author: BERNSTEIN, J,

text:
    Crepeau v. Rite Aid Inc.

      Mark Cuker, for plaintiff.

      Charles Reitmeyer, Kevin Mahoney, Joseph Cancila, Francis Morrisey, Paula Ketchum and Jonathan Fischbach, for defendant.
    May 3, 2005
   BERNSTEIN, J,

Presently before this court is plaintiff’s motion for class certification arising from plaintiff’s purchase of alleged “counterfeit” Lipitor, a cholesterol reducing drug, from a Rite Aid pharmacy. Plaintiff filed a class action complaint on September 9, 2003. Plaintiff alleges two causes of action, breach of express warranty and unjust enrichment.

FINDINGS OF FACT

(1) Lipitor is a cholesterol reducing drug.

(2) Beginning in March of 2003, Rite Aid began purchasing their supply of Lipitor, from H.D. Smith, an authorized distributor of the drug.

(3) The term “authorized distributor” entitles the distributor to purchase drugs directly from the manufacturer. Lipitor is manufactured by Pfizer, Inc.

(4) On May 23, 2003, H.D. Smith sent a letter to Rite Aid informing them that a portion of the Lipitor that Rite Aid had purchased may be counterfeit. H.D. Smith suggested that a recall of all Lipitor which Rite Aid had purchased from April 22,2003 to May 23,2003, ought to be instituted. At that time, a substantial quantity of Lipitor received from H.D. Smith had already been sold to the public through Rite Aid pharmacies.

(5) During this time period, 330,000 customers had purchased Lipitor at Rite Aid pharmacies. Each one of the 330,000 customers was sent a recall notice instructing them to return all remaining Lipitor pills to their local Rite Aid pharmacy so that their pills could be exchanged for new Lipitor at no extra charge.

(6) Not more than 20 percent of the 10 mg tablet Lipitor, and not more than 6 percent of the 20 mg tablets, sold during the recall period were counterfeit.

(7) It is impossible to determine which of the 330,000 individuals who purchased the Lipitor from Rite Aid received any counterfeit pills.

(8) On April 29, 2003, named plaintiff, Christopher Crepeau purchased 20-milligram Lipitor from a Rite Aid pharmacy in Michigan.

(9) Mr. Crepeau had finished his entire prescription before he received the recall notice and was therefore unable to exchange any pills.

(10) There is no proof that any medication Mr. Crepeau took was counterfeit Lipitor.

(11) It is impossible to prove whether any individual who purchased Lipitor from Rite Aid Pharmacies in 2003 received counterfeit Lipitor.

(12) No one who purchased Lipitor from Rite Aid during 2003 suffered any known adverse effects.

(13) Plaintiff has defined the proposed class as “all residents of the United States except Louisiana who purchased counterfeit Lipitor tablets from Rite Aid in the year 2003, and who did not manifest physical injuries as a result of ingesting these tablets.”

CONCLUSIONS OF LAW

(1) To prevail on a claim for breach of warranty under the Pennsylvania Uniform Commercial Code, a plaintiff must establish, by a preponderance of the evidence that a breach of warranty occurred and that the breach was the proximate cause of the specific damages sustained. Price v. Chevrolet Motor Division of GMC, 765 A.2d 800, 810 (Pa. Super. 2000).

(2) In Pennsylvania, “To recover based on unjust enrichment, there must be... (1) an enrichment and (2) an injustice if the unenriched party does not recover for that enrichment. See Chesney v. Stevens, 435 Pa. Super. 71, 77 n.4, 644 A.2d 1240, 1243 n.4 (1994). ‘The most significant requirement for recovery is that the enrichment of the defendant is unjust.’ Id.” Cambria-Stoltz Enterprises v. TNT Investments, 747 A.2d 947, 953 (Pa. Super. 2000).

(3) Plaintiff bears the burden of proving those contentions which entitle him to relief.

(4) There can be no compensation to individuals who have not proven any loss.

DISCUSSION

The sole issue before this court is whether the prerequisites for certification as stated in Pa.R.C.P. 1702 are satisfied. The purpose behind a class action lawsuit is “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;

“(2) there are questions of law or fact common to the class;

“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;

“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709;

“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]:

“(a) Where monetary recovery alone is sought, the court shall consider

“(1) whether common questions of law or fact predominate over any question affecting only individual members;

“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;

“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of

“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;

“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications, or substantially impair or impede their ability to protect their interests;

“(4) the extent and nature of any litigation, already commenced by or against members of the class involving any of the same issues;

“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;

“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;

“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debts v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element.” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “the weight and credibility of the evidence are not factors at this stage.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, the term “ ‘prima facie right to custody’ means only that the parly has a colorable claim to custody of the child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williamsburg Community School District v. Commonwealth, Pennsylvania Human Relations Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made;... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

“Class certification is a mixed question of fact and law.” Debbs v. Chrysler Corp., 810 A.2d at 154 (Pa. Super. 2002). The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. 1977 Explanatory comment to Pa.R.C.P. 1707. Where evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa. Super. at 128, 451 A.2d at 454-55. Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Professional Flooring Co. v. Bushar Corp., 61 D.&C.4th 147, 153 (Montg. Cty. 2003), citing Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co. Inc., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super. at 128, 451 A.2d at 454, citing and quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case . . . any error should be committed in favor of allowing the class action”).

