author: KOPRIVA, J,

text:
    Commonwealth v. Ross
    C.P. of Blair County,
    no. 2004 CR 2038.

      David Gorman, district attorney, for Commonwealth.

      Theodore J. Krol and Phillip Robertson, for defendant.

      April 13, 2005
   KOPRIVA, J,

— The Commonwealth filed their motion for admission of bad acts evidence December 8, 2004. A hearing was held on the motion February 10, 2005. The parties were given 10 days to file supporting briefs. The court received defendant’s memorandum in opposition of the Commonwealth’s motion to permit bad acts evidence February 18, 2005, which was followed by the Commonwealth’s brief in support of its motion in limine seeking admission of prior bad acts on or about March 1, 2005.

The defendant is charged with one count of criminal homicide, one count of aggravated assault, one count false imprisonment, one count unlawful restraint, one count involuntaiy deviate sexual intercourse, and other charges based on events which occurred on or about June 27, 2004, resulting in the death of Tina Miller.

In the present case, the Commonwealth seeks to have the defendant’s prior assaults on four other women admitted for the limited purpose of proving the defendant’s intent, motive, identity, and common scheme, plan or design in committing the offenses.

DISCUSSION

The law pertaining to evidence of criminal conduct, other than that for which a defendant is being tried, was summarized by the Pennsylvania Supreme Court in Commonwealth v. Billa, 521 Pa. 168, 177, 555 A.2d 835, 841 (1989), as follows:

“Evidence of a defendant’s distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, [302,] 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant’s distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason, and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this court has recognized in the past as legitimate bases for admitting evidence of a defendant’s distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant’s prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called ‘res gestae’ exception). See Commonwealth v. Lark, supra 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).”

The Pennsylvania Supreme Court went on to explain in Billa that prior bad acts, though admissible, must be accompanied by cautionary instructions to the jury. Billa at 179-80, 555 A.2d at 843.

The above was codified in 1998 as set forth in Rule 404(b) of the Pennsylvania Rules of Evidence. The basic principles of Pa.R.E. §404 are consistent with prior Pennsylvania case law. Pa.R.E. §404, comments.

A trial court has broad discretion in admitting or excluding evidence, and such a decision will only be overturned if there is an abuse of such discretion. Commonwealth v. Schwartz, 419 Pa. Super. 251, 263, 615 A.2d 350, 356 (1992), citing Commonwealth v. Meadows, 381 Pa. Super. 354, 553 A.2d 1006 (1989). However, fairness dictates that courts should be ever vigilant to prevent the introduction of prior criminal acts under the guise that it is being offered to serve some purpose other than to demonstrate the defendant’s propensity to commit the crime charged. Commonwealth v. Spruill, 480 Pa. 601, 607, 391 A.2d 1048, 1051 (1978). We give analysis to each exception the Commonwealth raises.

INTENT, MOTIVE AND MALICE

The Commonwealth argues that since defendant has been charged with criminal homicide, including first-degree murder, his state of mind is clearly at issue. The Commonwealth goes on to aver that evidence of the defendant’s other crimes are relevant to proving Tina Miller’s death did not occur without his intentional conduct. They further argue in each prior assault, the victims indicate they were in fear of being both physically and/or sexually assaulted by the defendant; particularly when they were unreceptive to his sexual desires, and if these prior assaults are admitted they will show defendant’s malice, motive and intent in killing Tina Miller.

The Commonwealth analogizes this case to Commonwealth v. Billa, supra. In Billa, the court concluded evidence of a prior crime was relevant and had important evidentiary value to establish motive/intent in murdering Maria Rodriquez and to negate appellant’s claim that her death was an accident. Before the Rodriquez murder, the appellant accosted another young woman, Florence Morales. He took her gold chains and forced her to a nearby vacant lot where he raped her. Afterward, appellant strangled Florence until she lost consciousness. Florence did not die. Evidence of the assault on Florence Morales was admissible in appellant’s trial for murdering Maria Rodriquez. Appellant stabbed Maria to death and took her jeweliy. The evidence was admissible on the issues of motive/intent and accident despite the dissimilarities between the cases; (1) appellant knew Maria, and wanted a relationship with her, but he did not know Florence; (2) Florence, and not Maria, was abducted; (3) Florence was accosted in public, but Maria was killed in her own home; (4) appellant raped Florence, but he was not charged with sexually assaulting Maria; (5) appellant strangled Florence but stabbed Maria; (6) Maria died, but Florence did not.

The Commonwealth argues that just as in Billa, the defendant’s assaults have strong evidentiary value in proving just why Tina Miller died, and the defendant’s intent in killing her.

Defendant argues the prior bad acts alleged, in the instant case, do not rise to the level of “logical connections” that case law mandates. In support of its position, defendant cites many cases to distinguish the present facts from cases in which prior bad acts were admitted to prove intent, motive and malice. Defendant cites the Superior Court ruling in Schwartz, supra at 263, 615 A.2d at 356 which sets the standard that in order for prior bad acts to be admissible under the motive exception, evidence of such acts “must give sufficient ground to believe that the crime currently being considered grew out of, or was in any way caused by, the prior set of facts or circumstances.”

In Schwartz, the Superior Court found that the trial court did not abuse its discretion when it admitted evidence that showed that appellant made repeated harassing phone calls to the victim for over a month before breaking into her house, for the purpose of proving motive. Defendant argues the Schwartz case demonstrates a logical connection, unlike the present facts alleged by the Commonwealth.

The Superior Court explains the admissibility of evidence under the intent and motive exception in Commonwealth v. Camperson, 417 Pa. Super. 280, 285, 612 A.2d 482, 484 (1992), and states the standard for admissibility:

“There must be a logical connection between the prior incident and the crime for which the accused is being tried. Important factors to be considered in making this determination include the proximity in time between the incidents; the similarity in the circumstances surrounding the incidents; and whether evidence of the prior crime is necessary to rebut the accused’s evidence or contention of accident, mistake or lack of required intent.”

In the case sub judice, we note many similarities between the prior bad acts of the defendant and the killing of Tina Miller: (a) defendant was drinking in three out of four assaults on previous women, defendant was also allegedly drinking the night of the Miller death; (b) defendant choked or used force against the throat of three of the four women, Tina Miller’s body had hemorrhages to the neck; (c) sexual assault was attempted on one victim and perpetrated against three of the four women, sexual assault was carried out upon Tina Miller’s body; (d) four of the four women expressed fear of being killed by the defendant, circumstantial evidence can be argued to allege Miller was in fear of being killed while the assault was being carried out; (e) physical assault to the face and head was committed against three of the four women, Tina Miller had hemorrhages to the face and head; (j) use or attempted penetration with a foreign object was carried out against three of the four women, Miller was penetrated with a foreign object; and finally, (g) all the victims were in their mid 20s to early 30s, including Tina Miller.

The similarities between the proffered prior bad acts of the defendant and the circumstances that surround the death of Tina Miller we find are sufficiently similar to establish a logical connection required by law that would allow the evidence of these bad acts to be admitted to prove the defendant’s intent, motive, and malice toward the victim.

IDENTITY

The Commonwealth argues in the case sub judice that the defendant indicates he was dropped off with the victim and he left her alive and unharmed. Therefore defendant raises identity as an issue in this case. They go onto propound that the evidence of defendant’s other assaults on women makes this possibility highly unlikely, and proof of defendant’s identity as the perpetrator relevant. The Commonwealth reasons that Tina Miller died as a result of asphyxiation after being raped and physically assaulted, and Miller was with a man who had repeatedly sexually and physically assaulted other women. Given this evidence, the Commonwealth argues it is totally unreasonable to conclude the defendant actually left Miller alive and someone else then killed her.

The Commonwealth maintains that the doctrine of chances supports admission of the evidence as it leads to the conclusion that the defendant is the one who committed the murder. The doctrine of chances was used to explain the accident exception in Commonwealth v. Donahue, 519 Pa. 532, 541-42, 543, 549 A.2d 121, 126, 127 (1988) (emphasis in original), and states:

“To prove intent, ... as a generic notion of criminal volition or willfulness,... [t]he argument here is purely from the point of view of the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all.... [T]he mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.
“In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act....
“II Wigmore, On Evidence, §302 pp. 241, 245, 246 (Chadboum Rev. 1979). (emphasis added)”

Defendant argues only if an accused commits other crimes using a distinct modus operandi can such evidence be introduced to prove identity. To support their argument, defendant cites Commonwealth v. Shively, 492 Pa. 411, 415, 424 A.2d 1257, 1259 (1981) (emphasis in original) citing McCormick on Evidence §190 (1972 2d ed.) and states:

“[Ejvidence of prior crimes is admissible:
“to prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here, much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.”

In Shively, the Pennsylvania Supreme Court, by plurality decision, found two sexual assaults were insufficiently similar because few of the details were the same. However, two dissenting justices opined that the circumstances surrounding the crimes at issue in Shively were sufficiently similar, and the time frame, considered in light of appellee’s incarceration, sufficiently small, that appellee’s conviction of the first offense was admissible at his trial for the second.

