appellate court “may not weigh the evidence and substitute [its] judgment for the fact-finder.” Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super. 1995). “The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Cunningham, 805 A.2d 566, 571 (Pa. Super. 2002), alloc. denied, 573 Pa. 663, 820 A.2d 703 (Pa. 2003).

Construed under this standard, the evidence adduced at trial was as follows: State Trooper Scott Miscannon testified that in January 2010, he and other officers were investigating drug-related activity at a residence at 1125 Meadow Lane in Chester, Pennsylvania (“the premises”). Tr., 6/29/10 (“Tr.”), p. 19. Trooper Miscannon personally conducted surveillance of the premises and observed numerous individuals going in and out of the premises. Tr. 21-22. On two occasions between December 9, 2009 and January 8, 2010, the trooper observed Johnson entering the premises without using a key or knocking. Tr. 22.

On January 8, 2010, Trooper Miscannon obtained a warrant to search the premises for controlled substances and related paraphernalia. Tr. 21. That afternoon, he and other law enforcement officers executed the warrant by entering an open screen door leading into the foyer of the premises. Tr. 24. There were three black females, two black males and a baby in a small living room next to the foyer. Tr. 23-24. In the next room, the kitchen, a male threw two small packets of marijuana into the sink while attempting to flee through the back door. Tr. 24, 27. Trooper Miscannon found a scale, baggies and a cutting agent in the kitchen which drug traffickers use to dilute their substances in order to maximize profits. Tr. 28-29.

Johnson was sitting on a chair in the living room. Tr. 50. Corporal James Heins discovered a bag on the floor in plain view directly below Johnson’s left hand containing 27 bags of crack cocaine and 17 bags of white powder cocaine. Tr. 50-52,62. No other person was near Johnson’s chair. Tr. 55, 60. There were also brass knuckles and a knife on the floor, Tr. 31, 44, and a brown sandwich bag on a television stand in the comer containing clear, blue and green plastic bags. Tr. 30, 44. Another female in the living room had four bags of marijuana on her person, and a trooper recovered a bag next to her containing ten baggies of cocaine. Tr. 75-76.

There were no dmgs on Johnson’s person, but he was carrying $234 in cash and two cellphones in his pockets. Tr. 51, 63-64. There was no indication that he resided at the premises. Tr. 51, 55. The police did not test the bag on the floor next to Johnson or the baggies inside for fingerprints, because they have never successfully identified fingerprints on baggies of controlled substances. Tr. 52, 56. There was no evidence that the officers found paraphernalia commonly associated with consumption of cocaine on Johnson’s person.

After his arrest, Johnson acknowledged at the State Police barracks that his nickname was “Shake”. Trooper Miscannon referred to him in his presence as “Shake,” and Johnson never denied that “Shake” was his nickname or fail to respond when that nickname was used. Tr. 56.

Trooper Michael Skahill, the Commonwealth’s expert in the fields of illegal drugs, drug investigation, and drug distribution, opined that the 27 baggies of crack cocaine and 17 baggies of powder cocaine next to Johnson were for distribution, not mere possession, because of the following combination of details: (1) the drugs were individually packed for retail distribution, (2) each bag was worth $20.00, (3) they were packaged in small amounts because addicts are not able to purchase drugs in bulk, (4) Johnson had two prepaid cellphones, (5) it is common practice for drug traffickers to use multiple prepaid cellphones to prevent non-consensual interceptions of conversations by law enforcement, (6) Johnson had $234 in cash on his person, (7) it is common practice for drug traffickers to carry street denominations on their person, (8) there were clear, new and unused zip-lock baggies in the living room, a common “tool” of retail drug distribution, and (9) there was a cutting agent and a digital scale used to divide up drugs for distribution. Tr. 105, 108-09.

1. The evidence was sufficient to support Johnson’s conviction for PWID.

PWID requires proof beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. Commonwealth v. Conaway, 791 A.2d 359, 362 (Pa. Super. 2002). The Commonwealth may establish the essential elements of the crime wholly by circumstantial evidence; all facts and circumstances surrounding the possession are relevant. Commonwealth v. Drummond, 775 A.2d 849, 853-54 (Pa. Super. 2001). Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant. Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003).

The first element of PWID is proof of possession. Since the officers did not find drugs on Johnson’s person, the Commonwealthmustprovethatheconstructivelypossessed the drugs found near his chair. Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2002) (“As the drugs were not found on [ajppellant’s person, the Commonwealth was required to establish that he constructively possessed the crack cocaine”). Constructive possession is “a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not.” Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (Pa. 1986). Constructive possession is “conscious dominion,” that is, the power to control the contraband and the intent to exercise that control. Commonwealth v. Macolino, 503 Pa. 201, 206, 469 A.2d 132, 134 (Pa. 1983); Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001). It may be inferred from the totality of the circumstances using circumstantial evidence, Macolino, supra, 469 A.2d at 134, and it may be found “in one or more actors where the item in issue is in an area of joint control and equal access.” Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 550 (Pa. 1992). Mere presence at the scene or mere proximity of controlled substances in close proximity to the defendant, however, is not sufficient to prove constructive possession. Commonwealth v. Keblitis, 500 Pa. 321, 324, 456 A.2d 149, 151 (Pa. 1983).

There is sufficient evidence of constructive possession to support Johnson’s conviction for PWID. The premises had been under police surveillance for one month for suspected drug-related activities. Trooper Miscannon saw Johnson enter the premises on two occasions without a key and without knocking during the period of police surveillance. On January 8, 2010, when law enforcement executed the search warrant, Johnson was within arm’s reach of the baggies of cocaine and crack that Corporal Heins seized in the living room of the premises. The drugs were in plain view; nobody else was near them except Johnson. A knife, brass knuckles and empty bagging materials were also nearby. Other individuals in the living room and kitchen were in possession of, or attempting to hide or discard, marijuana or cocaine, and there were cutting agents and a digital scale in the kitchen. There were no items suggesting personal consumption of the drugs.

Standing alone, Johnson’s proximity to controlled substances and drug-related objects does not establish constructive possession. But there is more. Johnson had on his person two prepaid cellphones and $234 in cash - staple items of drug dealers which explain his relationship to the drugs in his proximity. Cf. United States v. Loney, 219 F.3d 281, 289 (3d Cir. 2000) (citing United States v. Gomez-Arrellano, 5 F.3d 464, 466-67 (10th Cir.1993) (“a weapon’s physical proximity to narcotics may be sufficient to provide the nexus required between the weapon and the drug charges”). Since Johnson sat next to 44 baggies of cocaine and crack that were in plain view, and nobody else was near these baggies, and he had well-known tools of the drug dealing trade on his person, and all events took place at a location infested with other drugs, baggies, and distribution mechanisms, common sense dictates that he had dominion and control over the 44 baggies at his feet.

