author: SMYTH, J,

text:
    Williams v. Theodore Q. Thompson Associates

      C.P. of Montgomery County,
    nos. 06-05173 and 0647816.

      Charles J. Schleifer, for plaintiff.

      Theodore Q. Thompson, for defendants.
    August 5, 2010
   SMYTH, J,

On July 27, 2010, we conducted the third in a series of proceedings in open court and heard oral argument on the third motion of Charles J. Schleifer, Esquire, to withdraw as plaintiff’s counsel in these consolidated actions for legal malpractice. We denied counsel’s first two motions to withdraw, without prejudice to renewal should good cause for withdrawal under Pa.R.P.C. 1.16(b) be shown. We also ordered on each of those two prior occasions that plaintiff pay all costs and expenses of litigation going forward, absent agreement by the parties to the contrary. Specifically, in our second order denying withdrawal without prejudice, entered January 7,2010, we directed plaintiff, within 60 days, to pay to counsel, and submit to the court proof of payment of, the sum of $4,700, representing amounts he had demanded under our first order for: (i) $ 1,200 for a medical exam and preparation of a report by a medical expert; and (ii) $3,500 for review of the file and preparation of a report by a legal expert. The second order came with the proviso that failure to provide proof of payment of the stated amount within 60 days would constitute good cause for withdrawal and result in the court’s granting leave to withdraw without further notice.

Plaintiff did not file proof of payment as the order required. Instead, she filed a motion to reconsider our second order. We did not rule on the motion, allowing the 60-day period for compliance with the order to run. Cf. Stephens v. Messick, 799 A.2d 793, 801 (Pa. Super. 2002) (“A motion for reconsideration appeals to the court’s discretion .... Normally, motions for reconsideration expire on their own . . . .”).

After the running of the 60-day period for payment allowed by the order, on March 11,2010, Schleifer filed his third motion to withdraw as counsel, pleading the fact that payment had not been forthcoming as the order required. Counsel also answered plaintiff’s motion for reconsideration. Plaintiff filed separate replies to counsel’s answer to her motion for reconsideration, and to his third motion to withdraw as counsel, and the matter was joined and the July 27 proceeding scheduled and held.

At the hearing, plaintiff again presented her position that, among other things, counsel should not be allowed to withdraw because her and counsel’s original agreement as to contingent fees in the underlying actions provided that he, not she, was to be responsible for costs of litigation. Thus, she argued, as she did in her motion for reconsideration of our order on counsel’s second motion to withdraw, that the parties “have made” an agreement providing for counsel’s payment of costs, and therefore under our order on counsel’s first motion to withdraw, counsel, not she, was liable for all costs of litigation, despite our specific declaration in the order on the second motion to withdraw that she was to pay him the amount of $4,700 within 60 days of the date of the order, January 5, 2010. Thus, in response to the third motion to withdraw, plaintiff sought to litigate again the meaning of the agreement, which we had for a second time reviewed and decided did not support her position before ruling on the second motion to withdraw and ordering her to pay counsel the initial costs of the medical and legal experts that would be necessary for the underlying actions in legal malpractice to go forward.

An additional theme of plaintiff’s written materials, which she did not specifically pursue and we did not explore extensively at the hearing, was that counsel had not duly diligently investigated the various names or aliases of defendant(s) in the underlying actions, Theodore Q. Thompson & Associates, before determining that the latter had insufficient assets upon which to recover even should the underlying actions eventually prevail. Thus goes the argument, which we have also previously considered and ruled upon unfavorably to plaintiff’s position, counsel should not be allowed to withdraw because his conclusion that defendants are basically judgment-proof and any potential recovery in the actions cannot justify the expense of pursuing them is erroneous and faulty.

Plaintiff also at the hearing, which we had steno-graphically recorded, reiterated her theme that counsel had made willfully false statements to the court in his various motions, particularly in stating that plaintiff was a paralegal and thus (presumably) able to represent herself in court, when in fact counsel knew she had not been employed as a paralegal for some 20 years. In her written rebuttal to counsel’s response to her motion for reconsideration of this court’s order on counsel’s second motion to withdraw as counsel, plaintiff went even further, stating:

“Clearly Charles Jay Schleifer, Esquire[,] has misrepresented a material fact to the court. Plaintiff respectfully requests the court strike plaintiff’s counsel’s motion from the record. In the alternative, this should be referred to the Montgomery County District Attorney’s Office for review. Evidence exists in the form of court transcripts that Schleifer had been informed that his client is not a paralegal by profession. Yet counsel has chosen to make that statement over-and-over again even though he has been confronted with evidence as to the falsity of his words. In addition, the statements may also be potential violations of the Rules of Professional Conduct and therefore The Disciplinary Board of the Supreme Court of Pennsylvania must be notified.

“The simple fact remains, Schleifer had the right of refusal and had every opportunity to perform a due diligence search of the defendants before he entered into a legal and binding contract with the plaintiff. The plaintiff should not be penalized for her counsel’s precipitous and greedy behavior.” (Rebuttal pl.’s counsel’s resp. pl.’s mot. reconsider order Jan. 5, 2010, 11-12.) (emphasis added)

At the hearing, plaintiff retreated from the strong wording of her verified rebuttal to counsel’s response to her motion for reconsideration, and said that, although counsel had repeatedly misstated her position as a paralegal, she still trusted him to steward this litigation and wanted him to remain as her counsel.

We now clarify that any statements by counsel about plaintiff’s present or former status as a paralegal were not material to any of our previous orders ruling on the motions to withdraw as counsel, and are not germane to our present inquiry whether counsel has satisfied the standards for withdrawal from the case with court permission under Pa.R.P.C. 1.16(b)-(c) and Pa.R.C.P. 1012(c)-(d). However, if counsel indeed mistook that plaintiff continued to be a paralegal, any mistake may have arisen from the quality of presentation of the various motions and answers she filed on her own in this proceeding, which display above-average legal acumen for a person not licensed to practice law.

Returning to the nut of the matter, after our third hearing, we again revisited, for the fourth time (the previous three times having been after receiving counsel’s three respective motions to withdraw), the agreement as to contingent fees that plaintiff and her counsel entered into in pursuit of the underlying actions for legal malpractice. We note first that the contract, which appears to be a form used by counsel’s law firm, states that it is to constitute and appoint Charles Schleifer (the name is handwritten in) “as my (our) attorney to prosecute a claim for personal injury and/or property damage against Theodore Thompson et al. [name handwritten in].” (Eisenberg Rothweiler Schleifer Weinstein Winkler para. 1.) Of course, the claim against Theodore Thompson is for legal malpractice, not for direct personal injury and/or property damage as the form indicates. Following is a passage with the name of the claimant (plaintiff) handwritten in stating the cause of action arose on six separate dates (handwritten in), which, the court sunrises, are the dates of six separate auto accidents underlying the claims for which plaintiff originally retained Thompson to represent her. The text of the provision over which all the controversy in the present case has swirled is as follows:

“Out of whatever sum is secured by my/our attorney or by me/us from the above defendant, either by way of settlement or verdict, the said attorney, for and in consideration of the professional services to be rendered by him/her in the investigation, institution and general conduct of the said case shall retain or be entitled to 40 percent out of the net amount after deduction of costs, which include all out-of-pocket expenses, including interest actually paid by the firm (at the prevailing rate) on those costs, incurred by my/our attorney in representing me/us in this matter. It is further understood that if my/ our attorneys decide at some future time, for whatever reason, that they do not wish to continue representing me/us, I/we will not object to allowing my/our attorneys to withdraw from the case, without prejudice to them. ... If there is no recovery on my/our behalf, my/our attorneys will pay all costs of litigation including interest. There will be no charges to me/us, and they will not seek anything from me/us.” (Eisenberg Rothweiler Schleifer Weinstein Winkler para. 2.)

After the hearing on counsel’sfirst motion to withdraw, we entered an order denying the motion without prejudice to counsel’s again moving to withdraw should good cause under Pa.R.P.C. 1.16(b) exist or arise, specifically finding that the clause in the contract, “It is further understood that if my/our attorneys decide at some future time, for whatever reason, that they do not wish to continue representing me/us, I/we will not object to allowing my/our attorneys to withdraw from the case, without prejudice to them,” was not in the spirit of the rule, which enumerates six specific grounds upon which counsel may withdraw from representing a client, followed by a catchall permitting withdrawal if “other good cause for withdrawal exists,” Pa.R.P.C. 1.16(b)(7). We found that the clause in the contract permitting counsel to withdraw “for whatever reason” did not satisfy the “good cause” standard of the rule, without, however, expressly determining counsel could not, in fact, meet that standard in the circumstances of the case.

We then penned the fateful language, “Unless counsel andplaintiffhave made or make an agreement in writing to the contrary, from this point forward plaintiff shall be solely responsible for all court costs and expenses of litigation within the meaning of Pa.RR.C. 1.8(e).” (emphasis added) (Order, May 19,2009.) With this provision placing the costs and expenses of litigation squarely on the client, we meant to address counsel’s stated concerns that, given the questionable financial status of defendants as determined by counsel, the cost of pursuing this litigation would probably far outweigh any potential recovery from them even should the cases against defendants ultimately succeed, and it would be grossly unfair to place on his shoulders alone the substantial costs of continuing to pursue the litigation against his own wishes and professional judgment. Cf. Pa.R.P.C. 1.16(b) (6) (“[A] lawyer may withdraw from representing a client if: ... (6) the representation will result in an unreasonable financial burden on the lawyer . . . .”). We included the emphasized language, “/ujnless counsel and plaintiff have made or make an agreement in writing to the contraryonly to clarify that we were not barring counsel and plaintiff from freely contracting between themselves should they come to a different agreement for sharing costs, nor were we deciding as a fact that they had never before made such an agreement. What we were not doing was finding as a matter of law that the language of the agreement quoted above had placed on counsel the burden of paying all costs of litigation in advance.