Defendant argues he is accused of murder by means of asphyxiation and/or drowning. The victim was beaten, her arms and mouth duct taped. She was then sexually violated by an unknown object. Defendant cites no signature with distinct modus operandi ties these instant facts to the prior bad act. Indeed, defendant maintains that the Commonwealth’s prior bad act witnesses will not testify to anything that was done to them that would amount to something so unusual and distinct to be like a signature of the defendant, likewise identifiable in the facts of the instant case.

The question is whether similarities, in the prior bad acts, lead to the conclusion that there is a logical connection between the crimes. Commonwealth v. Hughes, 521 Pa. 423, 458, 555 A.2d 1264, 1283 (1989). We note, these similarities are not confined to insignificant details which would likely be common elements regardless of who had committed the crimes. Id. at 459, 555 A.2d at 1283.

According to the evidence proffered by the Commonwealth, the defendant committed prior assaults on women that consisted of sexual assault, physical assault, sexual penetration/attempted penetration with a foreign object, and the defendant was drinking at the time of most of these assaults. Tina Miller was the victim of sexual assault, physical assault, sexual penetration with a foreign object and defendant was allegedly drinking the night of Miller’s death.

This court finds the similarities between the prior bad acts of the defendant and the killing of Tina Miller are of significant and substantial detail to allow the Commonwealth to present testimony of defendant’s prior bad acts to attempt to prove the identity of who committed the death of Miller.

COMMON SCHEME, PLAN OR DESIGN

Finally, the Commonwealth argues that evidence of the other crimes reveals that all offenses, including Tina Miller’s murder, are part of a common scheme, plan or design.

The Commonwealth points this court to Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243 (1997) in which the Supreme Court of Pennsylvania held that three prior assaults on women were admissible in the murder trial of the defendant, based upon common scheme, plan or design.

In Elliott, the appellant went to a nightclub where he met a 27-year-old white female. The victim accompanied the appellant to a friend’s house. The victim was found dead the next morning, in the friend’s apartment, and it was determined that the manner of death was strangulation, performed manually, and with a cord. The autopsy revealed injuries to the woman’s vagina and anus, indicating forced sexual penetration.

At trial, three other women testified concerning prior, unrelated sexual and physical assaults inflicted upon them by the appellant. Each woman was white and in their 20s. They were each attacked by appellant in the early morning hours, and all had similar violence inflicted upon them. On appeal, the court held that the trial court had properly admitted the testimony of the women due to the fact that the three prior assaults were sufficiently similar to the attack in appellant’s murder trial: “all [were] white women in their 20s. They were all attacked in the early morning hours after finding themselves alone with appellant. Each of the assaults had sexual overtones. Each of the women were choked or beaten, or both. Given the close similarities between these assaults, we cannot conclude that the trial court abused its discretion in admitting the testimony of [the women] to show common scheme, plan, or design. See Commonwealth v. Miller, 541 Pa. 531, 548, 664 A.2d 1310, 1318 (1995) (evidence that appellant lured other victims of similar race and weight into his car, took them to remote areas to force sex upon them, beat them in a similar manner, and killed or attempted to kill them admissible to prove common scheme, plan, or design), cert denied, 516 U.S. 1122, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996); see also, Commonwealth v. May, 540 Pa. 237, 247-49, 656 A.2d 1335, 1340-41 (1995)." Elliott, 549 Pa. 132, 700 A.2d at 1250.

When ruling on the admissibility of evidence under the common plan exception, the trial court must examine the details and surrounding circumstances of each criminal event to assure that the evidence reveals conduct which is distinctive and so nearly identical as to become the signature of the defendant. Commonwealth v. Frank, 395 Pa. Super. 412, 421, 577 A.2d 609, 614 (1990), appeal denied, 526 Pa. 629, 584 A.2d 312 (1990). The habits or patterns of action or conduct undertaken by the defendant, as well as the time, place and types of victims typically chosen are all factors relevant to a finding that the criminal conduct is distinctive. Id.

The Commonwealth further points this court to Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275 (1991). In Newman the Pennsylvania Supreme Court analyzed whether two separate sexual assaults were part of a common design so that they could be tried together. The court concluded the offenses in the case which were 18 months apart were not too remote to be part of a common plan. Id. The court reaffirmed their holding in Shively, supra, and stated remoteness in time is but another factor to be considered in determining whether evidence of prior crime tends to show the same person committed both offenses. Newman at 400, 598 A.2d at 279.

In Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003), the Superior Court explained that the rule governing the admission of prior bad acts is not limited to evidence of crimes that have been proven beyond a reasonable doubt in court. Id. at 1145. “It encompasses both prior crimes and prior wrongs and acts, the latter of which, by their nature, often lack ‘definitive proof.’ ” Id.

In Ardinger prior to his trial for involuntary deviate sexual intercourse, sexual and indecent assault, the Commonwealth filed a motion in limine seeking admittance of evidence regarding a prior incident wherein the defendant had fondled another child, in which charges were pending in another state. The trial court found that the two incidents were sufficiently similar so as to constitute a common plan but denied the motion in limine, finding that the prejudicial effect outweighed the probative value of the prior assault.

The Superior Court agreed with the trial court’s conclusion that the two incidents were similar enough to constitute a common scheme, plan or design. However, the court remanded the case in order for the trial court to more thoroughly analyze whether the admission of the evidence would outweigh its potential for prejudice:

“We note in this case, where the evidence sought to be admitted did not concern a prior conviction, the Commonwealth did not seek to merely bring in a witness to describe the pending charges. Rather, in its offer of proof the Commonwealth asserted that the victim . . . would testily. In addition, the Commonwealth claimed it would offer the testimony of [the other child’s] mother. These witnesses will be available to the jury so their credibility can be judged and they will be subject to cross-examination which can include questions which will enable the jury to know that the charges against appellee in Maryland have not yet resulted in a conviction.” Id. at 1146.

After review of the existing case law, we determine, the prior bad acts and the circumstances surrounding Tina Miller’s death, which were allegedly committed by the defendant, are sufficiently similar and distinct to point toward the fact that the same person committed all of the assaults. This court is constrained by the present status of case law to allow the Commonwealth to present testimony from the women regarding the defendant’s prior bad acts which evidence a common scheme, plan or design. Furthermore, as required, the women will be subject to cross-examination which will allow the jury to assess each woman’s credibility and protect the defendant’s interests.

PROBATIVE VALUE VERSES PREJUDICIAL IMPACT

Having determined the Commonwealth’s proffered evidence meets the threshold questions of admissibility, we note, as stated earlier, other crimes, wrongs, or acts evidence may only be admitted upon a showing that the probative value of the evidence outweighs its potential for prejudice. Pa.R.E. §404(b)(3). McCormick on evidence states:

“[Mjost recent authority recognizes that the problem is not merely one of pigeonholing, but of classifying and then balancing. In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficiency of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.” West’s Pennsylvania Practice, Pennsylvania Evidence, §404-9(b) citing, McCormick, Evidence §190 p. 811 (4th ed. 1992).

Evidence in a criminal trial offered by the prosecution will be prejudicial to the defendant. Commonwealth v. Peer, 454 Pa. Super. 109, 120, 684 A.2d 1077, 1083 (1996). If mere prejudice were the standard, practically all evidence could reasonably be excluded. Id. “For this reason, the test for admissibility is whether the challenged evidence is so unfairly prejudicial that its inflammatory nature makes its probative value de minimis.” Id. (emphasis in original)

Limiting or cautionary instructions may reduce the prejudicial impact enough to permit the use of other crimes evidence. Commonwealth v. Bronshtein, 547 Pa. 460, 691 A.2d 907 (1997). Courts can also minimize prejudice by tempering the manner in which the prosecution refers to the uncharged conduct. Commonwealth v. Marchand, 452 Pa. Super. 625, 682 A.2d 841 (1996).

The prosecution argues the evidence of defendant’s other crimes is relevant and highly probative on a number of issues in this case. They go on to maintain that the need for this evidence is great due to the fact that there are no eyewitnesses to Tina Miller’s death.

The defendant avers that each of the alleged bad acts would require a trial within a trial on each of the allegations. They further aver that one witness has a child with the defendant and they are in a dispute over custody. The defendant also maintains that another witness is a heavy cocaine user. Finally, the defendant states in rebuttal there are several ex-girlfriends of the defendant which would come forward to offer their testimony that the defendant always treated them well with no physical abuse.

This court finds the prior bad acts evidence is more probative then prejudicial in three of the four instances, Berardinelli, Maloney and Levine because: (a) of the similarities between the crimes; (b) there was a relatively short time lapse between all of the prior bad acts, with the oldest one being perpetrated in 1996 and the most recent bad act initiated three months before Tina Miller’s death; (c) there are no witnesses to Miller’s death; (d) the women all knew the defendant and could identify him as the person who committed the bad acts against them (e) this court can give limiting instructions regarding the use of the prior bad act evidence; and (f) the women will be subject to cross-examination in which the juiy will be able to decide themselves how much credibility to assess to each woman’s story.

However, Bott’s testimony must be precluded regarding her assault, which was allegedly carried out by the defendant, because she cannot identify who assaulted her in her dark bedroom. Therefore, Bott’s testimony would be more prejudicial then probative under the circumstances to the defendant.