Having established that Johnson was in constructive possession of the 44 baggies of drugs, it follows under these circumstances that he possessed the drugs with intent to distribute them. The Commonwealth’s expert testified convincingly that the division of the drugs into 44 baggies and the discovery of cellphones and cash on Johnson’s person demonstrated his intent to sell the drugs. It also is significant that there was no paraphernalia on Johnson’s person commonly associated with personal consumption of cocaine. See e.g., Commonwealth v. Conaway, 791 A.2d 359, 363 (Pa. Super. 2002) (evidence sufficient to sustain PWID conviction, since 60 baggies of crack cocaine were found in apartment rented by defendant and police found no drug paraphernalia indicative of personal use); Commonwealth v. Torres, 421 Pa. Super. 233, 238, 617 A.2d 812, 814 (Pa. 1992), app. denied, 535 Pa. 618, 629 A.2d 1379 (Pa. 1993) (evidence sufficient to support PWID conviction where defendant possessed 4.63 grams of cocaine in 17 individual packets, $236 in currency, and arresting officer did not discover any drug paraphernalia commonly associated with consumption of cocaine and expert witness testified that in his opinion above-mentioned facts indicated that defendant possessed cocaine with intent to deliver, rather than for his own personal use); Commonwealth v. Dargon, 72 D. & C. 4th 395, 417 (Lackawanna Cty. 2005) (evidence of PWID sufficient where defendant had actual or constructive possession of 60 individual bags of heroin, 26 grams of crack cocaine and 5.2 grams of cocaine hydrochloride, there was no paraphernalia associated with drug consumption, there was serialized “buy money” in car seat last occupied by defendant, and he was in possession of $1,092 in cash).

2. The evidence was sufficient to support Johnson’s conviction for conspiracy.

To sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and (3) an overt act was done in furtherance of the conspiracy. Commonwealth v. Murphy, 795 A.2d 1025 (Pa. Super. 2002), aff’d, 577 Pa. 275, 844 A.2d 1228 (Pa. 2004). Circumstantial evidence may provide proof of the conspiracy. Commonwealth v. Davalos, 779 A.2d 1190 (Pa. Super. 2001), appeal denied, 567 Pa. 756, 790 A.2d 1013 (Pa. 2001). “The conduct of the parties and the circumstances surrounding such conduct may create a ‘web of evidence’ linking the accused to the alleged conspiracy beyond a reasonable doubt.” Commonwealth v. Morton, 355 Pa. Super. 183, 512 A.2d 1273, 1275 (Pa. 1986), appeal denied, 514 Pa. 624, 522 A.2d 49 (Pa. 1987). Additionally, an agreement can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail. Commonwealth v. Greene, 702 A.2d 547, 554 (Pa. Super. 1997).

The circumstantial evidence herein shows that Johnson conspired to sell controlled substances with other persons inside the crack house. Prior to the search warrant, Johnson had twice entered the premises without a key or knocking, demonstrating that he enjoyed some degree of control over this location. At the time of the search, he was sitting in the living room in constructive possession of 44 baggies of crack and cocaine and in physical possession of cellphones and cash. There were brass knuckles and a knife on the living room floor and baggies on a television stand in the comer. Three females and two males were in the living room with Johnson. One female had four bags of marijuana on her person and ten baggies of cocaine next to her. Another male who attempted to escape during the search discarded two bags of marijuana in the kitchen next to the living room. There also was a scale, baggies and a cutting agent in the kitchen but no evidence suggesting personal consumption. Viewed collectively, Johnson’s access to the premises, the assorted drugs, weapons and paraphernalia held by other persons in the living room and kitchen, the cellphones and cash on defendant’s person and the drugs in his constmctive possession demonstrate that he was collaborating with the other individuals to sell the drugs in his and their possession. Commonwealth v. Braswell, 2007 WL 5004350 (York Cty. 2007) (sufficient evidence existed to convict defendant for criminal conspiracy to possess with intent to deliver cocaine; officers executed a search warrant on residence, defendant and coconspirator were found sleeping in residence and mail addressed to defendant was found in residence, during search officers uncovered 15.12 grams of cocaine and 61.2 grams of marijuana, numerous pieces of packaging material, and four cellular telephones and over $6,000 in cash, and no drug use paraphernalia was found in residence).

3. The evidence was sufficient to sustain Johnson’s conviction for possession of drug paraphernalia.

Section 780-113(a)(32) of the Controlled Substance, Drug, Device and Cosmetic Act prohibits

[t]he use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act. 35 Pa.C.S. § 780-113(a)(32).

“Drug paraphernalia” means all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act. It includes, but is not limited to

(1) Kits used, intended for use or designed for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived.
(2) Kits used, intended for use or designed for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances.
(3) Isomerization devices used, intended for use or designed for use in increasing the potency of any species of plant which is a controlled substance.
(4) Testing equipmentused, intended for use or designed for use in identifying or in analyzing the strength, effectiveness or purity of controlled substances.
(5) Scales and balances used, intended for use or designed for use in weighing or measuring controlled substances.
(6) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use or designed for use in cutting controlled substances.
(7) Separation gins and sifters used, intended for use or designed for use in removing twigs and seeds from or in otherwise cleaning or refining marihuana.
(8) Blenders, bowls, containers, spoons and mixing devices used, intended for use or designed for use in compounding controlled substances.
(9) Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances.
(10)Containers and other objects used, intended for use or designed for use in storing or concealing controlled substances.
(11)Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injected controlled substances into the human body.
(12) Obj ects used, intended for use or designed for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:
(i) Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls.
(ii) Water pipes.
(iii) Carburetion tubes and devices.
(iv) Smoking and carburetion masks.
(v) Roach clips; meaning objects used to hold burning material such as a marihuana cigarette, that has become too small or too short to be held in the hand.
(vi) Miniature cocaine spoons and cocaine vials.
(vii) Chamber pipes.
(viii) Carburetor pipes.
(ix) Electric pipes.
(x) Air-driven pipes.
(xi) Chillums.
(xii) Bongs.
(xiii) Ice pipes or chillers.
In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, statements by an owner or by anyone in control of the object concerning its use, prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance, the proximity of the object, in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue of controlled substances on the object, direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this act, the innocence of an owner or of anyone in control of the object, as to a direct violation of this act should not prevent a finding that the object is intended for use or designed for use as drug paraphernalia, instructions, oral or written, provided with the object concerning its use, descriptive materials accompanying the object which explain or depict its use, national and local advertising concerning its use, the manner in which the object is displayed for sale, whether the owner, or anyone in control of the object, is a legitimate supplier' of like or related items to the community, such as a licensed distributor or dealer of tobacco products, direct or circumstantial evidence of the ratio of sales of the objects to the total sales of the business enterprise, the existence and scope of legitimate uses for the object in the community, and expert testimony concerning its use.