Following the first order counsel, in accordance with its terms, demanded that plaintiff pay certain enumerated costs necessary to resume the litigation. She did not do so, whereupon, after a reasonable period, counsel filed his second motion to withdraw, pleading nonpayment. Plaintiff filed her response, and we convened another hearing in open court. In ruling on the second motion, we decided to be more specific as to the directive motivating our first ruling, that counsel would not be required to continue his representation in the matter unless plaintiff bore the costs of litigating it. We ordered, “plaintiff shall again be solely responsible for all court costs and expenses of litigation within the meaning of Pa.R.P.C. 1.8(e).” (Order, January 7, 2010.) We then specifically ordered that within 60 days she pay certain amounts laid out in counsel’s motion, totaling $4,700, representing the initial costs of retaining the services of medical and legal experts, whose reports, opinions, and testimony would be indispensable to the prosecution of these actions in legal malpractice (which, by extension, would require proof of the merit of and the amount of damages in the underlying auto-accident actions in which defendants allegedly committed the malpractice). We further ordered her to pay within a reasonable time all other reasonable costs demanded by counsel. We stated that failure to comply with the directive to pay the $4,700 within 60 days and to file proof of payment thereof with the court “shall constitute good cause and result in the court’s granting leave to withdraw without further notice” (order, January 7, 2010) and that failure to comply with a demand to pay further reasonable costs would be grounds for withdrawal upon further motion. Indeed, we found that requiring counsel to continue representing plaintiff while financing these costs necessary to litigation in which, in his professional judgment, there was little hope of recouping them, let alone recovering for his client, would be an intolerable imposition on the practice of law and an abuse of judicial discretion.

We now specifically address the provision of the agreement, which, according to plaintiff, shifts to counsel the responsibility to pay all costs of litigation, so that, under our first order, the parties “have made” an agreement for counsel to pay all costs and he remains liable for them, despite the specific proviso of our second order directing plaintiff to advance counsel sums for payment of medical and legal experts. We do not read the agreement as requiring counsel to pay all costs of litigation until the case is tried to conclusion. Rather, we interpret the clause, “If there is no recovery on my/our behalf my lorn attorneys will pay all costs of litigation including interest,” to mean that if the case is tried to conclusion and is unsuccessful in achieving a recovery, the attorneys would be responsible for the costs — just as, under the immediately preceding clause, if there was any recovery at the conclusion of the case, the attorneys would be entitled to 40 percent of the net amount after deduction of costs, including all out-of-pocket expenses incurred by the firm. We do not interpret the clause to mean that if the attorneys determine in the course of the litigation that defendants are judgment-proof and there is no hope of recovery against them even should plaintiff win a judgment, the attorneys must continue to lay out all the substantial costs necessary to litigate a claim of legal malpractice to a judgment with no expectation of recouping the costs, let alone any monetary reward for the client.

Furthermore, we must read the agreement’s provisions as to costs, inarticulately drafted as they may be, in light of the provision allowing counsel to withdraw from the case “at some future time, for whatever reason.” While we found in our order on counsel’s first motion to withdraw that this provision was not, read in isolation, in the spirit of Pa.R.P.C. 1.16(b), which allows counsel to withdraw for certain enumerated reasons or for “other good cause,” we did not either strike the provision of the agreement allowing counsel discretion to withdraw, or find as a fact that counsel did not then or at some future time would not have good cause under the rule to withdraw. Rather, we found that given counsel’s stated concerns at that time that the necessary costs of litigating an expensive lawsuit in legal malpractice would far outweigh any expectancy of recovery, making his continued pursuit of the case contingent on plaintiff’s payment of certain costs was a fair compromise of the provision that allowed his withdrawal “for any reason.” In that event, plaintiffs failure to comply with our order requiring her to advance certain costs of the litigation would constitute good cause under the rule for counsel no longer to continue his representation in the matter. Indeed, it would be patently unfair and contrary to the intendment of the agreement read as a whole to deny counsel’s request to withdraw, and yet require him to continue to advance costs of the litigation.

We now find, based on the papers filed of record and plaintiff’s admissions in open court, that she has failed to comply with our two prior orders making counsel’s continued representation contingent on her advancing to him certain costs to keep the litigation alive. We further find, based on plaintiff’s statements, that there is no reasonable prospect in the foreseeable future that she will be able to comply with our orders or advance the specific costs of retaining experts we directed her to pay. We also find that it would be unconscionable both under the parties’ agreement construed in its entirety and under spirit of the Rules of Professional Conduct to require counsel to remain in this case while advancing the substantial costs of the litigation for which he sees little or no chance of recovery. That was the balance we sought to achieve in each of our two prior orders. Having finally come to the conclusion that that balance is impossible to execute, we will now finally grant counsel’s request to withdraw (as, under our second order, we could have done without counsel’s filing of a third motion based simply on plaintiff’s failure to submit proof of payment of the costs specified in our second order).

Rule 1.16 (declining or terminating representation) gives this court discretion to grant counsel permission to withdraw from representation where the representation will result in an unreasonable financial burden on the lawyer....” Pa.R.P.C. 1.16(b)(6). We find as a fact and as a matter of law that requiring counsel to continue his representation in this matter without plaintiff’s advancement of certain costs of the litigation would result in an unreasonable financial burden on him, and that therefore we should allow hitn to withdraw under that provision of the rule.

We also find that plaintiff’s suggestions that, for stating to the court that plaintiff is a paralegal, counsel should be referred both to the Montgomery County District Attorney’s Office and to the Pennsylvania Supreme Court’s Office of Disciplinary Counsel bespeak a deterioration of the relationship between client and counsel justifying counsel’s withdrawal from the case for “other good cause” under Pa.R.P.C. 1.16(b)(7). (We, incidentally, find nothing in counsel’s statements or conduct in the case that would warrant referring him to the district attorney or disciplinary counsel, and this court will make no such referral.)

We hereby order as follows: (1) Counsel’s third petition to withdraw is granted pursuant to Pa.R.C.P. 1012(c)-(d). (2) The prothonotary shall enter this order in the docket and give written notice thereof pursuant to Pa.R.C.P. 236(a)(2)-(b), to all parties, including plaintiff herself, using as her addresses both that reflected on the official dockets of this court (1959D Cabernet Place, Easton, PA 18045), and that given in her letter to this judge covering a copy of her rebuttal to counsel’s response to her motion to reconsider (1808A Merlot Drive, Easton, PA 18045), although, contrary to the requirement of Pa.R.C.P. 1025, the latter address is endorsed on neither the rebuttal itself filed with the prothonotary, nor on any of the other papers she herself filed in this court.


source: Caselaw Access Project

author: DANTOS, J,

license: Public Domain

text:
    Commonwealth v. Huffman

      CP. of Lehigh County,
    no. 510612009.

      Jeffrey Burd, deputy district attorney, for Commonwealth.

      Stephen Vlossak Jr., for defendant.

      August 13, 2010
   DANTOS, J,

Defendant, Curtis Darrel Huffman, has been charged in the above captioned matter with driving under the influence of alcohol (general impairment: third offense; highest tier), and the summary offenses of driving while operating privilege is suspended or revoked. Presently before this court is defendant’s omnibus pretrial motion the nature of a motion to suppress and a motion to dismiss. An evidentiary hearing relative to defendant’s motion was conducted before this court on July 13, 2010. At the evidentiary hearing, the Commonwealth presented the testimony of Officer Mark Nederostek of the Whitehall Township Police Department. The defendant did not present any evidence. Based on the testimony of the Commonwealth’s witness, we make the following findings of fact.

FINDINGS OF FACT

(1) On July 12,2009, at approximately 7:40 p.m., Officer Mark Nederostek of the Whitehall Township Police Department was responding to a motorist in distress call that indicated that there was a disabled vehicle in the area of the Whitehall Auto Parts Store on MacArthur Boulevard in Lehigh County, Pennsylvania.

(2) Upon arriving on scene in a marked police cruiser and in full uniform, Officer Nederostek observed a green Kia Spoilage vehicle in the Whitehall Auto Parts Store parking lot. Officer Nederostek approached the subject vehicle and identified himself as a police officer. The lone individual in the vehicle exited through the driver’s side of the car.

(3) Officer Nederostek requested identification from the individual. An expired Pennsylvania driver’s license was produced, identifying the subject person as the defendant, Curtis Huffman. The defendant did not furnish Officer Nederostek with a valid identification card. In fact, the defendant’s driving record indicated that the defendant’s driver’s license had been suspended due to a previous driving under the influence conviction. (C. ex. 2.)

(4) Officer Nederostek observed that the defendant appeared shaky, unstable and smelled of alcohol. The defendant’s speech was slurred and not the natural cadence. Therefore, Officer Nederostek performed a portable breath test on the defendant. The results yielded a blood alcohol content of .24 percent.

(5) Based on the officer’s training and experience, he determined that the defendant was under the influence of alcohol and transported him to Health Network Laboratories for blood to be drawn. The lab report indicates that the defendant’s blood alcohol content was .22 percent. (C. ex. 1.)

(6) The subject vehicle was not running at the time of the incident. However, Officer Nederostek observed the keys in the ignition of the Kia Spoilage and the hood of the vehicle was warm to the touch.

(7) Officer Nederostek did not see the defendant driving the vehicle. Additionally, at no time did the defendant state that he was driving the vehicle or otherwise admit such action. In fact, Officer Nederostek was unaware if the vehicle was capable of running properly and did not know how long the vehicle had been in the parking lot of the Whitehall Auto Parts Store.

CONCLUSION OF LAW

(1) The arrest of the defendant was made without probable cause and was unlawful.

(2) The blood evidence seized as a result of the defendant’s arrest was unlawfully obtained.

(3) All evidence seized as a result of the arrest must be suppressed.

(4) All charges filed against the defendant must be dismissed because he was unlawfully and illegally arrested.

DISCUSSION

The defendant contends in his omnibus pretrial motion that Officer Nederostek did not have probable cause to conduct a valid warrantless arrest for driving under the influence of alcohol and driving while operating privilege is suspended or revoked, and therefore all evidence stemming therefrom should be suppressed. Additionally, the defendant argues that because the defendant was unlawfully and illegally arrested for driving under the influence of alcohol and driving while operating privilege is suspended or revoked, all of the charges filed against the defendant should be dismissed. We agree with the defendant’s arguments.

Generally, for an arrest to be lawful, it must occur pursuant to a warrant. However, a warrantless arrest is constitutionally valid under the Fourth Amendment to the United States Constitution when it is supported by probable cause. Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979). The determination of whether probable cause exists support a warrantless arrest is based on an evaluation of the totality of the circumstances observed by the officer when making the arrest. Commonwealth v. Clark, 558 Pa. 157, 164, 735 A.2d 1248, 1252 (1999); Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752 (1995). Specifically, under the totality of the circumstances test, probable cause present where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.