We remain cognizant that each prior bad act incident will require testimony and cross-examination as required by present case law. The admission of such evidence will require trial management to maintain relevance and efficiency. At this point, defendant provides no law supporting his claim that admission of prior bad acts of a defendant opens the door for admission of any prior “good” acts done by a defendant.

In light of the forgoing we enter the following:

ORDER

And now, April 13, 2005, it is ordered, directed and decreed,

(1) The Commonwealth’s motion in limine is granted in part. Elizabeth Ann Berardinelli, Laura Jane Maloney, and Deborah A. Levine shall be permitted to testify regarding the prior bad acts which were allegedly committed against them by the defendant, for the limited purpose of proving the defendant’s intent, motive, identity, common scheme, plan or design.

(2) The Commonwealth’s motion in limine is denied in part. The prior bad act testimony of Wendy Sue Bott is inadmissible evidence.

(3) A pretrial conference is set for Tuesday, May 10, 2005 at 1:30p.m. in courtroom no. 1.

      . Simple assault and indecent assault by forcible compulsion.

      . 18 Pa.C.S. §2502(a) Murder of the first degree states: “A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” (emphasis added)

      . The trial court in Schwartz held that the evidence was also admissible under the intent and common plan exceptions. The Superior Court only gives analysis as to the motive exception and does not reach any analysis of any other exceptions based upon judicial restraint.

        . The identity exception is normally used in conjunction with another exception as a supplement. U.S. v. Woods, 484 F.2d 127, 134 (4th Cir. 1973).

      . In Shively, six days after appellee’s release from prison where he was serving a three-year term for forcible sodomy, he was again accused of forcibly raping and sodomizing another young woman. Both victims were around 20 years old; both were in or entering their automobiles at the time they were approached by the perpetrator; both victims were forced with deadly weapons to accompany the assailant to a secluded country area; and both victims were ordered to assume crouching positions which exposed their genetalia from the rear for the assailant. Id. at 417, 424 A.2d at 1260 (dissenting opinion).

      . The defendant did not plead guilty but rather entered a plea of nolo contendere.


source: Caselaw Access Project

author: NEALON, J,

license: Public Domain

text:
    Busy Bee Inc. v. Corestates Bank N.A.

      C.P. of Lackawanna County,
    no. 97 CV 5078.

      Steven M. Coren, for plaintiffs.

      Joan R. Sheak, for defendant.
    December 30, 2004
   NEALON, J,

— The defendant Bank in this lender liability action has filed a Frye motion pursuant to Pa.R.C.P. 207.1, challenging the methodology used by the borrowers’ damages experts to compute the financial losses allegedly caused by the Bank’s wrongful conduct. Based upon the evidence presented during the Frye hearings, the business valuation approaches utilized by the borrowers’ experts do not involve novel mathematical principles and, to the contrary, are generally accepted methods in the business valuation field. Therefore, for the reasons set forth below, the Bank’s motion to exclude expert testimony will be denied.

I. PROCEDURAL HISTORY

Certain members of the Levy family who own plaintiffs Busy Bee Inc., Baby Bee Inc., MLL Corp. and JASAMI Inc. t/a Century Shoes Ltd. and Carlton Shoes Ltd. t/a BLS Associates (B. Levy) have sued their former lender, defendant Corestates Bank N.A., successor by merger to the Third National Bank & Trust Co. of Scranton, alleging breach of express and implied contractual duties, breach of fiduciary duty, fraudulent misrepresentation and negligent misrepresentation and seeking to recover compensatory and punitive damages. (See dkt. entry nos. 1,12.) After this matter was certifiedfor trial, the Bank filed a series of pretrial motions, including a “Motion for separate trials on liability and damage issues” and a “Motion to exclude expert testimony.” (Id., nos. 71, 74-75.) One aspect of the Bank’s motion to exclude expert testimony consists of a challenge under Pa.R.C.P. 207.1 and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to the business valuation methodology employed by B. Levy’s damages experts. (Id., no. 71.)

Frye hearings were conducted on May 21, 2004 and August 12,2004, at which time testimony was received from B. Levy’s expert witnesses, Morris Gocial C.P.A., Cr.F.A., and John Mitchell C.P.A., C.V.A., of Gocial Gerstein LLC, and Howard Platt of Financo Inc., and the Bank’s experts, Thomas J. Hoberman C.P.A., of Withum, Smith & Brown, and William Henrich C.P.A., of Getzler Henrich & Associates. On August 24, 2004, the Bank’s motion to bifurcate was granted and separate trials on liability and damages were scheduled with the understanding that a different jury would decide the issue of damages in the event that a liability verdict was returned in favor of B. Levy. (Id., no. 90.) By order dated August 27, 2004, we denied that portion of the Bank’s motion to exclude expert testimony which asserted that B. Levy’s experts (a) relied upon facts that were inadmissible under Pa.R.E. 703, (b) were not properly qualified under Pa.R.E. 702, and (c) offered opinions on ultimate issues in contravention of Pa.R.E. 704. With respect to the Bank’s Frye motion contesting the methodology used by B. Levy’s damages experts, we deferred any ruling until the damages phase of the trial. (Id., no. 91.)

A liability trial was conducted from September 13, 2004 through September 30, 2004, at the conclusion of which the jury found that the Bank breached contractual and fiduciary duties and committed fraudulent and negligent misrepresentations which were the legal cause of harm to B. Levy. In response to special verdict interrogatories, the jury also found that the Bank’s tortious conduct was outrageous so as to entitle B. Levy to recover punitive damages. (Id., no. 110.) Following the completion of an unsuccessful settlement conference on November 18, 2004, the damages trial was scheduled for May 9, 2005, such that the Bank’s Frye motion is ripe for disposition. (Id., nos. 118, 126.)

II. FACTUAL BACKGROUND

The details of B. Levy’s claims against the Bank were chronicled earlier in Busy Bee Inc. v. Corestates Bank N.A., 67 D.&C.4th 496 (Lacka. Cty. 2004), in which the Bank’s motion for partial summary judgment was denied. For purposes of the instant motion under Rule 207.1, the following facts are worthy of note. From 1888 through 1997, B. Levy operated wholesale and retail shoe businesses which had survived numerous industry cycles and economic challenges presented by two World Wars, the Depression, and various recessions. Beginning in 1994, the Bank and B. Levy established a lender-borrower relationship by virtue of which the Bank provided letters of credit and a revolving line of credit for B. Levy’s working capital, acquisition of inventory, and general corporate purposes. Id. at 499-500.

B. Levy’s retail division began to experience financial difficulties due to poor market conditions in the mid-1990s, as a result of which B. Levy made a strategic decision to convert certain retail stores to discount stores in order to increase revenues, reduce expenses and improve profitability. With the Bank’s approval, B. Levy converted two of its 17 retail stores to discount “Brands for Less” outlets in August 1995, and by October 1995, the conversion strategy had proven to be a “strong success” as evidenced by increased sales and corresponding reductions in expenses at the pilot discount stores. After the Bank expressed its continuing support for this conversion strategy, B. Levy agreed in November 1995 to convert four more retail stores to a discount format. As part of its turnaround action plan, B. Levy intended to convert its remaining retail stores to discount operations between 1996 and 2001. Id. at 501-502.

However, during a subsequent meeting on December 22, 1995, the Bank informed B. Levy that it no longer endorsed the new discount store concept and instead demanded that B. Levy immediately “get out of the retail business” since the Bank’s economist had concluded “that there would be a continuous downturn in the retail environment.” Id. at 502-503. The Bank also advised B. Levy that it would continue to provide financing for B. Levy’s profitable wholesale operations only if it terminated its retail business. As a result, B. Levy’s principals reluctantly agreed to liquidate the Levy family’s longstanding retail business. Unbeknownst to B. Levy at that time, the Bank’s internal memoranda reflected that the Bank actually intended to terminate B. Levy’s line of credit prior to its scheduled expiration date of May 31, 1996. Id. at 503-504.

In response to the Bank’s demand, B. Levy took affirmative steps to liquidate its retail business by hiring a liquidation consultant who had been recommended by the Bank, prematurely terminating several leases for its retail stores, canceling retail merchandise orders that had been placed with its retail stores’ suppliers, arranging a private liquidation sale for its preferential customers, and informing more than 100 of its retail store employees of their need to secure other employment. Id. at 506-507. On February 29, 1996, the Bank declared B. Levy in default of its financing agreement based upon B. Levy’s “plan to liquidate [its] retail operations,” which action B. Levy had undertaken at the Bank’s insistence on December 22, 1995. When the stunned principals ofB. Levy inquired whether the Bank “wanted B. Levy to turn the retail liquidation around and go back to B. Levy’s original [discount store] plans,” the Bank “said no.” Furthermore, after its declaration of default on February 29, 1996, the Bank declined to provide letters of credit or financing for B. Levy’s wholesale division, thereby preventing B. Levy’s wholesale business from purchasing shoes from its foreign suppliers. As a consequence, B. Levy was forced to file a voluntary bankruptcy petition on July 25, 1996, which the Bankruptcy Court later dismissed on April 9, 1997. Id. at 507-509.