35 Pa.C.S. § 780-102.

As discussed above, the baggies on the television stand and the cutting agent and digital scale in the kitchen help explain Johnson’s relationship to the drugs at his feet (constructive possession). A trickier question, however, is whether Johnson was in constructive possession of the items on the television stand and in the kitchen. Fortunately, the court need not wander into this thicket, because the evidence already demonstrates Johnson’s constructive possession of other paraphernalia, namely the baggies at his feet containing cocaine and crack. See 35 Pa.C.S. § 780-102(10) (drug pararaphemalia includes “containers and other objects used, intended for use or designed for use in storing or concealing controlled substances”). For this reason alone, the court properly found Johnson guilty of possession of drug paraphernalia.

IV. Conclusion

Therefore, the court recommends that Johnson’s judgment of sentence be affirmed.

      . Trooper Skahill opined that one phone was a Boost mobile phone and the other was an Metro PCS. Tr. 111-12. A consumer can purchase either type of phone with blocks of prepaid minutes at a Wal-Mart or Sprint store without providing any subscriber information. Tr. 105, 113. When the consumer uses up the minutes, he/she can throw the phone away. Tr. 113.


author: WORTHINGTON, J,

text:
    Heller v. Dep’t of Transportation

      C.P. of Monroe County,
    no. 6390 CIVIL 2010.

      Robert J. Kopacz, for plaintiff.

      Phillip L. Zulli, for Commonwealth.
    November 12, 2010
   WORTHINGTON, J,

'The matter before this court is Dale Heller’s t/d/b/a Dale’s auto sales (petitioner) motion for supersedeas and petition for review of an order of the department of transportation (department) that terminated petitioner’s agent service agreement.

The undisputed facts of this matter are as follows: pursuant to 75 Pa.C.S. §§7501 et seq., the department and petitioner entered into an agent services agreement (agreement) on October 28, 2004. In this agreement, the department provided petitioner with the authority to issue temporary registration cards, plates, permits or other products designated by the department. Agreement at ¶¶ 1 -3. Under a heading entitled “authority to provide agent services[,]” both parties agreed that “[t]he department will provide [petitioner] with temporary registration cards, plates, permits or other products designated by the department as necessary to allow [petitioner] to offer agent services to consumers in the Commonwealth.” Agreement at ¶1 (removed capitalization from heading). The agreement further provided that petitioner “may charge a reasonable service fee, in addition to department fees, for the processing and issuance of temporary registration cards, plates, permits or other products designated by the department.” Agreement at ¶3.

In addition, the agreement addressed numerous aspects of petitioner’s agent service. For example, the agreement provided requirements for petitioner’s hours of operation, handling of registration products designated by the department, staffing, parking availability, training, posting of signs and information, timing of service, filing of a bond, auditing and inspecting petitioner’s facility and records, having certain telecommunication services at the facility, establishing penalties, and other requirements. See generally agreement at ¶¶1-33. The agreement contained a merger clause. Agreement at ¶42. Additionally, the agreement provided that it could be “amended at any time by letter agreement executed by both parties.” Agreement at ¶43. Neither party at any time executed such letter agreement.

On or about January 31, 2006, the department issued a newsletter which stated in relevant part:

Effective January 31, 2006, the department introduced a change to the proof of identification an agent may accept for motor vehicle titling and registration document. In addition, the address requirements were changed. Information concerning the Pennsylvania ID and Pennsylvania address requirements was provided in the driver and vehicle service update edition 06-02. Brief of petitioner, dated 09/27/2010, at 4; Motion for supersedeas, dated 08/16/2010, at 7.

Furthermore, the department in 2009 issued a bulletin that stated in part: “In January 2006, PennDOT introduced changes to Pennsylvania address and ID requirements. These changes were put in place to secure the process to deter fraud and address concerns with non-Pennsylvania residents titling and registering vehicles in the Commonwealth.” Brief of petitioner, dated 09/27/2010, at 4 (emphasis omitted); motion for supersedeas, dated 08/16/2010, at 7 (emphasis omitted).

On March 12, 2010, pursuant to paragraph 26 of the agreement, the department conducted an audit of petitioner’s agent service operations. As a result of this audit, on June 10, 2010, the department terminated petitioner’s agent service agreement after it determined petitioner “accepted a fraudulent or unacceptable proof of identification for...approximately 91 applications” of temporary registration cards, plates, permits or other products designated by the department. The department asserted that this violated paragraphs 30(1) and 33 of the agreement. Department’s order, dated 06/10/2010, at 1.

In the department’s order, it listed a sampling of 10 cases out of the alleged 91 violations. Department’s order, dated 06/10/2010, at 1-2. With respect to these cases, petitioner submitted to this court the documentation that he accepted for these applications. For each application, petitioner accepted a Pennsylvania driver’s license from one co-applicant and either an “international driving document” or “international driving license” for the second co-applicant. See brief of petitioner, dated 07/09/2010, at exhibit’s C-L. At petitioner’s hearing, the department argued that such conduct constitutes accepting fraudulent or unacceptable proof of identification because petitioner did not accept only a Pennsylvania driver’s license or its equivalent in violation of the department’s identification policy.

The department informed petitioner that he had a right to appeal the termination of his agreement pursuant to the general rules of administrative practice and procedure. Department’s order, dated 06/10/2010, at 2 (citing 2 Pa.C.S. §§501-508; 1 Pa. Code Part II; 67Pa. Code chapter 491). In addition, the department informed petitioner that he could request a meeting with the department to present mitigating circumstances or factors in an attempt to avoid the termination of his agent service agreement. Department’s order, dated 06/10/2010, at 2. Petitioner initiated his appeal consistent with this procedure, but he later withdrew such appeal, arguing that jurisdiction was proper before the court of common pleas pursuant to §1377 of the vehicle code.

In petitioner’s motion for supersedeas and appeal of the department’s order, he raises the following arguments: (1) as a threshold matter, jurisdiction is proper before this court, (2) the department’s order terminating his authority to issue registration cards or plates is not valid because the department has no legal authority to require petitioner to accept only a valid Pennsylvania photo driver’s license or its equivalent before issuing registration cards or plates, (3) related to his legal argument, the department is attempting to impose an administrative policy without having properly followed the regulatory rulemaking process pursuant to the regulatory review act, 71 P.S. §745.1, et seq., (4) even if found to have committed an offense, the agent service agreement provides for a less severe sanction, (5) the department is attempting to impose an immigration policy in violation of the Commonwealth’s police powers, the supremacy clause and the fourteenth amendment to the United States constitution, and (6) the department should be limited to presenting evidence only on the cases it listed within its order.