In order to establish a prima facie case for driving under the influence, the Commonwealth must have demonstrated that the individual was driving, operating, or in actual physical control of the movement of the vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. See 75 Pa.C.S. §3802(a)(1); 75 Pa.C.S. §3802(c). In the instant case, Officer Nederostek provided ample evidence to support his belief that the defendant was under the influence of alcohol. Indeed, Officer Nederostek testified that the defendant was shaky, unstable, smelled of alcohol. The defendants speech was slurred and not the natural cadence. However, Officer Nederostek did not have probable cause to arrest the defendant on the charge of driving under the influence. Based on the totality of the circumstances, the record evidence failed to establish that the defendant was actually driving the vehicle. Officer Nederostek had received a dispatch to the Whitehall Auto Parts Store for a all of a distressed motorist indicating that the vehicle was disabled. Upon arriving on the scene, the subject green Kia Sportage was parked in the parking lot, with the defendant emerging from the driver’s seat. At no time did Officer Nederostek see the defendant driving the vehicle. Additionally, the defendant did not state that he was driving the vehicle or otherwise admit such action. In fact, Officer Nederostek was unaware if the vehicle was capable of running properly and did not know how long the vehicle had been in the parking lot of the Whitehall Auto Parts Store, While Officer Nederostek did testify that the keys were in the ignition and that the hood was warm to the touch, this court notes that this testimony is inconsistent with that provided at the preliminary hearing. The officer’s belief must be objective in light of the surrounding circumstances. Because evidence of a vital element is lacking, i.e. that the defendant was driving, operating, or in actual physical control of the movement of the vehicle, there is no indication that the defendant was engaged in the criminal behavior for which he was arrested. Consequently the Commonwealth failed to establish a prima facie case of the charges and the aforementioned charges must be dismissed.

ORDER

Now, August 13, 2010, upon consideration of defendant’s omnibus pretrial motion, and after hearing held on July 13, 2010, and for the reasons stated in the accompanying opinion,

It is hereby ordered that the defendant’s omnibus pretrial motion is granted and the charges are dismissed.

      . 75 P.S. §3802(a)(1); 75 PS. §3802(c).

      . 75 P.S. § 1543(a); 75 P.S. §1543(b)(l).

      . A field sobriety test was not performed on the defendant because he stated that recently he had suffered a logging injury.

      . The testimony at the preliminary hearing conducted on December 9,2009, is not consistent with the officer’s testimony at the time of the hearing on defendant’s omnibus pretrial motions in this regard. At the preliminary hearing, OfficerNederostek indicated that he observed the keys in the ignition after the defendant was already taken into custody. In contrast, at the evidentiary hearing on July 13, 2010, Officer Nederostek stated that he noted the keys in the ignition prior to arresting the defendant. Additionally, the transcript of the preliminary hearing is void of testimony that the hood of the Kia Sportage was warm to the touch.

      . It is axiomatic that the Commonwealth must show that the defendant was driving the vehicle in order to have presented a prima facie case of driving while operating privilege is suspended or revoked, See 75 P.S. §1543(a), 75P.S. §1543(b)(1). Accordingly, the same argument applies to these summary charges.


author: MINORA, J,

text:
    Spangenberg Area Property Association v. Spangenberg

      C.P. of Lackawanna County,
    no. 2008 CV 5002.

      Joel M. Wolff, for plaintiffs.

      Marx R. Zimmer, for defendants.
    June 24, 2010—
   MINORA, J,

I. INTRODUCTION AND BACKGROUND

Plaintiffs are primarily seeking relief in the form of a permanent injunction, intertwined with ancillary claims for nuisance, violation of the Unfair Trade Practices and Consumer Protection Law, slander of title and invasion of privacy, all relative to their purported lake rights at Lake Spagenberg,

The defendants are counterclaiming for $2,425 and unspecified punitive damages for added costs incurred by their water company, Spangenberg Enterprises due to the Property Owner’s Association (SAPOA) treating of the lake with algaecides and herbicides.

By way of background, approximately 60 years ago, George Spangenberg and his father created a man-made lake, known as Lake Spangenberg. The lake was constructed by building an earthen dam on a large parcel of real estate owned by George Spangenberg’s father, Virgil Spangenberg, and located in Jefferson Township, Lackawanna County, Pennsylvania. George Spangenberg purchased said parcel which included Lake Spangenberg and its surrounding real estate. For approximately the last 45 years, George Spangenberg has subdivided, marketed and sold the remaining real estate lots which surround Lake Spangenberg. All of the lots marketed and sold by George Spangenberg enjoy deeded lake rights to use and enjoy Lake Spangenberg. For example, the Wotanises own a lake-front property with deeded lake rights “to swim, boat, bathe and fish...” in Lake Spangenberg. The Wotanis lake-front property runs “along the shore” of Lake Spangenberg. Similarly, the Fryes also own a lake-front property with deeded rights to use and enjoy Lake Spangenberg. The Fryes’ lake-front property runs “along the shore of Lake Spangenberg.” Both the Wotanises and Fryes annually pay George Spangenberg a lake rental fee. The Association (SAPOA) represents the interests of persons who enjoy deeded rights to use and enjoy Lake Spangenberg, such as the Fryes and the Wotanises.

In approximately 2004, the Association, in response to complaints from its members that they could no longer use Lake Spangenberg because it was inundated with weeds, lily pads and algae, decided to legally treat Lake Spangenberg with algaecides and herbicides so that the members could exercise their deeded lake rights. To that end, the Association (SAPO A), by and through a licensed professional, applied for and received a permit to legally treat Lake Spangenberg from the proper agencies of the Commonwealth of Pennsylvania.

Plaintiffs commenced this instant action to protect themselves and their property rights against what they felt to be continued attacks upon same by George Spangenberg and his daughter, Donna O’Hara.

Specifically, these alleged actions included defendants publicly and privately proclaiming they were suspending the deeded lake rights of the Wotanises and the Fryes even though defendants admitted they had no lawful or legal authority to take such actions.

Additionally, defendants allegedly interfered with the legal lake treatment of Lake Spangenberg even though the same was sanctioned by the Department of Environmental Resources and the fish and boat commission. There is even a disputed allegation of assault by Ms. O’Hara against Mr. Frye and vice-versa.

Against that backdrop, the court eventually heard a non-jury trial on March 11,2010. The parties elected not to have a transcript of that proceeding made and filed of record. They subsequently submitted proposed findings of fact and conclusions of law. Since that is the case, we can now issue our general findings and non-jury verdict in accordance with Pa.R.C.P. 1038(b).

II. GENERALIZED FINDINGS

The court finds it quite striking that the parties do not dispute the fact that the deeds for the plaintiff Wotanis and plaintiffs Frye either contain or by virtue of their claims of title are subject to the following clause:

“And for the further consideration of an annual rental of $10 the said grantors herein grant and convey unto the said grantees, their heirs and assigns, the right of access to said lake, including the margin of land between said lake and the herein above described premises, the same always to remain unobstructed and the right in the said grantees, their heirs and assigns, and guests to swim, boat, bathe andfish therein.” See plaintiffs’ exhibits 1(a) through (c) and (2). (emphasis added)

While Mr. Spangenberg retains ownership of a five-foot to 15-foot wide perimeter around the lake, the property owner’s right of access clearly does and must remain unobstructed. Additionally, the right of the grantees (plaintiffs herein) and their guests to swim, boat, bathe and fish on the lake are express rights the grantees enjoy and in their deeds are rights for which the Spangenberg family has collected a fee for decades. These lake rights were leased to enhance the marketability of the Spangenberg lots being sold.

Since the language of the granting deeds is clear and unambiguous there is no doubt it establishes the above rights for the Wotanises and the Fryes to enjoy as well as others similarly situated. This is so because the language of the deed, the purpose of the language in granting lake rights and the fact valuable consideration has been collected annually by the grantor (the $10 fee and enhanced marketability) are clear and undisputed. See generally, In re Conveyance of Land Belonging to the City of Dubois, 461 Pa. 161, 335 A.2d 352 (1975).

Logically, in order to enjoy and use their deeded and/ or bargained for lake rights including the right to swim, boat, bathe and fish, such activity would be next to impossible if the lake became overgrown with algae and vegetation. This is precisely why the Department of Environmental Protection (DEP) and the Commonwealth of Pennsylvania Fish and Boat Commission allowed the Association (SAPOA) to treat Lake Spangenberg over Mr. Spangenberg’s objection. (See plaintiffs’ exhibit 17.) 58 Pa. Code §51.61 and DEP Reg. §91.38.

Since the plaintiffs have clearly established their deeded rights for use and enjoyment of Lake Spangenberg, any interference or attempt at revocation of lake rights by the defendants would be unlawful.

Clearly, a permanent injunction is in order since, (1) the plaintiffs’ right to relief is necessary to prevent immediate and irreparable harm which cannot be compensated for by damages in that the plaintiffs will lose their ability to enjoy their real property interests, their lake rights; (2) a greater injury will occur to the plaintiffs from refusing said injunction rather than granting it; (3) a permanent injunction will restore the parties to status quo as it existed immediately before the alleged wrongful conduct of interference with their lake rights; (4) the alleged wrong of the defendants is clearly manifest; and (5) from the clear interpretation of the deed language set forth above plaintiffs’ right to relief is likewise clear as is their likelihood of prevailing on the merits. See Chester Community Charter School v. Commonwealth Department of Education, 996 A.2d 68 (Pa. Commw. 2010). Since the core issues in this case can be analyzed and decided on deed construction and injunction issues we can now render a verdict and eliminate the need to dwell on some of the other ancillary theories expounded by the plaintiffs.

However, we will dispose of all claims in our non-jury verdict.

III. NON-JURY VERDICT

“(1) Defendants’ conduct constitutes a nuisance in that it significantly invades the use and enjoyment of plaintiffs’ land at Lake Spangenberg. See Harford Penn-Cann Service Inc. v. Zmblosky, 378 Pa. Super. 578, 581, 549 A.2d 208, 209 (1988).

“(2) Defendants are permanently enjoined from attempting to improperly suspend or interfere with the deeded lake rights of the Fryes and the Wotanises and any others similarly situated.

“(3) Defendants are permanently enjoined from interfering with the legal water treatment of Lake Spangenberg as long as same is approved by the appropriate state governmental agencies.

“(4) Defendants are permanently enjoined from entering the lake property of the Frye’s or the Wotanises’ in a manner in which interferes with their enjoyment of the easements and covenants set forth above. While the Spangenberg’s retain the right to enter the perimeter of the lake since they still own it in fee, they cannot engage in any disruptive behavior which interferes with the quiet enjoyment of unobstructed access the plaintiffs enjoy to said lake. For example, the defendants right to walk around the perimeter of the lake would be permissible, but any behavior/actions such as stationary occupation of the fee simple perimeter, the placing of obstructions or behavior incompatible with those rights to swim, boat, bathe and fish which has been purchased by the Fiyes and Wotanises and others similarly situated would be strictly prohibited and subject to court sanctions for contempt. This approach recognizes the defendants’ enhanced marketability of the land inherent with the granting/access to a grantee to use and enjoy said lake for the purposes noted.

“(5) The defendants are permanently enjoined from incorrectly invoicing any association member other than fees for which they have legally bargained.