During the Frye hearings, B. Levy’s valuation experts testified that they utilized a combination of the income approach and the market value approach in determining B. Levy’s damages. Under this two-step process, the experts calculated what B. Levy’s earnings or revenues would have been from 1996 to 2001 if B. Levy had been permitted to implement its business turnaround plan of converting its retail stores to discount stores. At the con-elusion of that conversion process, B. Levy’s operations and revenue stream ostensibly would have stabilized and more accurately represented its projected future earnings. Using 2001 as B. Levy’s stabilization point, B. Levy’s experts calculated the business’ terminal or residual value, i.e., what a prospective buyer would pay to purchase B. Levy and acquire the right to receive its future earnings or revenues. B. Levy’s business valuation experts added the projected lost earnings from 1996 to 2001 and the business’ terminal or fair market value as of 2001 to arrive at an aggregate figure for B. Levy’s pecuniary losses. (See transcript of proceedings on 5/21/04, pp. 15-16,22-23, 27-30,39,51-52, 56-57.)

B. Levy’s experts submit that their hybrid approach is appropriate when attempting to fix a value for a business which is in a “state of flux” or an otherwise “fluid situation” as B. Levy was in 1995-1996. In that event, the business’ current earnings and operations are not valid or reliable predictors of the business’ future revenue stream since the business model is undergoing change and will ultimately yield different earnings. According to B. Levy’s experts, the business’ stabilized income must first be determined in order to compute an accurate terminal or residual value for the business. Their projected earnings for 1996-2001 are based, in part, upon the historical sales and expense figures from B. Levy’s retail to discount conversion success in 1995. {Id., pp. 31-32.)

Morris Gocial C.P.A., Cr.F.A., and John E. Mitchell C.P.A., C.Y.A., of Gocial Gemstein LLC, and Howard Platt, ofFinanco Inc., attested that the foregoing approach does not involve novel valuation principles and, to the contrary, is a generally accepted method of valuing privately owned wholesale and retail shoe businesses. (Id., pp. 12-13, 26-27, 54-55.) Mr. Gocial and Mr. Mitchell further testified that their methodology is recognized by the Internal Revenue Service Revenue Ruling 59-60, 1959-1, C.B. 237, and authoritative treatises on business valuations, including Trugman, Understanding Business Valuations: A Practical Guide to Valuing Small to Medium-Sized Businesses (2nd ed. 2002), Pratt et al., Valuing a Business: The Analysis and Appraisal of Closely Held Companies (4th ed. 2000), and Practitioners Publishing Co. (PPC), Guide to Business Valuations (8th ed. 2003). (Id., pp. 17-20, 28.)

The Bank’s valuation experts contend that lost profits or earnings are an inappropriate consideration for the valuation of a destroyed, as opposed to an impaired, business. Thomas J. Hoberman C.P.A., opined that a lost profits or earnings calculation is acceptable only when assessing damages suffered by an impaired, but still operational, business. Mr. Hoberman asserts that, in those instances in which the business has been destroyed, the fair market value approach is the sole method for ascertaining damages by calculating the present discounted value of the future earnings of the destroyed business. (Id., pp. 64-65,76.) Since B. Levy’s wholesale and retail shoe businesses were allegedly destroyed by the Bank’s wrongful conduct, Mr. Hoberman submits that the methodology applied by B. Levy’s experts is not generally accepted in the business valuation field as a recognized approach for determining B. Levy’s damages in this case. (Id., pp. 65, 71-78.)

The Bank’s other expert, William Henrich C.P.A., of Getzler Henrich & Associates, similarly believes that the valuation principles applied by B. Levy’s experts are not generally accepted valuation methods for financially distressed businesses such as B. Levy. (T.P. 8/12/04, pp. 21-23.) Mr. blenrich asserts that a closely-held, distressed business of B. Levy’s size may be valued pursuant to either (a) the comparable transaction method or (b) the asset value method. Under the former approach, the valuation is predicated upon the sale prices of comparable companies if such data exists whereas the latter method is based upon the fair market value of the company’s tangible assets. (Id., pp. 13-16.) With the asset value method, the only tangible assets which are considered to have value for a distressed company are its accounts receivable and existing inventory since a distressed company generally does not have a positive revenue stream. (Id., pp. 21 -22,26.) Mr. Henrich posits that the asset value method is the only acceptable approach for calculating B. Levy’s losses. (Id, p. 26.)

The Bank’s Frye challenge to B. Levy’s valuation methodology is largely premised upon the following passage from section 303.82 of chapter 3 of the PPC Guide entitled “Lost profits analyses” which states:

“303.82. Destruction of a business. The calculations in steps 7 [Lost profits computation], 8 [Discount the projected lost profits], and 9 [Calculate prejudgment interest] assume that the closely-held business has been injured or temporarily impaired. However, if the business has been completely destroyed, most courts have ruled that the proper measure of damages is the market value of the business on the day of the loss. The theory behind this rule is that the plaintiff who recovers damages equal to the value of the business has, in effect, sold the business to the defendant. The plaintiff should not also be able to recover future lost profits after the imputed sale. Business valuations are discussed in chapter 10 of this guide. In addition, PPC has a three-volume guide titled PPC’s Guide to Business Valuation to help the expert faced with destroyed businesses.” (Corestates exhibit no. 9, pp. 3-27.) (emphasis added) (See also, T.P. 5/21/04, pp. 23-24.)

Comparable language is contained in the Trugman text which B. Levy’s experts recognize as an authoritative treatise. (T.P. 5/21/04, pp. 37-38.) The Bank submits that the valuation approach employed by B. Levy’s experts provides for the dual recovery of future lost profits and the fair market value of the business in contravention of the above-quoted authorities. (Id, pp. 64-65, 76; T.P. 8/ 12/04, pp. 18,21.)

B. Levy’s experts testified that they did not provide for the recovery of “future lost profits after the imputed sale” of the destroyed business. Rather, since B. Levy was undergoing a business conversion at the time of the Bank’s fraud and wrongful conduct, its experts simply determined its anticipated future revenues once its business operations had been stabilized as per its conversion plan and thereafter calculated the present value of the expected future benefits of ownership of that stabilized business (i.e., its terminal or fair market value). (T.P. 5/ 21/04, pp. 38-41.) Even the Bank’s own expert, Mr. Hoberman, acknowledged that if the business’ past or current earnings are not reliable indicators of the business’ anticipated revenue stream in the future, it is appropriate to prepare and use reasonable projections of future earnings in determining the terminal value of the company. {Id., pp. 92-93.) Additionally, Mr. Gocial testified that his firm, Gocial Gerstein LLC, has “used this method several times” when valuing a fluid business, as this approach is “[absolutely” accepted in the business valuation field. {Id., p. 12.)

IRS Revenue Ruling 59-60 addresses the valuation of closely-held companies such as B. Levy and supports the use of more flexible approaches which are tailored to the business’ specific circumstances rather than the application of a hard and fast rule. The Revenue Ruling states that “all other available financial data, as well as all relevant factors affecting the fair market value must be considered” and that “[n]o general formula may be given that is applicable to the many different valuation situations arising in the valuation of such stock.” (Core-states exhibit no. 7, p. 1.) Section 3 likewise provides that “[a] determination of fair market value, being a question of fact, will depend upon the circumstances in each case” and that “[n]o formula can be devised that will be generally applicable to the multitude of different valuation issues....” (Id.) This same section cautions that the business appraiser “should maintain a reasonable attitude in recognition of the fact that valuation is not an exact science” and “is, in essence, a prophecy as to the future and must be based on facts available at the required date of appraisal.” (Id., pp. 1-2.) (See also, T.R 8/ 12/04, pp. 37-39.)

Under the heading “Factors to consider,” section 4 of the Revenue Ruling identifies various factors that “are fundamental and require careful analysis in each case,” including “[t]he nature of the business and the history of the enterprise from its inception,” “the condition and outlook of the specific industry in particular,” “[t]he earning capacity of the company,” and “[w]hether or not the enterprise has goodwill or other intangible value.” (Corestates exhibit no. 7, p. 2; T.P. 8/12/04, pp. 39-41, 44, 53, 58-59.) Section 4.02(a) instructs that “[t]he history of a corporate enterprise will show its past stability or instability, its growth or lack of growth, the diversity or lack of diversity of its operations, and other facts needed to form an opinion of the degree of risk involved in the business.” This subsection also addresses the valuation of a business which has undergone a change in operations and states:

“For an enterprise which changed its form of organization but carried on the same or closely similar operations of its predecessor, the history of the former enterprise should be considered. . . . Events of the past that are unlikely to recur in the future should be discounted, since value has a close relation to future expectancy.” (Corestates exhibit no. 7, pp. 2-3; T.R 8/12/04, p. 62.)

With regard to the business’ earning capacity, section 4.02(d) advises that “[pjotential future income is a major factor in many valuations of closely-held stocks, and all information concerning past income which will be helpful in predicting the future should be secured.” (Corestates exhibit no. 7, p. 4.) Section 4.02(f) discusses consideration of the business’ good will and notes that “[wjhile the element of good will may be based primarily on earnings, such factors as the prestige and renown of the business, the ownership of a trade or brand name, and a record of successful operation over a prolonged period in a particular locality, also may furnish support for the inclusion of intangible value.” (Id., p. 4.)