Before addressing petitioner’s threshold jurisdiction issue, we note that “when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b). Furthermore, “[wjords and phrases shall be construed according...to their common and approved usage.” 1 Pa.C.S. §1903(a). “[Wjhen the language of a statute is clear and unambiguous, the judiciary must read its provisions in accordance with their plain meaning and common usage.” Commonwealth v. Bell, 512 pa. 334, 339, 516 A.2d 1172, 1175 (Pa. 1986). When terms are not defined in statutes, it is permissible for “[cjourts of Pennsylvania... [to] use dictionaries as source material to determine the common and approved usage of terms.” Therres v. Zoning Hearing Bd. of Borough of Rose Valley, 947 A.2d 226, 230 (Pa. Cmwlth. Ct. 2008) (citing Philadelphia Eagles Football Club, Inc. v. City of Philadelphia, 573 Pa. 189. 220, 823 A.2d 108, 127 n.31 (Pa. 2003)).

According to section 1377 of the vehicle code, “any person...whose...authority to issue registration cards or plates has been denied, suspended or otherwise sanctioned by the department shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” 75 Pa.C.S. § 1377(a). Pursuant to title 42, our general assembly has provided, “[E]ach court of common pleas shall have jurisdiction of appeals from final orders of...[d]eterminations of the department of transportation appealable under the following provisions of title 75 (relating to vehicles): section 1377 (relating to judicial review).” 42 Pa.C.S. §933(a)(1)(h). Applying this clear and unambiguous language, we find that we, as the court of common pleas, has jurisdiction over appeals arising under §1377 of the vehicle code, which includes an appeal by a person whose authority to issue registration cards or plates has been “otherwise sanctioned” by the department.

The language “otherwise sanctioned” is not defined within the vehicle code or the department’s regulations. Additionally, the parties fail to cite, and our research did not reveal, a case defining this phrase. Thus, we turn to dictionaries as source material to determine this phrase’s common and approved usage. See Therres, 947 A.2d at 230. Black’s Law Dictionary defines “sanction” to mean, as used in the verb form, “[t]o penalize by imposing a sanction.” Black’s law dictionary 1369 (8th ed. 2004). As used as a noun, “sanction” is defined to mean, “[a] penalty or coercive measure that results from failure to comply with a law, rule, or order.” Id. at 1368. Similarly, Webster’s new international dictionary defines “sanction” to mean, “[t]he detriment loss of reward, or other coercive intervention, annexed to a violation of a law as a means of enforcing the law.” Webster’s new international dictionary 2211 (2nd ed. 1934). Guided by these dictionary definitions, we find that to constitute “otherwise sanctioned,” as the phrase is used in 75 Pa.C.S. §1377, a penalty or coercive measure must have been imposed on petitioner as a result of the department’s determination that petitioner failed to comply with the vehicle code or its regulations.

Applying the principles above to this case, we find that we have proper jurisdiction in this case. First, as the term is used in §1377, petitioner is a “person” who had the authority to issue registration cards or plates. On October 28, 2004, the department and petitioner entered into an agent services agreement. Under the heading within the agreement entitled “authority to provide agent services[,]” both parties agreed that “[t]he department will provide [petitioner] with temporary registration cards, plates, permits or other products designated by the department as necessary to allow [petitioner] to offer agent services to consumers in the Commonwealth.” Agreement at ¶1 (removed capitalization from heading). Furthermore, the agreement provided that petitioner “may charge a reasonable service fee, in addition to department fees, for the processing and issuance of temporary registration cards, plates, permits or other products designated by the department.” Agreement at ¶3. As such, it is clear from their agent services agreement that petitioner had the authority to issue registration cards or plates.

Second, petitioner’s authority to issue registration cards was “otherwise sanctioned by the department,” as this phrase is used in 75 Pa.C.S. §1377(a). On June 10, 2010, the department notified petitioner that it was “terminating [his] agent services agreement, effective immediately, for” violating paragraphs 30(1) and (33) of their agreement. Department’s order, dated 6/10/2010, at 1. Although the department did not cite in this order to a specific section in the vehicle code or its regulations that petitioner violated, the department did state that it was terminating petitioner’s authority to issue registration cards or plates after it determined petitioner “accepted a fraudulent or unacceptable proof of identification for... approximately 91 applications.” Id. Due to this determination, petitioner’s authority was terminated. Using the language from Black’s law dictionary which defines “sanction,” we find that the department’s termination of petitioner’s authority to issue registration cards or plates constitutes a “penalty... that resulted] from [petitioner’s] failure to comply with a law, rule, or order” as determined by the department. See Black’s law dictionary 1368 (8th ed. 2004). As such, we find that petitioner was “otherwise sanctioned by the department” as the phrase is used in 75 Pa.C.S. § 1377(a).

We ultimately conclude that we have jurisdiction to hear petitioner’s motion for supersedeas and appeal of the department’s order. Section 933(a)(1)(h) of title 42 grants the court of common pleas with jurisdiction over appeals from final determinations of the department under §1377 of the vehicle code. Pursuant to §1377, we find that petitioner is a person whose authority to issue registration cards or plates has been otherwise sanctioned, which gives him the right to appeal to court of common pleas.

The department argues, however, that we do not have jurisdiction to hear petitioner’s appeal. Instead, the department asserts petitioner has arightto an administrative appeal under 2 Pa.C.S. §§501-508 (relating to general rules of administrative practice and procedure of administrative agencies). In support of this argument, the department relies on Moore v. Department of Transportation, 989 A.2d 49 (Pa. Cmwlth. Ct. 2009), which held that the administrative agency law provides the default procedure for appeals from department orders terminating agent and messenger services agreements. Id. at 51-52. Moore is similar in many respects to this case but ultimately is distinguishable.

In Moore, the petitioner had both an agent service agreement and a messenger service agreement, which the department terminated via an order after determining Moore accepted a fraudulent driver’s license as proof of identification. Id. at 49-50. Following the department’s instructions in its order, Moore initiated his appeal by first meeting with the department to present mitigating circumstances in an attempt to avoid the termination of his agreements. Id. at 50-51. The department denied this attempt and upheld its order. Id. at 51.

Appealing this decision, Moore petitioned the Commonwealth court arguing he had a right to a hearing before an impartial party as required by Pennsylvania’s rules of administrative procedure. Id. The department, on the other hand, argued Moore did not have any appellate rights. First, the department asserted that, pursuant to 75 Pa.C.S. §7501, Moore entered into contracts with the department, which thus divested Moore’s appellate rights because he had no personal or property right to contract with the department in the first place. The department argued entering these contracts was not the same as the department issuing a license to a person, so any appellate rights that may arise from an adverse action on such license would not exist. Id. Second, the department argued Moore’s appellate rights were eliminated by the general assembly when it deleted 75 Pa.C.S. §7503. Id. This section previously provided a person with a right to appeal the termination of his or her messenger service agreement. Id.