“(6) The defendants are permanently enjoined from invading plaintiffs’ Fiyes’ and Wotanises’ privacy in their homes as well as relative to their lake rights.

“(7) The defendants are permanently enjoined from disparaging the Fryes’ or Wotanises’ title/rights as established above, through illegal threatened revocation of said rights.

“(8) The association UTPCL claim is addressed by the paragraph five of this verdict.

“(9) The assault claim of plaintiff Michael Frye against defendant, Donna O’Fiara is dismissed, since the testimony is not conclusive as to who may have first struck whom.

“(10) The counterclaim of defendant George Spangenberg against the.association (SAPOA) is dismissed since the association received the proper permits from the Commonwealth of Pennsylvania, Department of Environmental Protection and the fish and boat commission.

“(11) The parties are to bear their own costs and attorney’s fees.

It is so ordered June 24, 2010.


author: O’DELL SENECA, P.J.,

text:
    Pettko v. Pennsylvania-American Water Company

      C.P. of Washington County,
    no. 2010-2126.

      Stephen J. Del Sole and Patrick K. Cavanaugh, for plaintiffs.

      Roy W. Arnold and Donnci M. Doblick, for defendant.
    August 27, 2010
   O’DELL SENECA, P.J.,

Presently before the court are the defendant’s preliminary objections to the amended complaint. For the reasons set forth herein, this court shall sustain the preliminary objections and transfer this action to the Public Utility Commission.

The plaintiff, C. Leslie Pettko has filed a putative class action against the defendant, Pennsylvania American Water Company (PAWC), alleging that PAWC billed rate increases for the distribution system improvement charge (DSIC) and state tax adjustment surcharge (STAS) prior to the effective date set by the Public Utility Comission (PUC). See plaintiff’s memorandum of law at p. 5. For example, Pettko’s billing cycle ran from June 18,2009 to July 16, 2009, and the DSIC rate increase was effective July 1,2009. See plaintiff’s amended complaint ¶¶30-32. Pettko claims that he was billed the increased DSIC rate throughout the above billing cycle; in other words, that rate increase was not pro-rated. Id. at ¶¶31 and 33. In addition, PAWC did not pro-rate the October DSIC rate increase. Id. at ¶¶34-35. Pettko alleges that PAWC failed to pro-rate the STAS over the billing cycle which straddled its effective date, being Januaiy 1, 2010. Id. at ¶¶37-40. PAWC is also accused of improperly rounding Pettko’s bill not to the nearest cent, but instead upwards to the next cent. Id. at ¶¶41-46. To use Pettko’s example, PAWC is supposedly rounding a charge of $ 1.001 upwards to reflect a billed amount of $1.01. Id. at ¶41. In light of these alleged deceptive billing practices, Pettko maintains that PAWC has violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§201-1 — 201-9.3 etseq., (UTPCPL) breached their contract, and committed the tort of conversion. See id. and plaintiff’s memorandum of law atp. 5.

The standard of review for preliminary objections is well-established:

“In considering preliminary objections, we must consider as true all well-pleaded material facts set forth in the petition and all reasonable inferences that may be drawn from those facts. Sheffield v. Department of Corrections, 894 A.2d 836 (Pa. Commw. 2006). Preliminary objections will be sustained only where it is clear and free from doubt that the facts pleaded are legally insufficient to establish a right to relief. Id. We need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Myers v. Ridge, 712 A.2d 791 (Pa. Commw. 1998).” Richardson v. Beard, 942 A.2d 911, 913 (Pa. Commw. 2008).

Further, when preliminary objections “raise a question of subject matter jurisdiction, ‘[t]he trial court’s function is to determine whether the law will bar recovery due to a lack of subject matter jurisdiction.” Mazur v. Trinity Area School District, 926 A2d 1260, 1265 n.5 (Pa. Commw. 2007); (quoting Kimmel Township Taxpayers Association v. Claysburg Kimmel School District, 146 Pa. Commw. 57, 62, 604 A.2d 1149, 1152 (1992)).

PAWC makes a simple argument in support of their preliminary objections — that primary and exclusive jurisdiction of Pettko’s allegations lies with the PUC and not the court of common pleas, as these claims encompass PAWC’s rates and billing practices. Pettko responds that his allegations do not implicate the regulatory authority of the PUC; but, rather, are cumulative to the remedies of the Public Utility Code.

Under the Public Utility Code, the General Assembly has vested the PUC with supervisory and regulatory power and authority over all public utilities doing business within our Commonwealth. 66 Pa.C.S. §501 (b). As a result, “[i]t is well-settled law that initial jurisdiction over matters involving the reasonableness, adequacy or sufficiency of a public utility’s service, facilities or rates is vested in the PUC and not in the courts.” Morrow v. Bell Telephone Company of Pennsylvania, 330 Pa. Super. 276, 280, 479 A.2d 548, 550 (1984) (quoting DeFrancesco v. Western Pennsylvania Water Co., 291 Pa. Super. 152, 156, 435 A.2d 614, 616 (1981)). “No principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC.” Einhorn v. Philadelphia Electric Company, 410 Pa. 630, 634, 190 A.2d 569, 571 (1963) (quoting Lansdale Borough v. Philadelphia Electric Company, 403 Pa. 647, 650, 170 A.2d 565, 566-67 (1961). The PUC is responsible for regulating utility rates and evaluating proposed tariffs; therefore, “it has particular expertise over such matters.” Springfield Township v. Pennsylvania Public Utility Commission, 616 A.2d 304, 308 (Pa. Commw. 1996) (citing Optimum Image Inc. v. Philadelphia Electric Co., 410 Pa. Super. 475, 600 A.2d 553 (1991). The code broadly defines “rate” as follows:

“Every individual, or joint fare, toll, charge, rental, or other compensation whatsoever of any public utility, or contract carrier by motor vehicle, made, demanded, or received for any service within this part, offered, rendered, or furnished by such public utility, or contract carrier by motor vehicle, whether in currency, legal tender, or evidence thereof, in kind, in services or in any other medium or manner whatsoever, and whether received directly or indirectly, and any rules, regulations, practices, classifications or contracts affecting any such compensation, charge, fare, toll, or rental.” 66 Pa.C.S. §102. (emphasis supplied)

The courts of our Commonwealth have had previous occasion to address primary jurisdiction over matters involving claims against a public utility:

“The doctrine of primary jurisdiction requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme. Our Supreme Court stated in Elkin that the doctrine serves several purposes, chief of which are the benefits to be derived by making use of the agency’s special experience and expertise in complex areas with which judges and juries have little familiarity. Another important consideration is the need to promote consistency and uniformity in certain areas of administrative policy. Once the administrative tribunal has determined the issues within its jurisdiction, then the temporarily suspended civil litigation may continue, guided in scope and direction by the nature and outcome of the agency determination.” Poorbaugh v. Pennsylvania Public Utility Commission, 666 A.2d 744, 749 (Pa. Commw. 1995) (citing Elkin v. Bell Telephone Company, 491 Pa. 123, 133-34, 420 A.2d 371, 376-77, (1980)). (internal citations omitted)

To begin, this court “must look to the essence of the underlying claims, rather than to magic words, in determining where jurisdiction properly lies.” Id. at 750 (citing DeFrancesco v. Western Pennsylvania Water Company, 499 Pa. 374, 378 n.5, 453 A.2d 595, 597 n.5 (1982)). The amended complaint is replete with references to PAWC’s billing practices. Pettko alleges that his bill was “artificially inflated” by PAWC’s rounding practices. Plaintiff’s amended complaint ¶45. He also challenges the way in which the DSIC and STAS were applied, labeling it as “pervasive overbilling” and “pervasively employing billing practices” to require customers to pay increased amounts. Id. at ¶48^)-0); see also, ¶59. Additionally, Pettko maintains that PAWC falsely represented that its billed rates were accurate and authorized; thereby, inducing justifiable reliance on the part of Pettko. Id. at ¶¶50-52, 68. Simply put, Pettko’s claims arise from what he alleges are billing practices contrary to that set forth by the PUC. The issue, then, is whether those allegations may, or should, be heard by this court.

Pettko argues that the code does not nullify other existing common law or statutory causes of action:

“Remedies cumulative. Except as otherwise provided in this party, nothing in this part shall abridge or alter the existing rights of action or remedies in equity or under common or statutory law of this Commonwealth, and the provisions of this part shall be cumulative and in addition to such rights of action and remedies.” 66 Pa.C.S. § 103(c).

In conjunction with this statutory language, Pettko also relies on Byer v. Peoples National Gas Company, 251 Pa. Super. 75, 380 A.2d 383 (1977) to support jurisdiction in this court. This reliance is misplaced.

In Byer, the plaintiff averred that the utility induced them to acquire certain air-conditioning systems in exchange for a special gas rate for air conditioning; however, that discount was eliminated by the PUC in a new tariff. The plaintiff sought damages amounting to the difference between the discounted rate and the higher PUC rate. In reviewing the trial court’s overruling of the defendant’s preliminary objections, the Superior Court stated that “if [the plaintiff] concede[s] the lawfulness and reasonableness of appellant’s rates and only seek damages for [the defendant’s] failure to fulfill its promises in connection with the sale of air-conditioning units, the case is within the jurisdiction of court of common pleas.” Id. at 81, 380 A.2d at 386 ( citing Behrend v. Bell Telephone Company, 242 Pa. Super. 47, 363 A.2d 1152 (1976)).

Pettko treats this statement as a talisman, seeking to ward off the PUC’s jurisdiction behind it. However, Byer is readily distinguishable from the instant matter. This case does not involve the sale of gas-powered air conditioners; rather, it involves allegations that PAWC billed its customers in violation of the PUC’s effective dates and unjustly or unreasonably raised its charges through improper practices Nor does this case involve a private contract between a utility and customer for lower rates than allowable by the PUC’s tariff. But perhaps more importantly, and fatal to Pettko, is the Superior Court’s admonishment, in Byer, that “the nature of a claim dealing with utility rates cannot be disguised by labeling it a contract claim, so as to bypass the refund procedure of the Public Utility Law.” Id. at 81, 380 A.2d at 1386. The Superior Court then remanded the action, because the record was so unclear, and specifically directed the lower court to transfer the case to the PUC if it found the plaintiff was “asking for a refund of an illegally charged rate.” Id. at 82, 380 A.2d at 387.

Section 1312 of the code sets forth the general rule in seeking refunds:

“If, in any proceeding involving rates, the commission shall determine that any rate received by a public utility was unjust or unreasonable, or was in violation of any regulation or order of the commission, or was in excess of the applicable rate contained in an existing and effective tariff of such public utility, the commission shall have the power and authority to make an order requiring the public utility to refund the amount of any excess paid by any patron, in consequence of such unlawful collection . . . together with interest at the legal rate from the date of such excessive payment. [. . .]” 66 Pa.C.S. §1312(a).