Sections 5 and 6 of IRS Revenue Ruling 59-60 address the “Weight to be accorded various factors” and “Capitalization rates” to be applied in valuing a closely-held company. Section 5 cautions that “[depending upon the circumstances in each case, certain factors may carry more weight than others because of the nature of the company’s business.” (Id., p. 5.) As Mr. Mitchell has testified, the business’ projected future earnings “may be the most important criterion of value” when attempting to conduct a valuation “of companies which sell products or services to the public.” (Id.) Conversely, section 5(b) recommends the asset value approach advocated by Mr. Henrich whenever an appraiser seeks to value “a closely-held investment or real estate holding company.” (Id.) As to the appropriate capitalization rates, section 6 warns that “the ratio will fluctuate from year to year depending upon economic conditions” such that “no standard tables of capitalization rates applicable to closely-held corporations can be formulated.” (Id.) For that reason, section 6 urges consideration of, inter alia, “the stability or irregularity of earnings” for the business. (Id.)

Finally, section 7, “Average of factors,” contains the following admonition:

“Because valuations cannot be made on the basis of a prescribed formula, there is no means whereby the various applicable factors in a particular case can be assigned mathematical weights in deriving the fair market value. For this reason, no useful purpose is served by taking an average of several factors . . . and basing the valuation on the result. Such a process excludes active consideration of other pertinent factors, and the end result cannot be supported by a realistic application of the significant facts in the case except by mere chance.” {Id., pp. 5-6.)

The Bank’s expert, Mr. Henrich, acknowledged that the business valuation field evolved as a result of IRS Revenue Ruling 59-60 (T.R 8/12/04, p. 37), and he described its valuation guidelines as “motherhood and apple pie” in that particular field. {Id. p. 39.) Based upon this evidentiary record, the merits of the Bank’s Rule 207.1 motion will be considered.

III. DISCUSSION

(A) Standard of Review

The “general acceptance” rule for the admission of novel scientific evidence was first established in Frye more than 80 years ago and remains the governing standard in Pennsylvania. See Grady v. Frito-Lay Inc., 576 Pa. 546, 839 A.2d 1038, 1044-45 (2003). See also, Pa.R.C.P. 207.1 (prescribing the procedures for seeking “to exclude expert testimony which relies upon novel scientific evidence, on the basis that it is inadmissible under Pa.R.E. 702 or 703 ....”). Under Frye and Rule 207.1, the proponent of novel scientific evidence bears the burden of demonstrating that the methodology used by that party’s expert is generally accepted by the relevant scientific community before the evidence will be admitted in a court of law. Commonwealth v. Delbridge, 580 Pa. 68, 859 A.2d 1254, 1260 and n.4 (2004); Grady, 839 A.2d at 1045. As an exclusionary rule of evidence, the Frye test “must be construed narrowly so as not to impede admissibility of evidence that will aid the trier of fact in the search for truth.” Track v. Fellin, 817 A.2d 1102, 1104 (Pa. Super. 2003) (en banc), appeal denied, 577 Pa. 725, 847 A.2d 1288 (2004). The trial court’s ruling under Pa.R.C.P. 207.1 “should not be disturbed on appeal unless the trial court abuses its discretion” which “may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support so as to be clearly erroneous.” Grady, 839 A.2d at 1046.

(B) Novelty of Methodology

The Bank contends that the methodology used by B. Levy’s damages experts is not generally accepted by the business valuation community. Although Frye challenges arise most frequently in medical malpractice, see e.g., Cummins v. Rosa, 846 A.2d 148 (Pa. Super. 2004), product liability, see e.g., Stecher v. Ford Motor Co., 779 A.2d 491 (Pa. Super. 2001), and toxic tort litigation, see e.g., Ford ex rel. Pringle v. Philadelphia Housing Authority, 848 A.2d 1038 (Pa. Commw. 2004), the Superior Court of Pennsylvania has reasoned that damage valuations in commercial disputes involve the science of mathematics and, as such, are subject to the “general acceptance” standard. See Reading Radio Inc. v. Fink, 833 A.2d 199, 208 (Pa. Super. 2003), appeal denied, 577 Pa. 723, 847 A.2d 1287 (2004) (“Valuation is mathematical and, in that sense, scientific, yet the methodologies used by [plaintiff’s expert] in this case (market analysis and perfor-manee analysis) were not novel, and appellants failed to produce evidence that they were novel.”). Courts must remain mindful, nevertheless, “that a Frye analysis is not triggered every time science enters the courtroom ... .” Commonwealth v. Dengler, 843 A.2d 1241, 1243 (Pa. Super. 2004), appeal granted, 578 Pa. 715, 854 A.2d 967 (2004). If courts were obligated to apply Frye every time that an expert rendered a scientific opinion, it would produce “a result that is nothing short of Kafkaesque to contemplate.” Ford, 848 A.2d at 1054; Track, 817 A.2d at 1110.

The “general acceptance” exclusionary rule of evidence “applies only when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness.” Cummins, 846 A.2d at 150 (emphasis in original); MC.M. by M.G.M. & C.W. v. Milton S. Hershey Medical Center of PA State University, 834 A.2d 1155, 1158 (Pa. Super. 2003). Thus, a threshold determination must first be made as to whether the scientific evidence at issue is, in fact, novel. Del-bridge, 859 A.2d at 1260 (“Frye only applies to novel scientific evidence.”). To be deemed “novel,” the scientific evidence “must be something different from ‘new,’ which could be original, striking, unusual or strange.” Dengler, supra at 1243 (expert psychologist’s opinion whether sex offender met criteria for sexually violent predator was not novel scientific evidence subject to Frye); Campbell-Perfilio v. PennDOT, 67 D.&C.4th 31, 43-44 (Lacka. Cty. 2004). More importantly, only the principles and methodology that the expert employs, as opposed to the conclusions [s]he reaches, must be generally accepted by scientists in the relevant field. Grady, 839 A.2d at 1045; Trach, 817 A.2d at 1114.

In determining whether a particular scientific process or methodology is generally accepted, the court must consider whether the proffered evidence stems from scientific research which has been conducted in a fashion that is “generally recognized as being sound” rather than “the fanciful creation of a renegade researcher.” M.C.M., 834 A.2dat 1158-59; Tucker v. Community Medical Center, 833 A.2d 217, 224 (Pa. Super 2003). However, the Frye test does not “require an optimal methodology, just an accepted one.” Cassell v. Lancaster Mennonite Conference, 834 A.2d 1185,1190 (Pa. Super. 2003), appeal granted in part, 578 Pa. 428, 853 A.2d 1009 (2004); Campbell-Perfilio, 67 D.&C.4th at 44. While authoritative literature may demonstrate that the expert’s methodology is generally accepted, properly qualified experts may simply rely upon their individual professional experiences in conducting their analyses and formulating opinions without running afoul of Frye. See e.g., Tucker, 833 A.2d at 224 (expert’s opinion that catheter could not perforate urethral wall was based upon his urological experience and not subject to Frye); Smith v. Grab, 705 A.2d 894, 900-901 (Pa. Super. 1997) (expert permitted to express opinion regarding effect of three-week delay in diagnosing breast cancer, and the “failure to cite an article or text on point goes to the weight of his testimony, not its admissibility.”); Joyce v. Boulevard Physical Therapy and Rehabilitation Center, 694 A.2d 648, 656 (Pa. Super. 1997), appeal denied, 559 Pa. 771, 740 A.2d 1148 (1999) (expert’s opinion was based upon professional experience and it was unnecessary to “cite to treatises and medical periodicals to support his articulation of the standard of care.”).

The Bank argues that the valuation approach utilized by B. Levy’s experts represents novel mathematical principles which are not generally accepted in the field of business valuation. Under Pennsylvania law, a victim of fraudulent misrepresentation “is entitled to all pecuniary losses which result as a consequence” of the plaintiff’s reliance upon the defendant’s representations. Lokay v. Lehigh Valley Cooperative Farmers Inc., 342 Pa. Super. 89, 99, 492 A.2d 405, 410 (1985). Such damages “need not be proved with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences.” Hawthorne v. Dravo Corp., Keystone Division, 352 Pa. Super. 359, 376, 508 A.2d 298, 307 (1986), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987); Delahanty v. First Pennsylvania Bank N.A., 318 Pa. Super. 90, 119, 464 A.2d 1243, 1257(1983). “Thus, the law does not demand that the estimation of damages be completely free of all elements of speculation[,]” Delahanty, 318 Pa. Super, at 118, 464 A.2d at 1257, and the fact-finder “may use a measure of speculation in estimating damages.” Penn Electric Supply Co. Inc. v. Billows Electric Supply Co. Inc., 364 Pa. Super. 544, 549, 528 A.2d 643, 645 (1987). Any doubt or uncertainty as to the precise amount of damages is construed against the breaching party or wrongdoer. Atacs Corp. v. Trans World Communications Inc., 155 F.3d 659, 669 (3d Cir. 1998) (citingDelahanty and applying Pennsylvania law).