Ultimately, our Commonwealth court rejected the department’s arguments and denied its motion to Quash Moore’s appeal. Id. at 52. Despite the language within chapter 75 of the vehicle code and the department characterizing the agent and messenger service agreements as contracts, the court held Moore’s agreements had the legal effect of licenses, not contracts, and thus permitted Moore to appeal any adverse action taken on behalf of the department. Id. Also, the court concluded the deletion of §7503 did not divest Moore’s appellate rights; rather, the court held this merely placed the administrative agency law as the default procedure for appealing the termination of messenger service agreements. Id. at 52 (quoting 2 Pa.C.S. §702).

Although Moore is factually similar to our present case, we respectfully disagree with the department that it controls here. First, the Commonwealth court in Moore never addressed the legal issue raised by petitioner, i.e., the applicability of 75 Pa.C.S. §1377. We, however, must address this issue. In this regard, we find that Moore does not stand for the proposition that petitioner only has a right to an administrative appeal under 2 Pa.C.S. §§501-508. That is not what the court in Moore held; instead, the court merely held that the general assembly’s deletion of 75 Pa.C.S. §7503 “just placed the procedure for [such] appeal within the administrative agency law.” Moore, 989 A.2d at 52. Thus, the administrative agency law is simply the “default procedure[,]” which would allow for another statute to provide a more specific appellate procedure.

Section 1377 of the vehicle code provides the more specific appellate procedure for petitioner’s appeal. Specifically, the administrative agency law creates an exception for appeals arising under section 1377 of the vehicle code. Section 501 of title 2 (administrative law and procedure) states:

(a) General rule. — Except as provided in subsection
(b), this subchapter shall apply to all Commonwealth agencies.
(b) Exception. — None of the provisions of this subchapter shall apply to:
(3) Proceedings before the department of transportation involving matters reviewable under 42 Pa.C.S. §933 (relating to appeals from government agencies).

2 Pa.C.S. §501(a), (b)(3). As we found above, 42 Pa.C.S. §933 provides the court of common pleas with jurisdiction over appeals arising under section 1377 of the vehicle code, and petitioner’s appeal arises under this section. See 42 Pa.C.S. §933(a)(l)(ii). Therefore, although Moore held that the administrative agency law provides the default procedure for appealing department orders terminating agent and messenger service agreements, our general assembly has provided for a more specific appellate procedure for when the department “otherwise sanctions,” i.e. terminates, a person’s authority to issue registration cards or plates. See 75 Pa.C.S. §1377(a). Therefore, we find that petitioner’s appeal is properly before us. must address petitioner’s motion for supersedeas and his statutory appeal from the department’s order of termination of the agent service agreement. Petitioner represented to this court that he is not disputing the underlying factual allegations made by the department. Instead, petitioner’s argument is made solely on a legal basis. After hearing and considering the arguments of both parties, we are prepared to address the merits of petitioner’s appeal in this opinion.

Because we find that jurisdiction is proper, we next

The legal issue raised by petitioner is whether petitioner, as a person who has the authority to issue registration cards or plates, is legally required to accept only a valid Pennsylvania photo driver’s license or its equivalent as a prerequisite to issuing registration cards or plates. Petitioner argues that there is no provision within the vehicle code, the department’s regulations, or his agent services agreement that establishes such requirement. Instead, petitioner asserts that the department is improperly attempting to impose this requirement via a newsletter and bulletin issued by the department.

In chapter 75 of the vehicle code, our general assembly established the authority for messenger and agent services and further delegated to the department the authority to establish regulations and contract language in order to carry out such services/authority. Section 7501 of the vehicle code provides, “The department shall enter into contracts for...agent services[,and]...[n]o person shall operate a[n]...agent service without a valid contract.” 75 Pa.C.S. §7501. “Every...agent service with whom a contract has been signed pursuant to this chapter shall be permitted to transact business with the department at the locations and facilities and during the hours of operation designated by the department. The department may prescribe such regulations as may be necessary for the administration of this chapter.” §7505 (emphasis added). Additionally, the vehicle code required the department to create a “messenger and agent advisory committee” for the purposes of developing “contract language and proposing] regulations governing messenger and agent services.” §7509 (emphasis added).

Our research revealed no provision within chapter 75 of the vehicle code that requires an issuing agent to accept only a Pennsylvania driver’s license or its equivalent as proof of identification. Neither the petitioner nor the department could point to such statute.

Furthermore, our research revealed no regulation promulgated by the department that requires an issuing agent to accept only a Pennsylvania driver’s license or its equivalent as proof of identification. Like chapter 75, neither the petitioner nor the department could point to such regulation.

Finally, our review of the agreement revealed no provision that requires an issuing agent to only accept Pennsylvania driver’s license or its equivalent as proof of identification. The department, however, points to two provisions that it believes provides it the authority to establish this requirement. First, the department points to paragraph 28 of the agreement where petitioner agreed that he and his employees would:

be bound by the provisions of 75 Pa.C.S. chapters 11 (relating to certificate of title and security interests, 13 (relating to registration of vehicles), 23 (relating to motor vehicle transaction recovery fund), §6114 (relating to limitation on sale, publication and disclosure of records), 75 (relating to authorization of agent and messenger services), and 67 Pa. Code chapter 43 (relating to temporary cards and plates), as well as the provision in this agreement. Where this agreement provides a more rigorous standard of conduct, the provisions of this agreement shall control.

Agreement at ¶28 (emphasis added). From this provision, the department directs us to section 1103.1 of the vehicle code, which provides:

Application for a certificate of title shall be made upon a form prescribed and furnished by the department and shall contain a full description of the vehicle, the vehicle identification number, odometer reading, date of purchase, the actual or bona fide name and address of the owner, a statement of the title of applicant, together with any other information or documents the department requires to identify the vehicle and to enable the department to determine whether the owner is entitled to a certificate of title, and the description of any security interests in the vehicle.

75 Pa.C.S. §1103.1(a) (emphasis added).

The department’s reliance on this statute is misplaced. In its representations to this court, the department explained it was addressing the issue of whether it has the “authority ... to require [petitioner] as a title agent to only accept valid Pennsylvania driver license or Pennsylvania identification card.” Department’s letter, dated 9/29/10, at 1 (emphasis added). Petitioner’s authority to issue registration cards or plates was not terminated as a “title agent” but was terminated as an “issuing agent.” The department’s regulations define an “issuing agent” as “A full agent or card agent, or a dealer or manufacturer, who has been authorized by the Bureau to issue temporary registration cards and plates.” 67Pa.Code §43.2; see also department’s order, at 1. Thus, the department’s characterization of this issue is not accurate.