Thus, the plain language of section 1312 dictates that issues regarding excessive or improper rates shall be for the PUC to determine, and not the court of common pleas. See Springfield Township, 676 A.2d at 307 (“Section 1312 of the code, 66 Pa.C.S. §1312, authorizes PUC to order a public utility to refund the rates which were (1) unlawful, (2) unjust or unreasonable, or (3) in excess of the rates contained in the public utility’s tariff.”).

This reading is also support by the Superior Court’s decision in Morrow v. Bell Telephone Company of Pennsylvania, 330 Pa. Super. 276, 479 A.2d 548 (1984). There, the plaintiff filed two civil actions against the telephone company arising out of their practices concerning charges for toll calls during non-business hours. One action was in equity and sought class certification; the second action claimed individual damages for tortious and/or contractual wrongs alleged committed by the telephone company. The trial court dismissed the equity action as within the jurisdiction of the PUC and the Superior Court affirmed:

“[Plaintiff’s] equity action was a challenge [defendant’s] rates and to its service practices. Rates and practices regarding deposits are peculiarly and exclusively within the jurisdiction and expertise of the public utility commission. Therefore, they must be addressed to that body. Although [plaintiff’s] complaint contains averments of breach of contract, these averments are but a cover disguising the real thrust of his complaint, which is to challenge the adequacy and propriety of Bell’s rates and service practices.
“If Bell engaged in any illegal practices, the public utility commission has the power and authority to order such practices terminated and discontinued. 66 Pa.C.S. §501. The public utility commission also has the authority to order Bell to make refunds of excessive charges, if any, which may have been levied against Bell’s customers. 66 Pa.C.S. §1312. Because the administrative remedies are adequate to remedy any wrong which appellant may have sustained, ‘the case is exclusively within the PUC’s jurisdiction and no recourse to the courts, outside the normal appellate process, is warranted.’” Id. at 281-82, 429 A.2d at 551. (footnote omitted) (internal citations omitted)

Therefore, like the plaintiff in Morrow, Pettko has a remedy for any alleged excessive or improper billing by PAWC; he can institute and seek a refund action before the commission pursuant to section 1312. See also, 66 Pa.C.S. §1308(c) (permitting commission to fix any unjust or unreasonable rate by order). Nor can Pettko escape the jurisdiction of the PUC by artfully “framing the allegations in contractual and/or trespassory terminology, and demanding damages.” DiSanto v. Dauphin Consolidated Water Supply Company, 291 Pa. Super. 440, 450, 436 A.2d 197, 202 (1981) (citing Elkin, 491 Pa. at 130, 420 A.2d at 375). Furthermore, the implementation of charges, rates, or surcharges set by the PUC is a matter best suited to the expertise of the commission, which initially approved same. See County of Erie v. Verizon North Inc., 879 A.2d 357 (Pa. Commw. 2005) (upholding trial court finding that PUC had primary jurisdiction over claim that Verizon incorrectly billed, collected, and remitted the 911 contribution rate to Erie County). Accordingly, primary jurisdiction for this action lies with the PUC.

The finding that the PUC has primary jurisdiction, however, does not end the inquiry. This court must now determine whether the PUC’s jurisdiction is exclusive, i.e., if the code provides Pettko an administrative remedy that is “adequate and complete.” Feingold v. Bell of Pennsylvania, 477 Pa. 1, 7, 383 A.2d 791, 793-94 (1977); DiSanto, 291 Pa. Super, at 450, 436 A.2d at 202 (1981). If same is not adequate or complete, the PUC’s jurisdiction is not exclusive and an action for damages lies with the court of common pleas, based upon the PUC’s “initial determination of the matters within its realm of expertise.” DiSanto, 291 Pa. Super, at 450, 436 A.2d at 202; see also, Poorbaugh, 666 A.2d at 749; (citing Elkin, supra) (discussing bifurcated procedure when PUC does not have exclusive jurisdiction). Moreover, it is axiomatic that as a “creature of statute, [the PUC] has only those powers which are expressly conferred upon it by the legislature and those powers which arise by necessary implication.” Feingold, supra (citing Allegheny County Port Authority v. Pa. P.U.C., 427 Pa. 562, 237 A.2d 602 (1967) and Delaware River Port Authority v. Pa. P.U.C., 393 Pa. 639, 145 A.2d 172 (1958)).

Here, Pettko, if successful in his complaint before the commission, can be made whole regardless of the specific allegations or prayers for relief contained in his complaint. Under section 1312, assuming the commission finds PAWC’s actions and/or billings to be unreasonable, unjust, or excessive, it can order PAWC to pay a refund of the excessive rates charged plus interest to Pettko and thereby make him whole. DiSanto, 291 Pa. Super, at 450, 436 A.2d at 202; 66 Pa.C.S. §1312. Additionally, the PUC may direct PAWC to terminate any illegal practices. 66 Pa.C.S. §501. It is true that a successful claim under the UTPCPL, which Pettko has pled, could potentially lead (if proven) to the imposition of exemplary or treble damages. 72 P.S. §201-9.2(a). Such damages, if awarded, would go beyond making Pettko whole and serve additional remedial purposes. Schwartz v. Rockey, 593 Pa. 536, 557, 932 A.2d 885, 898 (2007). However, this is not the question posed by a question of the PUC’s exclusive jurisdiction. The only question to be answered is whether the aforementioned remedies are adequate and complete This court is constrained to find so because “these remedies are more than adequate to make [Pettko] whole, the case is exclusively within the PUC’s jurisdiction and no recourse to the courts, outside the normal appellate process is warranted.” DiSanto, 291 Pa. Super, at 450, 436 A.2d at 202.

Accordingly, this court enters the following:

ORDER

AND NOW, August 27 2010, upon consideration of the defendant’s, Pennsylvania American Water Company, preliminary objections to the first amended complaint and the response thereto, it is hereby ordered, adjudged, and decreed that same are sustained for lack of jurisdiction and the above-captioned matter shall be transferred to the Public Utility Commission for disposition pursuant to 42 Pa.C.S. §5103(a).

      . As the representative plaintiff, all references to Pettko necessarily refer to the class, which is comprised of 2,000,000 customers in 370 communities across 36 counties. See plaintiff’s amended complaint ¶¶8-10.


author: QUIÑONES ALEJANDRO, J,

text:
    Klaus v. Kirkland

      Glenn A. Ellis, for plaintiffs.

      Daniel Rovner, for defendants Carrasquillo and P.H.G.I. Associates, Ltd.
    August 12, 2010
   QUIÑONES ALEJANDRO, J,

INTRODUCTION

This matter involves a medical professional liability action brought by Patricia Klaus (plaintiff-Wife) and Herbert Hoffman (plaintiff-Husband) against numerous physicians and affiliated healthcare institutions accused of negligence for failing to diagnose and/or treat plaintiff-Wife’s chronic diarrhea and rectal bleeding. The individual physicians and healthcare providers sued were: Matt L. Kirkland M.D., Pennsylvania Hospital, Trustees of the University of Pennsylvania, Frankford Hospital Bucks County Campus, Joseph E. Kemizian M.D., William L. Kliefoth Jr. D.O., Jose R. Carrasquillo M.D., and P.H.G.I. Associates Ltd.

A review of the official record (docket) reveals that this matter was originally scheduled for trial before the Honorable John M. Younge. However, by order dated December 8, 2008, Judge Younge remanded the case to the compulsory arbitration program. On March 31,2009, an arbitration panel issued a finding in favor of all defendants and against plaintiffs. Thereafter, on April 9, 2009, plaintiffs filed an appeal and requested a de novo jury trial.

On March 20, 2010, following a seven-day trial, the jury rendered a verdict in favor of defendants Dr. Carrasquillo and P.H.G.I. Associates and against plaintiffs finding that defendant Dr. Carrasquillo did not breach the applicable standard of care.

Dissatisfied, plaintiffs filed this appeal contending that the undersigned trial judge erred in permitting expert opinion testimony and/or in charging the jury. This trial judge disagrees and, for the reasons stated herein, respectfully recommends that this appeal be dismissed.

FACTUAL HISTORY

At trial, the following evidence was presented:

In 2003, plaintiff-Wife underwent a Roux-en-Y gastric bypass surgery performed by Dr. Kirkland at Pennsylvania Hospital.

Following this gastric bypass surgery, plaintiff-wife did relatively well until February 27, 2005, when she awoke with severe abdominal pain. She was taken to Pennsylvania Hospital and was diagnosed with a volvulus, a 360 degrees twisting of the small bowel that had been connected to her stomach during the bypass surgery. On February 28, 2005, Dr. Kirkland performed a resection surgery and amputated the segment of the twisted colon while still maintaining the gastric bypass. She was discharged from Pennsylvania Hospital on March 4, 2005. Thereafter, plaintiff-Wife suffered constant abdominal pain and chronic diarrhea.

On March 24, 2005, plaintiff-Wife experienced an onset of severe rectal bleeding and syncope. She was taken by ambulance to the emergency room at Frankford Hospital and later, that same day, was transferred to Pennsylvania Hospital. Several tests were performed upon her admission, including measurements of her vitamin K levels — a biochemical agent responsible for promoting blood coagulation. Critical to this appeal is an understanding of the impact of a patient’s blood levels of vitamin K; i.e.:

“When appropriate, physicians order a blood test referred to as the international normalized ratio (INR) to measure the blood’s ability to coagulate. A patient with a normal amount of vitamin K in the bloodstream will have an INR measurement between 0.8 and 1.2. An INR value above 1.2 reflects an insufficient amount of vitamin K making the patient prone to bleed excessively because the blood is not coagulating as effectively.”

Plaintiff-wife’s vitamin K test results showed that she had an elevated INR measurement of 1.4 and, accordingly, was administered a vitamin K injection. Under normal circumstances, this supplement was expected to remain in the body for up to one month and synthetically increase her vitamin K levels. Subsequent blood studies drawn on March 26th and March 28th showed normal INR measurements of 1.2.

It was during this admission at Pennsylvania Hospital that defendant Dr. Carrasquillo, a gastroenterologist employed by defendant P.H.G.I. Associates, first became involved to plaintiff-Wife’s care. He was called in as a consultant to investigate the cause of her abdominal pain, diarrhea and rectal bleeding. On March 30, 2005, defendant Dr. Carrasquillo, inter alia, performed an upper endoscopy which revealed a normal esophagus with no bleeding; and biopsied small bowel and stomach samples which were found to be normal except for signs of gastritis. On March 31, 2005, Dr. Kirkland discharged plaintiff-Wife from the hospital without seeking further input from defendant Dr. Carrasquillo.