Relying upon IRS Revenue Ruling 59-60 and appendix 10C of the PPC Guide, B. Levy’s experts submit that it was appropriate for them to add B. Levy’s projected revenues under its anticipated conversion plan and the fair market value of its stabilized operations in order to calculate its pecuniary losses with reasonable certainty. The Bank’s Frye challenge to that methodology is based upon the above-quoted language from Trugman and the PPC Guide, to wit, that when calculating damages for a business that “has been completely destroyed, most courts have ruled that the proper measure of damages is the market value of the business on the day of the loss” and that “[t]he plaintiff should not also be able to recover future lost profits after the imputed sale.” However, Pennsylvania does not appear to be aligned with that majority position and the Bank has not cited any decisional precedent which recognizes that standard as the controlling measure of damages in this Commonwealth. On the contrary, both the federal and state appellate courts have held that “[i]t is well settled that lost income or profit is recoverable in an action for the destruction or interruption of an established business, whenever they are not merely speculative or conjectural.” Princeton Sportswear Corp. v. H & M Associates, 358 Pa. Super. 325, 333, 517 A.2d 963, 967-68 (1986), appeal denied, 517 Pa. 608, 536 A.2d 1332 (1987); Delahanty, 318 Pa. Super, at 126, 464 A.2d at 1261; Rea v. Ford Motor Co., 560 F.2d 554, 557 (3d Cir. 1977), cert. denied, 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281.

The projected earnings calculations prepared by B. Levy’s experts are based upon historical sales data from those stores which had been successfully converted to discount outlets and are not the product of sheer speculation or conjecture. Furthermore, the experts did not include recovery for lost profits “after the imputed sale” in 2001. Instead, they merely calculated lost profits before the imputed sale in 2001 which was hypothetically conducted after the stabilization of B. Levy’s revenue stream following the consummation of its original conversion plan. The hybrid valuation method used by B. Levy’s experts considered B. Levy’s history of resilience, the changing nature of its operations, and the particular circumstances of its family-owned business. Such a valuation approach is not contrary to the flexible guidelines set forth in IRS Revenue Ruling 59-60 or the relevant literature.

Based upon the foregoing, it is apparent that the valuation methodology used by B. Levy’s experts does not involve novel scientific evidence. See Reading Radio Inc., 833 A.2d at 208. Frye and Rule 207.1 do not “require an optimal methodology, just an accepted one,” and the materials submitted by the parties reflect that B. Levy’s experts have utilized approaches and principles which are generally accepted in the field of business valuation. Any criticisms that the Bank may have with respect to those methodologies may be legitimate fodder for cross-examination, but do not warrant exclusion of the evidence in its entirety. As we have previously noted:

“Simply because the defense experts disagree with the scientific theories proffered by [plaintiff’s] experts does not mean that [their] testimony is subject to preclusion under Rule 207.1. If expert opinions were declared inadmissible on that basis, trial judges would be transformed from gatekeepers for the introduction or exclusion of novel scientific evidence to fact-finders obligated to choose between conflicting expert opinions and to determine which opinion is more credible or reliable. Determinations of that nature are the sole responsibility of the jury. The defense’s criticisms of the foregoing conclusions and [methodology] affect the weight of the testimony by [plaintiff’s] experts rather than its admissibility.” Campbell-Perfilio, 61 D.&C.4Ü1 at 48.

Accordingly, the Bank’s Frye motion will be denied.

ORDER

And now, December 30,2004, upon consideration of the defendant’s motion to exclude expert testimony pursuant to Pa.R.C.R 207.1, the testimony and exhibits introduced during the evidentiary hearings, the memoranda of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the defendant’s motion to exclude expert testimony pursuant to Pa.R.C.P. 207.1 is denied.

      . In contrast, Mr. Mitchell testified that the asset value method is only appropriate “for businesses that do not sell products or provide services” and is customarily “used for a business that is capital intensive or asset intensive,” such as “areal estate holding company.” (T.P. 5/21/04, p. 33.) Although the Bank’s experts criticize the methodology used by B. Levy’s experts, neither of the Bank’s experts actually computed B. Levy’s damages under their own proffered approaches. (Id., pp. 57-58, 60.)


author: RUDNITSKY, Vice Chair,

text:
    In re Walters

      Disciplinary Board Docket no. 76 D.B. 1998.
    November 10, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RUDNITSKY, Vice Chair,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, Richard J. Walters, filed a petition for reinstatement to the bar of Pennsylvania on December 29, 2003. Petitioner was suspended for three years by order of the Supreme Court of Pennsylvania dated December 14, 2000.

A reinstatement hearing was held on May 24, 2004, before Hearing Committee 4.07 comprised of Chair Marie Milie Jones, Esquire, and Members Larry D. Meredith, Esquire, and Jerry A. Johnson, Esquire. Respondent was represented by Dennis M. Blackwell, Esquire. Respondent testified and presented the testimony of four witnesses.

The Hearing Committee filed a report on July 15,2004 and recommended that petitioner’s petition for reinstatement be granted.

No briefs were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of September 27,2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Richard J. Walters. He was bom in 1961 and was admitted to practice law in Pennsylvania in 1990. His current address is 5460 White Oak Ave., Unit Gill, Encino, CA91316.

(2) Petitioner was suspended from the practice of law for three years by order of the Supreme Court of Pennsylvania dated December 14,2000.

(3) In January 1998, in a non-jury trial in Allegheny County, petitioner was found guilty but mentally ill of the offenses of harassment by communication, terroristic threats, and summary harassment arising out of incidents occurring in connection with his contacts with an adult woman and a Greek Orthodox priest. The incidents occurred in 1997.

(4) On March 25, 1998, petitioner entered a plea of guilty but mentally ill to indecent exposure and disorderly conduct after he disrobed and ran though a nuns’ dormitory at a Greek Orthodox monastery, shouting in an incoherent manner. This event happened in April 1997.

(5) After conviction, petitioner was sent to May view State Hospital for evaluation in consideration of sentencing. His discharge diagnosis was bipolar disorder and marijuana abuse disorder.

(6) Petitioner was sentenced to one year of restrictive intermediate punishment and seven years of probation. Special conditions included attendance at treatment session, submission to urinalysis, attendance at outpatient programs, entry into Lawyers Concerned for Lawyers and abstention from illegal drugs and alcohol.

(7) Petitioner began treatment in April 1997 with Dr. Marc E. Garfinkel, a psychiatrist.

(8) Dr. Garfinkel diagnosed petitioner as suffering from an acute mixed manic episode with psychotic features that followed years of hypomania, starting in 1993.

(9) Dr. Garfinkel initially prescribed Depakote three times daily, which worked to control petitioner’s symptoms.

(10) Petitioner has been under the continuous care of Dr. Garfinkel since April 1997.

(11) Dr. Garfinkel testified at the reinstatement hearing.

(12) Petitioner’s current diagnosis is Bipolar I Disorder, in full remission.

(13) Petitioner continues to take Depakote three times daily. The blood serum Depakote levels have been consistent during the past years and show that petitioner has taken the medication as prescribed.

(14) Petitioner sees Dr. Garfinkel every three to six months, which is the sufficient amount of times per year for the doctor to monitor respondent’s progress.

(15) Although petitioner currently lives in California, he continues to use Dr. Garfinkel as his psychiatrist since petitioner visits Pittsburgh regularly due to family and business connections.

(16) Dr. Garfinkel opined that such a long-distance situation was not unusual, given petitioner’s stability.

(17) Dr. Garfinkel made clear to petitioner that, if he experienced flare-ups while in California, he would have to seek treatment there.

(18) Petitioner has been entirely compliant with treatment.

(19) Petitioner’s risk of relapse is very low as long as he takes his medication and abstains from substance abuse.

(20) Dr. Garfinkel did not think that the normal stress of practicing law would result in petitioner having another manic episode.

(21) Dr. Garfinkel opined that there is no psychiatric or medical reason that would prevent petitioner from practicing law.

(22) Three character witnesses testified on behalf of petitioner. All three witnesses gave credible testimony.

(23) Mark Flaherty is a Pennsylvania lawyer who was in recovery with petitioner. He has known petitioner since 1998. He described petitioner as dedicated to the process of recovery. Mr. Flaherty believes petitioner’s reinstatement to the practice of law will not be detrimental to the public interest.

(24) Travis Klein is petitioner’s recovery sponsor. He has known petitioner for more than five years and has spent a lot of time with petitioner. He believes that petitioner is dedicated to his recovery and would be an asset to the legal community if reinstated.

(25) Father Nicholas Boldireff is a Russian Orthodox priest at St. Innocent Orthodox Church in Tarzana, California, where petitioner is a congregant. He has known petitioner for more than two years and is aware of the facts of petitioner’s conviction. He believes that the public interest would not be jeopardized by petitioner’s return to the practice of law.

(26) Petitioner completed all of the requirements of his criminal sentence. He was released early from probation in 2000 by Judge Manning of the Allegheny County Court of Common Pleas.

(27) During his suspension, petitioner initially took a temporary position with Robert Deer, Esquire, an attorney in Pittsburgh, then took a job in construction.

(28) In late 2001, petitioner moved to California to pursue an acting and screenwriting career. He has found work as a background extra in various productions, and is involved in a theater group called the Will Geer Theatricum Botanicum, which performs for school children, among others.

(29) Petitioner has not pursued any legal employment in California.

(30) Petitioner fulfilled his Continuing Legal Education requirements for reinstatement to practice law in Pennsylvania.

(31) If reinstated, petitioner intends to remain in California and sit for that jurisdiction’s bar examination.

(32) Petitioner is sober and attends Alcoholics Anonymous meetings at least once per week.