Consistent with the department’s characterization, the department points us to a statute that applies to applications for certificates of title. See 75 Pa.C.S. §1103.1 (found within chapter 11, relating to certificate of title and security interests). Although the department accurately quotes statutory language that would permit the department to require an applicant to provide “information or documents...to identify the vehicle and to enable the department to determine whether the owner is entitled to a certificate of title,” the department fails to point to similar statutory language that applies to applications for registration cards or plates. See §1103.1. No similar provision is found within chapter 13 of the vehicle code, which relates to registration of vehicles, or within chapter 75, which relates to messenger and agent service agreements, or within any other statutory provisions referenced in the agreement. As such, the department’s reliance on §1103.1 is misplaced. We do not construe §1103.1 as providing the department with the authority to require petitioner to accept only Pennsylvania driver’s license or its equivalent as proof of identification before issuing registration cards or plates.

Next, the department argues that paragraph 6 of the agreement provides the department with the authority to establish the requirement at issue in this case by allowing it to unilaterally amend the agreement. Paragraph 6 states, “The department expressly reserves the right to amend this agreement to provide for the implementation of additional security measures as shall be determined to be required by the department in its discretion.” Again, the department’s reliance on this provision is misplaced.

First, the “implementation of security measures” referenced by paragraph 6 does not refer to what constitutes the proper documentation an issuing agent is required to accept. Instead, “security measures” refers to the department’s requirement that an agent must help protect his or her temporary registration cards, plates, permits, or other products from being stolen, lost, misplaced, or something similar. For example, the preceding sentence, which the department omits, requires that “[t]he facility shall include secure storage for temporary registration cards, license plates, permits, and other products designated by the department, as described in the [petitioner’s application and approved by the department.” Agreement at ¶6 (emphasis added). Later in the agreement, under the heading “security[,]” the agreement further requires that:

18. At the close of the hours of operation of the agent service, [petitioner] shall place all temporary cards, plates, permits or other products designated by the department in the place of secured storage approved by the department.
19. Supplies of temporary cards, plates, permits or other products designated by the department shall not be held or placed at any time on any workstation area within the grasp of the public. Individual temporary cards, plates, permits or other products designated by the department shall at no time be left unattended on any workstation area within the grasp of the public.
20. If temporary cards, registration plates, permits or other products designated by the department are lost or stolen, the [petitioner] must notify the department of the loss or theft immediately or the next business day after discovery of the loss. This notice shall be in the form of an affidavit and shall give complete details of the loss or theft of the materials. In the event of theft, the theft shall be reported to appropriate police officials within 48 hours of discovery of the theft.

Agreement at ¶¶18-20 (emphasis added). Paragraphs 6, 18, 19, and 20 are the only provisions in the agreement that relate to security or security measure requirements. The plain and unambiguous language of these provisions pertains to the proper physical handling of the department’s registration products, so that the registration products are protected from theft or negligent handling. In no way can these provisions be construed as giving the department the unilateral authority to amend the agreement to require an issuing agent to accept only Pennsylvania driver’s licenses or its equivalent as a prerequisite to issuing registration cards or plates. Such requirement is simply not a “security measure” as contemplated by paragraphs 6,18,19, and 20 of the agreement.

Second, paragraph 43 of the agreement establishes the procedure for amending the agreement. This provision states, “This agreement may be amended at any time by letter agreement executed by both parties.” Agreement at ¶43 (emphasis added). Neither the department nor the petitioner, however, presented this court with a letter agreement, executed by both parties, that amended the agreement to require petitioner to accept only Pennsylvania driver’s licenses or its equivalent as prerequisite to issuing registration cards or plates. Because paragraph 43 of the agreement prevents the department from having the unilateral authority to amend the agreement to establish such requirement and because neither party executed a letter agreement amending the agreement, we find that the agreement does not provide the department with the authority to require petitioner to accept only Pennsylvania driver’s licenses or its equivalent.

In conclusion, we find that the department does not have the authority to require petitioner, as a person authorized to issue registration cards or plates, to accept only a valid Pennsylvania photo driver’s license or its equivalent before issuing registration cards or plates. As such, the department’s order terminating his agent services agreement is not valid. There is not a nexus between any statute, regulation, or provision within the agreement and the department’s internal policy that issuing agents may accept only Pennsylvania driver’s licenses or its equivalent. This is despite the fact that the general assembly in chapter 75 of the vehicle code expressly gives the department the authority to promulgate regulations implementing the administration of agent services. See 75 Pa.C.S. §§7505, 7509. For whatever reason, however, the department has failed to promulgate a regulation or draft a contractual provision that established what constitutes acceptable forms of proof of identification that an issuing agent must accept before issuing temporary registration cards or plates.

For the foregoing reasons, we enter the following order:

ORDER

And now, November 12, 2010, after hearing and upon full consideration of petitioner’s motion for supersedeas and petition for review of an order of the department of transportation, it is hereby ordered that such motion is granted and such petition is sustained.

      . In this regard, the department has published a “fact sheet,” which lists the only forms of identification that the department contends is permissible for petitioner to accept as a prerequisite to issuing registration products designated by the department. The following comprise this list: (1) a valid Pennsylvania photo driver’s license, (2) a valid Pennsylvania photo identification card, (3) a valid Pennsylvania photo exempt driver’s license, (4) a valid Pennsylvania photo exempt identification card, or (5) a valid U.S. Armed Forces Common Access Card. Department of transportation, fact sheet: Acceptable proof of identification documents for completing motor vehicle forms 1 (July 2009), available at: http:// www.dmv.state.pa.us/pdotforms/factsheets/fs-idproof.pdf. For the purposes of this opinion, we will refer to (1) through (5) collectively as “Pennsylvania driver’s license or its equivalent.”

      . Paragraph 30(1) states:
      [Petitioner] agrees that if it is determined by the department that [petitioner] or any of its employees has engaged in any of the activity described in the following listing, such activity shall be considered breach of this agreement and operation of the agent service under this agreement may be terminated: (1) The agent service, one of its owners, officers or employees, has committed a fraudulent act including the fraudulent keeping of records, or the fraudulent completion of an application submitted to the department, or has failed to submit to the department completed applications and fees and taxes due the Commonwealth in connection with the issuance of the temporary cards or plates. Agreement at fat 30(1).
      Paragraph 33 states:
      The department may also terminate this agreement at any time for good cause shown, including, but not limited to, misrepresentation or fraud in the [petitioner’s application which formed the basis for this contract, or if the agent service is operated, managed, controlled or affiliated with a person who has been convicted of a felony involving dishonesty or breach of trust, who has had an agent, card agent, messenger service, or on-line messenger contract terminated by the department in the past, or who would be ineligible to be authorized to engage in providing agent services. Agreement at ¶at 33

      . Petitioner concedes that his authority to issue registration cards or plates was not denied or suspended. Thus, the only issue is whether the permanent termination of his authority to issue registration cards or plates constitutes “otherwise sanctioned,” as the phrase is used in §1377.