Surprised by plaintiff-Wife’s discharge, defendant Dr. Carrasquillo called plaintiff-Wife at home and scheduled her for a follow-up appointment. On April 4, 2005, plaintiff-Wife kept the appointment with defendant Dr. Carrasquillo and was readmitted that same day into Pennsylvania Hospital under his care. During this second admission, plaintiff-Wife underwent a colonoscopy which showed some diverticula but no other significant findings; an upper endoscopy which showed no active bleeding; and a small bowel study which showed one or two loops of small bowel with mild focal thickening and nodularity. Blood samples were drawn on April 5th, 7th and 9th and were found to have normal INR measurements of 1.2,1.1 and 1.0, respectively. Plaintiff-Wife had an episode of rectal bleeding on or about April 6, 2005, and was stabilized. She was subsequently discharged from the hospital on April 13, 2005.

On April 25, 2005 and May 16, 2005, plaintiff-Wife had out-patient follow-up visits with defendant Dr. Carrasquillo to determine the cause of her abdominal pain, diarrhea, and rectal bleeding. During these visits, defendant Dr. Carrasquillo performed additional studies which were unremarkable, except for a stool sample study which could not rule out bacterial overgrowth, pancreatic insufficiency or short bowel syndrome. To treat these potential conditions, plaintiff-Wife was started on medications and referred to a nutritionist. In addition, defendant Dr. Carrasquillo recommended to plaintiff-Wife that she schedule a double-balloon enteroscopy. This procedure was performed by Jeffery Tokar M.D., at Fox Chase Cancer Center, on July 1, 2005, which did not show a bleeding site or the cause of plaintiff-Wife’s diarrhea.

In the interim, blood samples were taken on April 20, 2005, May 2, 2005 and May 25, 2005, to determine the vitamin K levels and these samples revealed normal INR measurements of 1.1, 1.0 and 1.0, respectively.

On July 14, 2005, plaintiff-Wife consulted with William Lipshutz M.D., defendant Dr. Carrasquillo’s senior colleague, for his perspective on her ongoing medical problems. Following the review of all the test results, Dr. Lipshutz recommended, inter alia, that plaintiff-Wife see a nutritionist and/or meet with Dr. Kirkland to discuss a possible reversal of the gastric bypass surgery.

On August 16, 2005, the last date he had any contact with plaintiff-Wife, defendant Dr. Carrasquillo discussed with her, during a telephone conversation, Dr. Lipshutz’ recommendations.”

On September 2, 2005, plaintiff-Wife had a bloody bowel movement and was taken to the emergency room at Frankford Flospital. She arrived at 3:50 a.m. and was discharged approximately 11 hours later at 2:52 p.m. after the bleeding had subsided. A vitamin K blood study performed during this hospital visit revealed a normal INR measurement of 0.8.

On September 9, 2005, plaintiff-Wife sustained another episode of severe rectal bleeding and was admitted into Frankford Hospital. Shortly after her admission, blood work was done at 6:05 p.m., and her vitamin K levels were found to be normal with an INR measurement of l.O.

On September 10, 2005, after having undergone an upper endoscopy procedure, plaintiff-Wife suffered a massive bleed and coded at 3:40 a.m. Blood products consisting of 12 units of packed red blood cells, two units of platelets, and six units of plasma were emergently transfused into her until approximately 6:53 a.m. A blood study performed at 7 a.m., revealed an elevated INR measurement of 1.5.

During this hospitalization, Robert Golub M.D., operated on plaintiff-Wife and identified the bypassed nonfunctional portion of her stomach as the source of her long-standing off-and-on internal bleeding. Undisputedly, this area of bleeding could not be visualized by any of the scope examinations performed by defendant Dr. Carrasquillo and/or Dr. Takar at Fox Chase Cancer Center. Dr. Golub was able to correct the underlying problem and the bleeding subsided.

ISSUES

In response to an order issued on June 19, 2010, in accordance with Pa.R.A.R 1925(b), plaintiffs on July 13, 2010, filed of record and served onto this trial judge the following verbatim statement of errors complained of on appeal:

“(1) The court erred in allowing the defendant’s expert, Dr. Thornton to testify as to a causation theory that was not in his expert report.
“(2) The court erred in instructing the jury that they could not find that defendant, Dr. Carrasquillo’s failure to prescribe TPN was an act of negligence.”

LAW AND DISCUSSION

Plaintiffs’ appellate issues are similar to the issues raised in their post-trial motion which was denied; to wit: this trial judge erred in admitting certain portions of the expert opinion testimony and/or in charging the jury. This trial judge disagrees.

Initially, a new trial is warranted to achieve justice in those instances where the original trial was tainted, unfair, or marred by error. Harman v. Borah, 562 Pa. 455, 466, 756 A.2d 1116, 1121 (2000). In deciding whether a new trial should be granted, the court must decide whether one or more factual and/or legal mistakes occurred at trial and, if a mistake(s) occurred, whether the mistake is a sufficient basis for granting a new trial. Id. at 467, 756 A.2d at 1122. However, a new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently. Id. Rather, the moving party must have suffered prejudice from the mistake. Id. In making its determination, the trial court must consider, viewing the evidence in the light most favorable to the verdict winner, whether a new trial would produce a different verdict. J.W.S. Delavau Inc. v. Eastern America Transport & Warehousing Inc., 810 A.2d 672, 680 (Pa. Super. 2002).

Absent a clear abuse of discretion, the decision to grant or deny a new trial is within the sound discretion of the trial court. Harman, 562 Pa. at 466, 756 A.2d at 1121. A trial court abuses its discretion if, in resolving the issue, it misapplies the law, or exercises its discretion in a manner lacking reason. Pohl v. NKG Metals Corporation, 936 A.2d 43, 49 (Pa. Super. 2007). It follows that if there is any support in the record for the trial court’s decision to grant or deny the request for a new trial, the trial court’s ruling must be affirmed. J.W.S., 810 A.2d at 680.

Admission of Expert Testimony

In plaintiffs’ first appellate issue, they contend that prejudicial error was committed in allowing defense expert, James J. Thornton M.D., to offer a causation theory that purportedly went beyond the fair scope of his two expert reports. A careful review and comparison of the expert reports with trial testimony belies this contention.

It is well-established that the admission of expert testimony is a matter of discretion for the trial court and will not be remanded, overruled, or disturbed unless there is a clear abuse of discretion. Rettger v. UPMC Shadyside, 991 A.2d 915, 930 (Pa. Super. 2010). Particularly relevant is Pa.R.C.P. 4003.5(c) which prohibits an expert from presenting evidence at trial that exceeds the fair scope of the expert’s report; to wit:

“(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings ... , the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto. However, the expert shall not be prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings.”

In determining whether an expert’s trial testimony falls within the fair scope or the four comers of the pretrial report, the trial court must ascertain whether the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness. Brodowski v. Ryave, 885 A.2d 1045, 1065 (Pa. Super. 2005). The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and the trial testimony is of a nature which would prevent the adversary from making a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Id.

Notwithstanding, a trial court may permit an expert in a medical malpractice action to offer testimony that exceeds the fair scope of the report if such testimony is derived from the plaintiff-patient’s medical records and it is apparent that the testimony is not of a nature that would have prevented the opposing party from preparing a meaningful response. See Brady v. Ballay, Thornton, Maloney Medical Associates Inc., 704 A.2d 1076, 1082 (Pa. Super. 1997).

Instantly, on September 9, 2005, plaintiff-Wife was rushed by ambulance to Frankford Hospital for severe gastrointestinal bleeding. Plaintiffs’ expert, Gerald Salen M.D., opined that the initial bleeding which necessitated her emergency admission (as differentiated from the later post-upper endoscopy bleed) was caused by a longstanding undiagnosed vitamin K deficiency which resulted in malabsorption, purportedly a side effect of plaintiff-Wife’s prior gastric bypass and/or volvulus surgeries. Dr. Salen further opined that defendant Dr. Casrasquillo was causally negligent in failing to diagnose and treat this vitamin K deficiency. On cross-examination, however, Dr. Salen admitted that the blood studies performed at Frankford Flospital confirmed that plaintiff-Wife did not have a vitamin K deficiency at the time of her admission on September 9,2005, and that something occurred — probably the code and the subsequent blood transfusions — overnight which caused plaintiff-Wife’s vitamin K levels to slightly decrease. Dr. Salen also acknowledged that this event transpired approximately one month after plaintiff-Wife was last seen by defendant Dr. Carrasquillo.

Conversely, it was defendant Dr. Carrasquillo’s belief that plaintiff-Wife’s long-standing off-and-on rectal bleeding resulted from an injury to the bypassed portion of her stomach which he was incapable of visualizing via either the upper endoscopy, colonoscopy, sigmoidoscopy. In addition, his expert Dr. Thornton, a gastroenterologist, disagreed with Dr, Salen and opined that plaintiff-Wife’s vitamin K levels were normal each time these studies were performed except for the September 10th study, done after she coded and received blood transfusions.

During the presentation of plaintiff’s expert’s (Dr. Salen) testimony, counsel for plaintiffs made an oral motion to preclude Dr. Thornton from discussing the “mysterious event” (a term coined by plaintiffs) referenced during Dr. Salen’s cross-examination because there was no mention of any “mysterious event” in either of Dr. Thornton’s expert reports. This trial judge opined that the motion was premature and deferred ruling on the question until such time defendants would attempt to elicit the testimony from their expert.

During the presentation of their expert, defendants were permitted to question Dr. Thornton regarding the events of plaintiff-Wife’s care on September 9-10, despite plaintiffs’ objection, since the testimony being offered was similar to the cross-examination testimony elicited from Dr. Salen. Specifically, Dr. Thornton explained that he reviewed Frankford Hospital’s emergency room record of September 9, 2005, regarding plaintiff-Wife’s admission and subsequent care. These records revealed that she had a blood study test done at 6:05 p.m. which was found to have a normal INR measurement of l.O. His review of the record also revealed that between the hours of 1:45 a.m. and 3 a.m., on September 10, 2005, plaintiff-Wife underwent an upper endoscopy and sometime later, suffered a massive bleed. Dr. Thornton explained that in an effort to stabilize her condition, she was transfused with 12 units of packed red blood cells, two units of platelets, and six units of plasma. After these transfusions, plaintiff-Wife’s vitamin K blood level was tested at 7 a.m. and was found, for the first time during her hospitalization, to have an abnormal INR level of 1.5. Based upon these events, Dr. Thornton opined that the slightly elevated INR measurement was due to the blood product transfusions.