(33) Petitioner expressed sincere remorse for his past actions. He does recognize that his mental disorder is a lifelong one and must be continuously maintained by medication.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by Richard J. Walters. By order of the Supreme Court of Pennsylvania dated December 14,2000, petitioner was suspended from the practice of law for three years.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement hearing is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779(1976).

Petitioner was convicted of harassment by communication, terroristic threats, summary harassment, indecent exposure, and disorderly conduct arising out of his conduct involving the harassment of a young adult woman and an orthodox priest, and his behavior at a Greek Orthodox monastery. Petitioner’s criminal actions were substantially caused by substance abuse and bipolar disorder, which, at the time of the incidents, was undiagnosed. Petitioner was sentenced to one year of restrictive intermediate punishment and seven years of probation with numerous restrictive conditions. In 2000, petitioner’s probation was terminated early by Judge Manning of the Allegheny County Court of Common Pleas. Petitioner fulfilled all terms and conditions of his sentence.

Petitioner’s bipolar disorder, although presently in full remission, is incurable and is a lifelong disease. Petitioner offered credible evidence that he is aware of the impact and consequences of this disease on his life, and has taken every step possible to treat his disease. He began receiving treatment for bipolar disorder shortly after the criminal incidents in question. Dr. Marc Garfinkel has been in continuous charge of petitioner’s psychiatric treatment and finds that petitioner has responded very favorably to his treatment plan of Depakote three times per day. Dr. Garfinkel keeps apprised of petitioner’s progress through laboratory reports of the amount of medication in petitioner’s blood serum and through in-person office visits every three to six months. Dr. Garfinkel finds petitioner to be stable and capable of handling the normal stresses involved with the practice of law.

Two witnesses testified on behalf of petitioner as to his positive commitment to recovery from substance abuse. One of these witnesses, Travis Klein, serves as petitioner’s sponsor and is intimately aware of petitioner’s efforts at maintaining sobriety. Mr. Klein is of the belief that petitioner is stable in his recovery and would be an asset to the legal community upon reinstatement.

A Greek Orthodox priest from petitioner’s church in California testified as to petitioner’s good character and his belief that he would not harm the public if reinstated. This priest was aware of the details of petitioner’s conviction as it concerned the Greek Orthodox Church.

Petitioner demonstrated sincere remorse for his misconduct. He understands the harm and pain he inflicted on his victims. He understands that his ability to avoid similar instances of harm to himself and others is within his control, that being able to continue his medication regimen, to abstain from drugs and alcohol, and to be aware of symptoms that might indicate a relapse.

During petitioner’s suspension, he worked for a Pittsburgh lawyer and for a construction company. In 2001, he decided to pursue his interests in acting and screenwriting and moved to California. He has found work there in the theater and as an acting extra. He has also written a screenplay and is attempting to sell it. Petitioner plans to remain in California and, if reinstated, he hopes to sit for the California bar examination. Petitioner fulfilled all Continuing Legal Education requirements for reinstatement.

The board finds that petitioner has met with clear and convincing evidence his burden of proving that he is morally qualified, competent and learned in the law. Petitioner has successfully addressed the mental health and substance abuse issues which were the cause of his underlying misconduct. He has made a concerted effort to rehabilitate himself and start a new life. Furthermore, the board finds that petitioner’s readmission will not be detrimental to the bar or the public. For these reasons, the board recommends that petitioner be reinstated to the practice of law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Richard J. Walters, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Members Pietragallo and Nordenberg did not participate in the September 27, 2004 adjudication.

ORDER

And now, January 21,2005, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated November 10, 2004, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: LESIONEN, J,

text:
    Capriotti v. Beverly Enterprises Pennsylvania Inc.

      C.P. of Fayette County,
    no. 2553 of 2004.

      Michael T. Collis and Peter D. Giglione, for plaintiffs.

      Arthur K. Hoffman and Marc A. Moyer, for defendants.

      June 30, 2004
   LESIONEN, J,

Before this court are preliminary objections to plaintiffs’ amended complaint filed by defendants Beverly Enterprises Pennsylvania Inc.; Beverly Health and Rehabilitation Services; Beverly Enterprises Inc.; Joyce W. Hoch in her capacity as administrator of Beverly Healthcare-Uniontown; Vieva Wise Ferda in her capacity as director of nursing at Beverly Healthcare-Uniontown; and Jaci E. Null in her capacity as director of nursing of Beverly Healthcare-Uniontown Hospital.

After full consideration of the record, applicable law, and briefs of counsel, this court finds that defendants’ preliminary objections to plaintiffs’ amended complaint are without merit and are overruled except that the defendants’ objection to plaintiffs’ use of “inter alia” language in the amended complaint is sustained.

BACKGROUND

The following facts have been alleged in the plaintiffs’ amended complaint: Ms. Capriotti entered Beverly Healthcare-Uniontown (facility) on or about March 22, 2002. On or about November 10, 2002, plaintiff complained of severe left knee pain. An x-ray of the knee was not taken until the next day. Although the x-ray revealed a fracture, plaintiff was not taken to the hospital for yet another day. The cause and circumstances of the injury were generally charted as the result of a “recent trauma.”

On or about December 2, 2002, plaintiff was found experiencing “grunting-like respiration.” Plaintiff was admitted to Uniontown Hospital due to her failing condition, and was diagnosed with bilateral pneumonia. She was also diagnosed with onychomycosis during her hospital stay. Her toenails were described as long and overgrown, painful in slippers and shoes, and 20-30 times the normal thickness.

On or about March 17,2003, plaintiff suffered a fractured right wrist while undergoing a transfer within the facility. She was given only Tylenol to treat the severe pain in her wrist. On or about April 13,2003, plaintiff’s right thumbnail was noted to be loose and mycotic. On or about April 17, 2003, plaintiff was admitted to Uniontown Hospital with a diagnosis of two fractured bones in her right arm that occurred under the care of the defendants.

On or about December 16, 2003, plaintiff was admitted to Uniontown Hospital again, where she was diagnosed with a urinary tract infection, e. coli infection, dehydration, and malnutrition that occurred under the care of the defendants. On or about March 21,2004, while under the care of the defendants, plaintiff was again admitted to the Uniontown Hospital and was again diagnosed with a urinary tract infection and dehydration.

On or about November 9,2004 (reinstated on December 3,2004), this civil action was filed by Ms. Capriotti, by and through her attorney-in-fact, Danielle Conn, against Beverly Enterprises Pennsylvania Inc.; Beverly Health and Rehabilitation Services; Beverly Enterprises Inc.; Joyce W. Hoch in her capacity as administrator of Beverly Healthcare-Uniontown; Vieva Wise Ferda in her capacity as director of nursing at Beverly Healthcare-Uniontown; and Jaci E. Null in her capacity as director of nursing at Beverly Healthcare-Uniontown Hospital (collectively the defendants).

In her amended complaint, plaintiff alleges that, while plaintiff was receiving long-term nursing care at the facility, the defendants committed negligence and malpractice. On or about February 14, 2005, defendants filed the within preliminary objections to plaintiffs’ first amended complaint.

The preliminary objections are that:

(A) Plaintiff’s claim against the Beverly defendants under a “corporate theory” of liability should be stricken from Count I of the amended complaint because Pennsylvania law fails to recognize such a cause of action against long-term nursing facilities and because the claim fails to assert a prima facie case for such a cause of action;

(B) Plaintiff should be required to amend her amended complaint so as to sufficiently apprise defendants of the precise allegations forming the basis for her complaint; and

(C) Plaintiff’s claim for punitive damages should be dismissed because the alleged negligence forming the basis for plaintiff’s claim does not rise to the level of conduct necessary for the imposition of punitive damages as a matter of law.

DISCUSSION

Under Pennsylvania law, preliminary objections should only be sustained in cases that are “free and clear from doubt.” Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). Therefore, “a court must overrule [objections in the nature of a demurrer] if the complaint pleads sufficient facts which, if believed, would entitle the petitioner to relief under any theory of law.” Wilkinsburg Police Officers Association v. Commonwealth, 535 Pa. 425, 431, 636 A.2d 134, 137 (1993). Following these principles, the defendants’ preliminary objections are sustained in part and overruled in part.

Corporate Negligence

Defendants’ first preliminary objection seeks to strike plaintiffs’ claim against the Beverly defendants under a “corporate theory” or liability from Count I of the amended complaint because Pennsylvania law fails to recognize such a cause of action against long-term nursing facilities, like Beverly, and because the claim fails to assert a prima facie case for such a cause of action. Specifically, the defendants wish to strike paragraphs 62 through 64.

In Thompson v. Nason Hospital, the Pennsylvania Supreme Court was faced with an issue of first impression: Can a hospital be held liable under a theory of “corporate negligence” in addition to vicarious liability? Under the doctrine of corporate negligence, a hospital owes a direct duty to patients to ensure their safety and well-being. Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991).