      . In further support of this interpretation, we are also guided by a cannon of statutory construction, esjudem generis, which provides that when general language is used as a catchall phrase in a statute, the interpretation of such language is restricted to the “things ... similar to those specifically enumerated in the language preceding the general expression[].” See Petty v. Hosp. Serv. Ass’n of Northeastern Pa., 967 A.2d 439, 446 (Pa. Cmwlth. 2009) (citing omitted). In this instance, “otherwise sanctioned” is preceded by “has been denied” and “suspended.” Section 102 of the vehicle code defines “suspend” to mean, “[t]o withdraw temporarily by formal action of the department any license, registration or privilege issued or granted by the department.” 75 Pa.C.S. §102. Neither the vehicle code nor the department’s regulations specifically define the phrase “has been denied.” Black’s law dictionary, however, defines “denial,” in part, to mean “a refusal or rejection” or “a deprivation or withholding.” Black’s law dictionary 466 (8th ed. 2004). Webster’s dictionary defines “deny,” in part, to mean “to refuse (one who asks)” or “to refuse to grant; to withhold.” Webster’s new international dictionary 700 (2nd ed. 1934). Under the doctrine of esjudem generis, these definitions indicate that the interpretation of “otherwise sanctioned,” as the term is used in §1377, should be restricted to mean something similar to the following: the department takes some formal action against a person that results in that person having a particular privilege taken away or not given initially. We are convinced that this then becomes a matter of degree, and the permanent termination of one’s authority to issue registration cards or plates is simply a more severe “sanction” as compared to having such authority “withdraw[n] temporarily,” i.e. suspended. Additionally, section 1377 of the vehicle code uses the term “revocation,” while section 102 of the vehicle code defines, “revoke” to mean “[t]o terminate by formal action of the department any license, registration or privilege issued or granted by the department. Following a period of revocation, the license, registration or privilege may not be restored except upon submission and acceptance of a new application.” 75 Pa.C.S. §102. This further convinces us that “otherwise sanction” would include the term “revocation,” which directly corresponds with petitioner’s penalty.

      . The vehicle code defines “person” as “a natural person, firm, corporation, association or corporation.” 75 Pa.C.S. §102. Petitioner is Dale R. Heller, a natural person, doing business as Dale’s auto sales.

      . The vehicle code treats these as distinct services. See 75 Pa.C.S. §§102,7501-75 (separately defining the services and distinguishing them when establishing requirement to enter contracts).

      . Section 7503 did not, however, address agent service agreements. The statute provided:
      (a) General Rule.-The department shall supervise messenger services and, after providing an opportunity for a hearing, shall suspend the authorization of any messenger service which it finds is not properly operated or which has violated or failed to comply with any of the provisions of this chapter or regulations adopted by the department. Any suspended certificate of authorization shall be returned to the department immediately. A suspended certificate may be restored on such terms and conditions, including the posting of additional bond, as the department shall deem advisable.
      (b) Judicial review. — Any person whose certificate of authorization has been denied or suspended under this chapter shall have the right to appeal to the court vested with jurisdiction of such appeals by or pursuant to title 42 (relating to judiciary and judicial procedure). The court shall set the matter for hearing upon 30 days’ written notice to the department and take testimony and examine into the facts of the case and determine whether the petitioner is entitled to a certificate of authorization or is subject to suspension of the certificate of authorization under the provisions of this chapter.
      75 Pa.C.S. §7503 (Deleted by 2002, Dec. 9, P.L. 1278, No. 152, §18).

      . Neither the department, Moore, nor the court sua sponte raised this issue. At the hearing on petitioner’s motion, petitioner suggested that Moore’s counsel did not raise this issue for strategic appellate reasons. Specifically, if Moore would have been successful in asserting the § 1377 argument, Moore would have been confronted with two appeals before two different tribunals. For his messenger services agreement, Moore would have had an administrative appeal under 2 Pa.C.S. §§501-508. For his agent services agreement, Moore would have an appeal in the court of common pleas pursuant to §1377. In order to avoid this bifurcated approach, petitioner stated Moore’s counsel chose to not raise the §1377 argument in an attempt to have his appeals heard before one tribunal.

      . As noted above, section 1377 of the vehicle code sets forth the specific procedure for us to follow. This section states:
      Upon application of the registrant and prior notice to the department, the court may grant a supersedeas from a revocation of registration or authority to issue registration. The court shall schedule the appeal for hearing upon 30 days’ written notice to the department, and thereupon take testimony and examine into the facts of the case and determine whether the petitioner is entitled to registration, subject to suspension of registration or other sanction under the provisions of this title or departmental regulations. 75 Pa.C.S. §1377.
      Because petitioner does not contest the factual allegations asserted by the department, his underlying legal argument is the same for his motion for supersedeas and his statutory appeal, and we heard argument and accepted legal memoranda from both parties on this issue, we see no reason to hold an additional hearing to readdress the merits of petitioner’s appeal.

      . Petitioner did cite to various regulations, arguing that they did not create such a requirement. For instance, pursuant to 67 Pa. Code §43.5, entitled “issuance of temporary registration cards,” the department established petitioner’s “duty to examine documents.” §43.5(d). This duty only referred to examining an applicant’s “driver’s license or other appropriate identification” when “the vehicle was acquired in this Commonwealth for transportation under its own power to another state for registration there.” §43.5(d)(2)(i)(C). No similar duty was created for any other circumstance. Later in this section, the department also requires petitioner to retain “a copy of the document used for identification” for at least three years at petitioner’s place of business. §43.5(f). The vehicle code does not define “document” but the department’s regulations, although not within 67 Pa. Code Chapter 43 (relating to temporary cards and plates), defines it to mean:
      Certificates of title, motor vehicle registrations or renewals, learners’ permits, drivers’ licenses or renewals, vehicle sales and use tax returns, duplicates of certificates of title, motor vehicle registrations or drivers’ licenses, inspection stickers, changes of address and applications and supporting documents, such as birth and death certificates, court orders, and the like.
      67 Pa. Code §255.2 (relating to messenger services). Here, the department broadly defines “document” rather than narrowly defining it to mean only a Pennsylvania License or its equivalent. We agree with petitioner that these regulations do not require, or provide the department with the authority to require, an issuing agent to accept only a Pennsylvania driver’s license or its equivalent as proof of identification.