In this trial judge’s opinion, Dr. Thornton’s painstaking review of the medical records was crafted (a) to rebut Dr. Salen’s causation theory that at the time of her September 9th hospital admission plaintiff-Wife had an undiagnosed vitamin K deficiency, and (b) to highlight for the jury the fact that the medical personnel at Frank-ford Hospital did not find that plaintiff-Wife’s blood studies results revealed abnormal INR measurements. Clearly, Dr. Thornton’s careful dissection of the medical events is fair grounds for opinion testimony. This objected to testimony or the “mysterious event” referenced was basically a recitation of the events that transpired prior to and during plaintiff-Wife’s September 2005 hospitalization at Frankford Hospital. Since plaintiffs were in possession of her medical records long before this matter went to trial, it is evident that plaintiffs had sufficient opportunity to anticipate this line of questioning and prepare a meaningful response. In light of the holding in Brady, supra, plaintiffs knew or should have known everything that occurred during her September 2005 hospitalization and could not plausibly have been taken off guard by the evidence and/or explanation. Under the circumstances no error was committed.

Plaintiffs further contend that Dr. Thornton did not reference in either of his reports that a “mysterious event” occurred in the early hours of September 10,2005, which caused plaintiff-Wife to have an increased INR measurement. In a pertinent part of Dr. Thornton’s supplemental expert opinion dated October 26, 2009, the following appears:

“Mrs. Klaus indeed did have significant gastrointestinal bleeding from the bypassed stomach but there is absolutely no evidence that this was related to vitamin K deficiency as the plaintiff’s expert states. In fact, the measurement of vitamin K function, the Prothrombin time or the INR was normal from March 24th [sic], 2005 through February 2006 measured eight different times. She subsequently developed venous thrombosis (clots) of the upper extremity venous system. She was placed on Coumadin to anti-coagulate her but she subsequently had to see a hematologist, Marc Radbill M.D., because of difficulty in obtaining a therapeutic INR. In other words, her coagulation system was actually hypercoagulable and the use of vitamin K could have conceivably made this even worse. There was absolutely never any evidence that she was deficient in vitamin K, and this had no effect on her gastrointestinal bleeding.” October 2,2009 report of James J Thornton MD. at 2. (emphasis added)

Although the above-cited passage does not specifically mention the term “mysterious event” or that one occurred which could account for plaintiff-Wife’s prehospitalization bleed or her past-upper endoscopy bleed, the four comers of the expert report clearly place plaintiffs on notice that Dr. Thornton was challenging their expert’s causation theory that plaintiff-Wife suffered from a vitamin K deficiency. The report unequivocally indicates that she had normal INR measurements through February 2006, four months after her September 2005 hospitalization and six months after defendant Dr. Carrasquillo treated her. The obj ectionable expert testimony, in this trial judge’s opinion, provided the factual predicate for Dr. Thornton’s opinions, a recitation of the events that transpired during those critical hours, and an explanation of the medical objective findings. No error was committed in permitting this testimony.

Notwithstanding and assuming arguendo that error was committed in allowing this portion of Dr. Thornton’s opinion testimony, this trial judge opines that such error was harmless and not prejudicial. As discussed, substantially similar testimony had been admitted without objection during the cross-examination of plaintiffs’ own expert, Dr. Salen. Further, the argument is considered moot since the jury did not reach the issue of causation having ceased its deliberations after finding that defendant Dr. Carrasquillo did not breach the applicable standard of care. In this trial judge’s opinion, this appellate issue is without merit.

Jury Instruction

In their second appellate issue, plaintiffs argue that it was prejudicial error to charge the jury that defendant Dr. Carrasquillo’s decision not to order total parental nutrition (TPN) was not negligence. This trial judge disagrees.

It is well-established that a trial court must charge the jury on the correct legal principles applicable to the facts presented at trial. Gaudio v. Ford Motor Company, 976 A.2d 524, 550 (Pa. Super. 2009), allocatur denied, 989 A.2d 917 (Pa. 2010). In doing so, the trial court has wide latitude in choosing the precise language of the charge, but in all circumstances, the court must fully and adequately convey the applicable law to the jury. Id. If the trial court, however, commits a clear abuse of discretion and/or an error of law that affected the outcome of the case, a new trial is warranted. That is:

“Error in [the trial judge’s charge or instructions to the jury] is sufficient ground for a new trial if the charge, as a whole, is inadequate, not clear, or has a tendency to mislead or confuse the jury rather than clarify a material issue. A charge will be found adequate, unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said, or unless there is an omission in the charge which amounts to a fundamental error. In reviewing [a charge, the court] must look to the charge in its entirety.” Underwood v. Wind, 954 A.2d 1199, 1204 (Pa. Super. 2008).

Instantly, the purpose of TPN is to administer intravenous nutrition to patients whose gastrointestinal tracts are nonfunctional. Generally, TPN is more serious than ordinary forms of intravenous nutrition because TPN must be provided with a port-catheter combination and can involve serious risks of complications, including blood clots and liver disease. TPN was administered to plaintiff-Wife only during her hospitalization of September 2005.

At trial, plaintiffs tried to adduce testimony from Dr. Salen to suggest that defendant Dr. Carrasquillo deviated from the applicable standard of care in not providing TPN supplemental nutrition to plaintiff-Wife. Essentially, plaintiffs attempted to argue that the utilization of TPN would have provided plaintiff-Wife with nutrition needed to combat her malabsorption and/or provide an opportunity for her digestive system to heal. Defendants objected to this line of questioning since it exceeded the fair scope or four comers of Dr. Salen’s report. This trial judge agreed and sustained the objections. Notwithstanding, plaintiffs were permitted to introduce evidence that plaintiff-Wife should have been given some less drastic form(s) of supplemental nutrition.

Following the close of plaintiffs’ case-in-chief, defendants moved for compulsory non-suit on numerous grounds, including inter alia that the jury could not find defendant Dr. Carrasquillo negligent for not ordering TPN because said allegation was not supported by the expert report or testimony. This trial judge agreed and granted that portion of the motion. Accordingly, counsel for defendants drafted a jury charge which was incorporated in the jury instructions given. This jury instruction essentially provided that defendant Dr. Carrasquillo’s decision not to order TPN could not be a basis for a finding that he breached the standard of care. Over plaintiffs’ objection, the charge, as prepared, was read to the jury.

On appeal, plaintiffs argue that this trial judge committed prejudicial error in so charging because adequate evidence was presented to suggest that defendant Dr. Carrasquillo breached the standard of care by not ordering TPN. In support for this contention, plaintiffs primarily cite to their expert’s opinion wherein he stated that plaintiff-Wife should have been provided with non-TPN based supplemental nutrition. See Memorandum in support of plaintiffs’ motion for post-trial relief at 6-7. Plaintiffs also cite to testimony offered by defense expert, Dr. Thornton, wherein he opined that it is easy in retrospect to theorize that defendant Dr. Carrasquillo could have administered TPN to plaintiff-Wife prior to her September 9th hospitalization. Id. at 1-8. It is noted, however, Dr. Thornton never testified that defendant Dr. Carrasquillo’s decision not to provide TPN was negligence. Considering the basis for these arguments, this trial judge opines that plaintiffs’ reliance is misplaced and their argument is without merit.

It is axiomatic that to establish a prima facie claim for medical negligence, the plaintiff-patient must introduce expert testimony that the defendant-physician owed the plaintiff a duty of care, that the defendant breached said duty, that the breach was the proximate cause of the harm ' suffered, and that plaintiff suffered damages as a result of the physician’s harm. Toogood v. Owen J. Rogal D.D.S. P.C., 573 Pa. 245, 254-55, 824 A.2d 1140, 1145 (2003). In careful review of the evidence reveals that plaintiffs did not meet their required burden of proof. There was no credible expert testimony provided that established that defendant Dr. Carrasquillo deviated from the applicable standard of care and/or increased plaintiff-Wife’s risk of harm by failing to provide her with TPN supplement.

In addition, it appears that plaintiffs’ only challenge is to the jury instruction itself and not to the granting of the motion for compulsory non-suit or to the preclusion of the portion of Dr. Salen’s expert testimony regarding the administration of TPN. Relying on the accuracy of this interpretation, this trial judge further opines that plaintiffs have waived this appellate issue for failure to have preserved an objection to the non-suit ruling.

CONCLUSION

Based on the foregoing analysis, it is the opinion of this trial judge that plaintiffs’ appellant issues are without merit and that no mistake of facts, errors of law, or abuse of discretion occurred at trial or in denying plaintiffs’ post-trial motion request which would warrant granting a new trial. Accordingly, this trial judge respectfully recommends that the appeal be dismissed; and that this trial judge’s order of May 24,2010, and the jury verdict be affirmed.

      . Philadelphia Civil Rule *1301, et seq., essentially provides that cases valued at less than $50,000 must be commenced in the compulsory arbitration program and are appealable to the major trial program for a jury trial de novo, only after an arbitration panel has rendered its findings.

      . Plaintiffs settled with all other defendants prior to the commencement of trial, Defendant P.H.G.I. Associates remained in this case on a vicarious liability theory claim.

      . N.T. 3/2/2010 p.m. at 74-75; N.T. 3/3/2010 p.m. at 77, 81-82; N.T. 3/5/2010 p.m. at 6, 36.

      . N.T. 3/3/2010 p.m. at 82-84, 91, 93; N.T. 3/5/2010 p.m. at 42; N.T. 3/8/2010 a.m. at 65-66.

      . N.T. 3/2/2010 p.m. at 76-77; N.T. 3/3/2010 p.m. at 94, 96; N.T. 3/5/2010 p.m. at 43-44; N.T. 3/8/2010 p.m. at 57-58.

      . N.T. 3/2/2010 a.m. at 84; N.T. 3/2/2010 p.m. at 65, 77, 81; N.T. 3/3/2010 p.m. at 95; N.T. 3/5/2010 p.m. at 44-45; N.T. 3/8/2010 a.m. at 67; 3/8/2010 p.m. at 58.

      . N.T. 3/3/2010 p.m. at 98; N.T. 3/8/2010 a.m. at 67.

      . N.T. 3/3/2010 p.m. at 98-101; N.T. 3/5/2010 p.m. at 45; N.T 3/8/2010 a.m. at 68-69.

      . N.T. 3/3/2010 p.m. at 101, 103-104; N.T. 3/4/2010 a.m. at 80; N.T 3/8/2010 a.m. at 70-71.

      . N.T. 3/3/2010 p.m. at 104-105; N.T. 3/4/2010 a.m. at 80; N.T. 3/5/2010 p.m. at 47-48; N.T. 3/8/2010 a.m. at 70-71.