The court in Thompson classified the hospital’s duties into four areas: (i) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (ii) a duty to select and retain competent physicians; (iii) a duty to oversee all persons who practice medicine within the hospital walls; and (iv) a duty to formulate, adopt, and enforce rules and policies to ensure quality care is provided to the patients. Thompson, supra at 339, 591 A.2d at 707. “This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. There, an injured party does not have to rely on and establish the negligence of a third party.” Id. (footnote omitted)

In Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997), the Pennsylvania Supreme Court held that:

“Corporate negligence is based on the negligent acts of the institution. ... A cause of action for corporate negligence arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital employees.... Thus, under this theory, a corporation is held directly liable, as opposed to vicariously liable, for its own negligent acts.” Welsh, 548 Pa. at 513, 698 A.2d at 585. (citations omitted)

The Welsh court went on to list the requirements for a plaintiff to plead a prima facie case for corporate negligence:

“To establish a claim for corporate negligence against a hospital, a plaintiff must show that the hospital had actual or constructive knowledge of the defect or procedures that created the harm. ... The plaintiff must also establish that the hospital’s negligence was a substantial factor in causing harm to the injured party.” Id.

In 1998, the Superior Court extended corporate negligence to health maintenance organizations (HMOs). Shannon v. McNulty, 718 A.2d 828, 835 (Pa. Super. 1998). Although the court found that HMOs do not specifically practice medicine, HMOs are involved in the daily decision-making which affects patient care, such as limiting the length of hospital stays, restricting access to specialists, restricting access to therapy, or preventing emergency room care. Id. The Superior Court stated, “we see no reason why the duties applicable to hospitals should not be equally applicable to an HMO when that HMO is performing the same or similar functions of a hospital.” Id. at 836.

In Dontonville v. Jefferson Health System, 2002 U.S. Dist. Lexis 624, 2002 W.L. 59318 (E.D. Pa. 2002), the Eastern District Court, in reviewing the concept of corporate negligence’s applicability to a corporate health system including a hospital and physicians’ group as corporate entities, allowed the action to proceed, citing a state court of common pleas’ decision in Oven v. Pascucci, 46 D.&C.4th 506, 512 (Lacka. Cty. 2000), for the holding that corporate negligence is an evolving doctrine under Pennsylvania law, which theory is based upon the systemic or institutional negligence of the defendant itself rather than the conduct of individual employees.

The issue of extending corporate liability to a nursing home has only been addressed once in a Pennsylvania court. In Frantz v. HCR Manor Care Inc., 64 D.&C.4th 457 (Schuylkill Cty. 2003), a court of common pleas, finding that the plaintiff pleaded sufficient facts which would entitle the plaintiff to relief under the corporate negligence theory, dismissed a defendant’s preliminary objection to a corporate liability claim against a nursing home.

Of note is the Superior Court’s nonprecedential memorandum decision in Stevens v. Pacopis and Ameriplan USA Dental Care, per Justices Stevens, Olszewski and Beck, PICS case no. 03-1828 (Pa. Super. 2003), wherein this Superior Court panel held that the defendant discount dental service provider was not liable for the dental negligence of Dr. Pacopis under the theory of corporate negligence because of its not evidencing the characteristics of a health maintenance organization. Frantz v. HCR Manor Care Inc., 64 B.&C.4th 457 (Schuylkill Cty. 2003).

Plaintiffs aver that the corporate defendants knowingly, and with reckless disregard for the health and well-being of the facility residents, grossly understaffed and under-funded the facility; failed to appropriately train the staff; and knowingly permitted Ms. Capriotti to be neglected. Plaintiffs aver that Ms. Capriotti’s injuries were caused by the poor treatment that she received at the facility and by the acts and omissions of the corporate owners, including Beverly Enterprises Inc. and Beverly Health and Rehabilitation Services Inc. (corporate defendants). As outlined by the plaintiffs, the corporate defendants exercised comprehensive control over the treatment and care accorded to the plaintiff, and in this regard acted analogously to a hospital or HMO, and not simply as a facility where the patient was housed while others performed medical care.

If believed, the facts pled show that the defendants had actual or constructive knowledge of the defect or procedures that created the harm to the plaintiff. Likewise, they would show that the defendants’ negligence was a substantial factor in causing harm to the plaintiff.

This court finds that the plaintiffs have pled sufficient facts which, if believed, would entitle the plaintiff to relief under the corporate negligence theoiy. The defendants’ preliminary objections to the plaintiffs’ claims of corporate liability are dismissed.

Lack of Specificity

Defendants’ second preliminary objection concerns allegations of insufficient specificity in the pleadings. Defendants request that plaintiff be required to amend her amended complaint so as to sufficiently apprise defendants of the precise allegations forming the basis for her complaint or that certain paragraphs be stricken from the amended complaint.

Pa.R.C.P. 1028(a)(3) provides that a party may file a preliminary objection for “insufficient specificity in a pleading.” Pa.R.C.P. 1019(a) requires plaintiffs to plead the material facts that support the claims. A complaint is sufficiently specific if it provides the defendant with enough facts to enable the defendant to frame a proper answer and prepare a defense. Commonwealth ex rel. Milk Marketing Board v. Sunnybrook Dairies Inc., 29 Pa. Commw. 210, 370 A.2d 765 (1977).

A complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim. Cardenas v. Schober, 783 A.2d 317 (Pa. Super. 2001). The purpose of the pleadings is to place a defendant on notice of the claims upon which he will have to defend. City of New Castle v. Uzamere, 829 A.2d 763 (Pa. Commw. 2003).

In addition to other objections, defendants object to use of “inter alia” in several paragraphs of the plaintiffs’ amended complaint. As defined by Black’s Law Dictionary, seventh edition, “inter alia” is Latin for “among other things.” The defendants also object to other qualifying language. For example, the defendants object to the use of “such as” in paragraph 65(d) which accuses Beverly of failing to protect the plaintiff from injuries “such as” her fractured arm, leg, and knee; the use of “including” in paragraph 65(g) which accuses Beverly of failing to maintain appropriate records, “including” a failure to monitor and document changes in plaintiff’s condition.

Defendants object to paragraph 65(a) which alleges that Beverly failed “to hire appropriately trained staff’ on grounds that the plaintiffs failed to identify what plaintiffs consider to be appropriate. Defendants object to various other paragraphs on similar grounds.

A pleading must achieve its purpose of informing the adverse party or parties and the court of the matters at issue. PennDOT v. Shipley Humble Oil Company, 29 Pa. Commw. 171, 370 A.2d 438 (1977). However, this court has “broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” Pike County Hotels Corporation v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978).

It is the determination of this court to overrule all of defendants’ objections concerning the lack of specificity except for the objections concerning the plaintiffs’ use of “inter alia” language. Plaintiffs’ use of the language “inter alia” violates the aforementioned rule and that language is hereby stricken from the plaintiffs’ amended complaint. Plaintiffs shall have 20 days to file a more specific complaint if plaintiffs choose to replace the “inter alia” language with more specific allegations.

Punitive Damages

Defendants argue that plaintiffs’ claim for punitive damages should be dismissed because the alleged negligence forming the basis of plaintiffs’ claim does not rise to the level of conduct necessary for the imposition of punitive damages as a matter of law. Plaintiffs aver that Ms. Capriotti’s injuries were caused by the poor treatment that she received at the facility and by the acts and omissions of the corporate defendants.

The Medical Care Availability and Reduction of Error Act enacted March 20, 2002, recognizes that punitive damages may be imposed against “health care providers” for willful or wanton conduct or reckless indifference to the rights of others. 40 P.S. §1303.505. The Act specifically includes “nursing home” within the definition of health care provider. Section 1303.503.

Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment, and the like, which constitute ordinary negligence. Restatement (Second) of Torts §908, comment (b). It is incumbent on plaintiff to plead facts amounting to outrageous conduct, i.e., reckless indifference to the interest of others or wanton misconduct on the part of the defendant, in order to support a claim for punitive damages. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980).

Plaintiffs aver that the corporate defendants, in an attempt to maximize profits, knowingly acted with reckless disregard for the health and well-being of the facility residents by increasing the number of acutely ill residents while grossly under-staffing and under-funding the facility and failing to appropriately train the staff.

This court cannot say, as a matter of law, that the defendants did not act with a level of reckless disregard such that a jury would regard an award of punitive damages appropriate. Therefore, the plaintiffs have pleaded sufficient facts which, if believed, would entitle the plaintiff to punitive damages. We hold, as plaintiffs contend, that the second amended complaint contains sufficient facts to state a claim for punitive damages.

Therefore, this court enters the following:

ORDER

And now, June 30, 2004, it is hereby ordered and decreed that, upon consideration of the preliminary objections filed on behalf of defendants Beverly Enterprises Pennsylvania Inc.; Beverly Health and Rehabilitation Services; Beverly Enterprises Inc.; Joyce W. Hoch, in her capacity as administrator of Beverly Healthcare-Uniontown; Vieva Wise Ferda, in her capacity as director of nursing at Beverly Healthcare-Uniontown; and Jaci E. Null, in her capacity as director of nursing of Beverly Healthcare-Uniontown Hospital, applicable law and briefs of counsel, it is hereby ordered and decreed that defendants’ objections to plaintiffs’ amended complaint are overruled except that defendants’ objections to the plaintiffs’ use of “inter alia” language in the amended complaint is sustained. Plaintiffs’ use of “inter alia” in the amended complaint is stricken.

Plaintiffs shall have 30 days to file a more specific complaint if plaintiffs choose to replace the “inter alia” language with more specific allegations.