      . Furthermore, to any extent the department attempts to argue that its bulletin and newsletter was a valid promulgation of a regulation, i.e. establishing a binding norm in which with petitioner was bound to comply, we reject such argument as it lacks merit. As noted above, the general assembly delegated the authority to the department to promulgate such regulations, and in order to do so, the department must follow the appropriate rulemaking procedures established by our general assembly. See 42 P.S. §1201, et seq. (Commonwealth documents law); 71 P.S. §745.1, et seq. (Regulatory review act). The department did not follow these procedures. As such, any argument that its bulletin and newsletter establishes a standard of conduct which has the force of law lacks merit.

      . Because we find the department lacked the authority to require petitioner to accept only Pennsylvania driver’s license or its equivalent, we need not address petitioner’s remaining arguments for the disposition of this matter. Such a regulation or provision may change the outcome of petitioner’s argument.


author: PICCIONE, J.,

text:
    Burkes v. Buswell

      C.P. of Lawrence County,
    no. 10870 of 2010, C.A.

      Charles W. Garbett, for plaintiff.

      LeeAnnA. Fulena, for defendant.
    December 9, 2010
   PICCIONE, J.,

Before the court for consideration are preliminary objections filed on behalf of the defendant Fred Buswell IV (hereinafter, “defendant”), in response to the complaint of plaintiff Amy Burkes (hereinafter, “plaintiff’)- After hearing argument on defendant’s preliminary objections and considering of the applicable case law, the court denies defendant’s preliminary objections for the following reasons.

According to plaintiff’s complaint, on the afternoon of June 12, 2008, the plaintiff was riding as a passenger on a 2008 Harley Davidson motorcycle operated by the defendant. The parties were traveling in a southerly direction on Neal Street in the City of New Castle when the defendant lost control of his motorcycle and crashed into a guardrail. Plaintiff alleges that the defendant was operating the motorcycle in a negligent, careless and reckless manner, and, therefore, the accident was a direct and proximate cause of the defendant’s conduct. Plaintiff further alleges that defendant was under the influence of alcohol while operating the vehicle, thereby establishing willful and/or wanton misconduct and total disregard of the health, safety and welfare of the plaintiff. Plaintiff’s complaint sets forth allegations that she sustained severe physical and mental injuries as a result of the accident taking place on June 12, 2008. Count 15 of the complaint requests punitive damages “based on defendant]] operating his motorcycle while under the influence of alcohol.” On July 23, 2010, defendant filed preliminary objections claiming that plaintiff’s complaint fails to state a claim which would support an award of punitive damages. Oral arguments were heard by this court on October 24, 2010.

When a court is presented with preliminary objections to a complaint, all material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true. Hess v. Fox Rothchild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007); Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). The court must further determine, as a matter of law, whether, based on the facts averred in the complaint, the plaintiff may be entitled to recovery. Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999). Preliminary objections should only be sustained when the court determines with certainty that, upon the facts averred, the law will not permit the recovery sought by the plaintiff. R. W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (Pa. 2005); Bourke v. Kazara, 746 A.2d 642, 643 (Pa. Super. 2000).

The only issue presented to this court for resolution is whether the allegations, as set forth in Plaintiff’s complaint, allow the plaintiff to preserve a claim for punitive damages. As a general guide in this area, Pennsylvania recognizes the principles set forth in Section 908(2) of the Restatement (Second) of Torts:

(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant. See Chambers v. Montgomery, 411, 79, 339, 344, 192, A.2d 355, 358 (Pa. 1963).

Thus, under Pennsylvania law, “punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.” Id. (quoting comment b to section 908[1] of the Restatement (Second) of Torts). See Chambers v. Montgomery, 411 Pa. 339, 344 192 A.2d 355, 358 (Pa. 1963).

In the case sub judice, the defendant argues that plaintiff’s complaint fails to set forth specific allegations that support a finding that the defendant acted with the evil intent necessary to support an award of punitive damages. Defendant further argues that “[pjunitive damages are not available for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment” and cites Martin v. John-Manville Corp., 508 Pa. 154, 170, 494 A.2d 1088, 1097 (Pa. 1985) (approved in relevant part by SHV Coal. Inc. v. Continental Grain Co., 526 Pa. 489, 493-494, 587 A.2d 702, 704-705 (Pa. 1991)). However, in SHV Coal. Inc., the Supreme Court went on to quote the restatement (second) of torts, comment b following section 908 as set forth above. The SHV Coal, Inc. court further cited the case of Focht v. Rabada, 268 A.2d 157 (Pa. Super. 1970), which was relied on by the Honorable President Judge Dominick Motto in the case of Brueckner v. Stewart, No. 10617 of 2006, C.A. (C.P. Lawrence December 20, 2006), as cited by the plaintiff in support of her legal argument that the complaint has sufficient factual averments to support a claim of punitive damages.

In Brueckner, the plaintiffs were involved in an automobile accident with the defendant. Plaintiffs sought to recover punitive damages based on the reckless indifference and total disregard displayed by the defendant when he operated his vehicle while under the influence of alcohol. Defendant filed preliminary objections to the plaintiffs’ complaint, arguing that the complaint failed to sufficiently allege a claim for punitive damages. The trial court relied on the case of Focht v. Rabada, 268 A.2d 157 (Pa. Super. 1970) in determining that the plaintiffs’ complaint sufficiently pled circumstances which would warrant a claim for punitive damages.

The Focht court determined that, in certain circumstances, driving under the influence of alcohol may be deemed “outrageous conduct” and a “reckless indifference” to the interest of others, allowing for the imposition of punitive damages. Id. at 40. The Focht court further determined that reckless indifference could be found where a defendant acted in such a manner that involved a high degree of chance that harm would result to another person in close proximity to the defendant. Id. at 39.

Like the Brueckner case and the Focht case, the case sub judice involves a defendant who operated a motor vehicle, specifically a motorcycle, while under the influence of alcohol. The risks assumed by a person who chooses to operate a motor vehicle under this type of condition may be so obvious and the chance of harm to another person so great that misconduct may be established without the plaintiff having to establish motive or intent. Focht, 268 A.2d at 41. Furthermore, the complaint states that the defendant was operating his motorcycle at 2:24 a.m. on what was described to be a “curved” road. The court can logically infer that the combination of the defendant’s driving a motorcycle while intoxicated, on a curved road, so late at night and with a passenger on the motorcycle constituted “outrageous conduct” and a “reckless indifference.” As such, defendant’s preliminary objections are dismissed as set forth in the accompanying order of court.

ORDER OF COURT

And now, December 9, 2010, this case having been before the court on October 25, 2010 for oral argument on preliminary objections filed by the defendant, with the parties appearing through their counsel, the plaintiff, Amy Burkes being represented by Charles W. Garbett, Esquire, and the defendant being represented by LeeAnn A. Fulena, Esquire, and after a consideration of the arguments and briefs submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjuged and decreed as follows:

1. Defendant’s preliminary objections are hereby overruled pursuant to the attached opinion.
2. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.