      . N.T. 3/3/2010 p.m. at 16.

      . N.T. 3/2/2010 a.m. at 126, 163; N.T. 3/3/2010 a.m. at 68-71; N.T. 3/4/2010 a.m. at 141-42.

      . N.T. 3/2/2010 a.m. at 163; N.T. 3/3/2010 a.m. at 71; N.T. 3/3/2010 p.m. at 47-48; N.T. 3/4/2010 a.m. at 143; N.T. 3/9/2010 a.m. at 73.

      . N.T. 3/2/2010 a.m. at 126, 139, 150.

      . N.T. 3/2/2010 a.m. at 163; N.T. 3/3/2010 a.m. at 71; N.T. 3/3/2010 p.m. at 35, 45; N.T. 3/4/2010 a.m. at 142-43.

      . N.T. 3/2/2010 a.m. at 133; N.T. 3/3/2010 p.m. at 35-36; N.T. 3/4/2010 a.m. at 144.

      . N.T. 3/2/2010 a.m. at 163-64; N.T. 3/3/2010 a.m. at 71-72; N.T. 3/3/2010 p.m. at 35,46; N.T. 3/4/2010 a.m. at 145.

      . N.T. 3/8/2010 p.m. at 98.

      . N.T. 3/2/2010 a.m. at 84-86; N.T. 3/3/2010 p.m. at 108; N.T. 3/4/2010 a.m. at 17-18,81;N.T. 3/5/2010p.m. at55-56;N.T. 3/8/2010 a.m. at 71-72; N.T. 3/8/2010 p.m. at 59; N.T. 3/9/2010 a.m. at 4-5.

      . N.T. 3/4/2010 a.m. at 81; N.T. 3/5/2010 p.m. at 57-58; N.T. 3/9/2010 a.m. at 18-22.

      . N.T. 3/4/2010 a.m. at 81, 86-88; N.T. 3/5/2010 p.m. at 57-58; N.T. 3/9/2010 a.m. at 22-25.

      . N.T. 3/2/2010 a.m. at 90; N.T. 3/4/2010 a.m. at 19-20,22,88-89; N.T. 3/5/2010 p.m. at 58; N.T. 3/8/2010 a.m. at 73-75; N.T. 3/8/2010 p.m. at 59-61; N.T. 3/9/2010 a.m. at 26-27.

      . N.T. 3/2/2010 a.m. at 91; N.T. 3/4/2010 a.m. at 24-26, 89; N.T. 3/5/2010 p.m. at 58-59; N.T. 3/8/2010 a.m. at 77-79; N.T. 3/8/2010 p.m. at 60; N.T. 3/9/2010 a.m. at 27-31.

      . N.T. 3/2/2010 a.m. at 91-94; N.T. 3/4/2010 a.m. at 35-39,89-90; N.T. 3/5/2010 a.m. at 4-5; N.T. 3/5/2010 p.m. at 59-60; N/T. 3/8/2010 a.m. at 80-81, 83-84, 87-88; N.T. 3/8/2010 p.m. at 61; N.T. 3/9/2010 a.m. at 31-32.

      . N.T. 3/4/2010 a.m. at 90; N.T. 3/5/2010 p.m. at 61; N.T. 3/9/2010 a.m. at 34-41, 75-76.

      . N.T. 3/4/2010 a.m. at 97-98; N.T. 3/5/2010 a.m. at 27; N.T. 3/9/2010 a.m. at 48-50.

      . N.T. 3/3/2010 a.m. at 47; N.T. 3/4/2010 a.m. at 98-99; N.T. 3/5/2010 p.m. at 63; N.T. 3/9/2010 a.m. at 54-55, 76.

      . N.T. 3/2/2010 a.m. at 164-65; N.T. 3/3/2010 a.m. at 72-73; N.T. 3/3/2010 p.m. at 48; N.T. 3/4/2010 a.m. at 145-46; N.T. 3/9/2010 a.m. at 72-74.

      . N.T. 3/2/2010 a.m. at 98, 136-37, 152-53; N.T. 3/4/2010 a.m. at 101-102; N.T. 3/5/2010 a.m. at 9-11; N.T. 3/8/2010 a.m. at 89-90, 93-94; N.T. 3/9/2010 a.m. at 48.

      . N.T. 3/2/2010 a.m. at 97; N.T. 3/4/2010 a.m. at 102; N.T. 3/5/2010 a.m. at 13; N.T. 3/8/2010 a.m. at 91, 93; N.T. 3/9/2010 a.m. at 65-66.

      . N.T. 3/2/2010 a.m. at 98-99; N.T. 3/4/2010 a.m. at 104-105; N.T. 3/5/2010 a.m. at 20-21,39; N.T 3/5/2010 p.m. at 67-68,70,84-85; N.T. 3/8/2010 a.m. at 98-99; N.T. 3/9/2010 a.m. at 74-75, 99.

      . N.T. 3/2/2010 a.m. 98-104; N.T. 3/4/2010 a.m. at 105-10,114-20,127-29; N.T. 3/5/2010 a.m. at 29-33,38-39,45; N.T. 3/5/2010 p.m. at 68-70; N.T. 3/8/2010 a.m. at 93, 101-105; N.T. 3/9/2010 a.m. at 100-105.

      . N.T. 3/2/2010 a.m. at 108; N.T. 3/3/2010 a.m. at 51-54,101-105, 112-13; N.T. 3/4/2010 a.m. at 115-29; N.T. 3/4/2010 p.m. at 66,80-88, 100-101; N.T. 3/5/2010 p.m. at 72-74; N.T. 3/9/2010 a.m. at 105-109.

      . N.T. 3/3/2010 a.m. at39-40;N.T. 3/4/2010 a.m. at 129-31;N.T. 3/5/2010 a.m. at 27-28; N.T. 3/5/2010 p.m. at 74-75, 84-85; N.T. 3/9/2010 a.m. at 111-14.

      . N.T. 3/2/2010 a.m. at 106; N.T. 3/3/2010 a.m. at 33-38; N.T. 3/4/2010 a.m. at 132-33; N.T. 3/5/2010 a.m. at 70,100; N.T. 3/5/2010 p.m. at 78-79, 81-82; N.T. 3/9/2010 p.m. at 19-23.

      . N.T. 3/3/2010 a.m. at 73-76; N.T. 3/3/2010 p.m. at 48-49; N.T. 3/4/2010 a.m. at 146-47.; N.T. 3/9/2010 p.m. at 97-98.

      . N.T. 3/2/2010 a.m. at 108; N.T. 3/3/2010 a.m. at 28-31,112-13, 115; N.T. 3/4/2010 a.m. at 133-36; N.T. 3/5/2010 a.m. at 69-70,80-90; N.T. 3/5/2010 p.m. at 86-93; N.T. 3/8/2010 a.m. at 115-23; N.T. 3/8/2010 p.m. at 68-70; N.T. 3/9/2010 p.m. at 28-31.

      . N.T. 3/2/2010 a.m. at 86, 89, 146, 166-67; N.T. 3/3/2010 a.m. at 32-33,78,82,115-16; N.T. 3/4/2010 a.m. at 137; N.T. 3/5/2010 a.m. at 118-19; N.T. 3/5/2010 p.m. at 98-99; N.T. 3/9/2010 p.m. at 49-51.

      . N.T. 3/2/2010 a.m. at 89; N.T. 3/3/2010 a.m. at 31-32, 114-15; N.T. 3/4/2010 a.m. at 136; N.T. 3/5/2010 p.m. at 93, 97-98; N.T. 3/9/2010 p.m. at 43-44.

      . N.T. 3/5/2010 a.m. at 126-27; N.T. 3/8/2010 p.m. at 14-17.

      . N.T. 3/8/2010 a.m. at 9; N.T. 3/8/2010 p.m. at 73-74.

      . N.T. 3/2/2010 a.m. at 144; N.T. 3/3/2010 a.m. at 77-78.

      . N.T. 3/2/2010 p.m. at 39; N.T. 3/3/2010 a.m. at 59, 79; N.T. 3/5/2010 a.m. at 124-26,128; N.T. 3/5/2010p.m. at 115;N.T. 3/8/2010 p.m. at 17, 18-22.

      . N.T. 3/2/2010 a.m. at 144-50,167-68; N.T. 3/3/2010 a.m. at 79; N.T. 3/3/2010 p.m. at 50; N.T. 3/4/2010 p.m. at 5-6.

      . N.T. 3/2/2010 p.m. at 40; N.T. 3/3/2010 a.m. at 59; N.T. 3/4/2010 p.m. at 7-9.

      . N.T. 3/2/2010 p.m. at 40; N.T. 3/3/2010 a.m. at 82; N.T. 3/3/2010 p.m. at 6; N.T. 3/4/2010 p.m. at 10-16,42; N.T. 3/5/2010 a.m. at 127, 128; N.T. 3/8/2010 p.m. at 23.

      . N.T. 3/2/2010 p.m. at 40,146-47; N.T. 3/3/2010 p.m. at 38, 52; N.T. 3/4/2010 a.m. at 6, 17; N.T. 3/4/2010 p.m. at 40-41.

      . N.T. 3/3/2010 a.m. at 87-88; N.T. 3/3/2010 p.m. at 6; N.T. 3/4/2010 p.m. at 21-22, 124.

      . N.T. 3/3/2010 a.m. at 87-88; N.T. 3/4/2010 p.m. at 22-23.

      . N.T. 3/5/2010 a.m. at 92-96; N.T. 3/8/2010 p.m. at 37-38.

      . N.T. 3/2/2010 p.m. at 40-41.

      . N.T. 3/3/2010 a.m. at 79-82.

      . N.T. 3/4/2010 a.m. at 4-12.

      . Id. at 5-6.

      . Id. at 6-11.

      . Id. at 6,17.

      . Id. at 17-20.

      . Id.

      . N.T. 3/9/2010 p.m. at 44-45.

      . N.T. 3/4/2010 p.m. at 122-23,128; 3/5/2010 a.m. at 77-78; N.T. 3/5/2010 p.m. at 124-25; N.T. 3/9/2010 p.m. at 45-46.

      . N.T. 3/2/2010 p.m. at 55; N.T. 3/3/2010 p.m. at 30-31.

      . N.T. 3/2/2010 p.m. at 55-56,58-59; N.T. 3/3/2010 p.m. at 27-28; N.T. 3/9/2010 p.m. at 64, 67-68, 125-26.

      . N.T. 3/8/2010 p.m. at 112-18, 121, 123.

      . N.T. 3/10/2010 p.m. at 33-34.

      . See N.T. 3/4/2010 p.m. at 121-23.