Likewise, the Commonwealth Court has held that “in doubtful cases any error should be committed in favor of allowing class certification.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophy is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super. at 129, 451 A.2d at 454.

Within this context, the court will examine the requisite factors for class certification.

I. Numerosity

To be eligible for certification, appellant must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should such plaintiffs sue individually.” Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa. Super. 219, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (204 plaintiffs sufficiently numerous). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super. at 132, 451 A.2d at 456.

In order to demonstrate numerosity, a plaintiff must show more than just a large number of potential plaintiffs. To satisfy this criterion, the class must be both numerous and identifiable. For the court to determine if there are enough class members to warrant a class action, the class definition must be clear enough for the court to reasonably ascertain who the potential class members are. Without a clear class definition it is impossible for the court to determine numerosity because the identity of the individuals to be included in the class cannot be determined. The Pennsylvania Superior Court has held that “where the class definition is so poorly established that the court cannot even discern who the potential class members are, the numerosity criterion has not been met.”

Plaintiff has defined the class as “all residents of the United States except Louisiana who purchased counterfeit Lipitor tablets from Rite Aid in the year 2003, and who did not manifest physical injuries as a result of ingesting these tablets.” Plaintiff can, through Rite Aid’s records, determine who purchased Lipitor from Rite Aid in 2003. These are the 330,000 individual purchasers who received recall letters from Rite Aid. However, plaintiff cannot now, nor can he ever, discern or identify which of Rite Aid’s customers actually received counterfeit Lipitor. Plaintiff cannot exclude any of these 330,000 Rite Aid customers from the class. Everyone who purchased Lipitor received a recall notice, but at least 80 percent of the Lipitor sold to these customers was authentic. To define the class in order to adequately demonstrate numerosity, plaintiff would have to exclude from all 330,000 individuals who received a recall notice, everyone who received genuine Lipitor. Only those who received counterfeit Lipitor can possibly present any claim. This reduction is impossible. Plaintiff’s class as defined is flawed because it necessarily includes all those who purchased genuine Lipitor. Plaintiff has created a class which is detrimentally over-inclusive. As a result neither plaintiff nor the court can ever determine class identity or size. For these reasons it is impossible for the plaintiff to satisfy the numerosity requirement, absent certifying a class of all the 330,000 individuals who received a recall notice, most of whom received exactly what they paid for.

For the reasons stated above, the criteria of Rule 1702(1) have not been met by the proofs presented at the class certification hearing or the record presented therein.

II. Commonality

The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra at 133, 451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra at 133 n.5, 451 A.2d at 457 n.5.

“While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D’Amelio v. Blue Cross of Lehigh Valley, 341 Pa. Super. 441, 452, 500 A.2d 1137, 1142 (1985). In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). (emphasis in original) Where there exists intervening and possibly superseding causes of damage however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231, 530 A.2d 499, 504 (1987).

At the class certification it was stipulated that at a maximum, 20 percent of the 10 mg Lipitor and 5.7 percent of the 20 mg Lipitor sold to the public were counterfeit. It was also determined that no one will be able to prove who actually received any of the counterfeit pills. Rite Aid sent recall letters to everyone who purchased Lipitor during a specified time frame. Therefore, individuals who received a recall letter may have received all counterfeit pills, no counterfeit pills or only a percentage of counterfeit pills. Indeed, most purchasers received the genuine article. There are no common issues between the maximum 20 percent of class members who received counterfeit Lipitor and the remaining 80 percent of class members who received a genuine product.

Plaintiff was given the opportunity to present a proposed jury verdict form to address the issue of commonality. For the claim of breach of express warranty, defendant provided the following verdict form:

(1) Did Rite Aid breach its express warranty (that each pill sold to the consumer as “Lipitor” was guaranteed to be genuine Lipitor manufactured by Pfizer Inc.)?

(2) If your answer to no. 1 above is “yes,” was the value of pills sold to Rite Aid less than the retail price Rite Aid charged for genuine Lipitor manufactured by Pfizer Inc.?

(3) If your answer to no. 2 above is “yes,” what is the percentage reduction in the value of the pills attributed to the breach of express warranty?

These proposed interrogatories further demonstrate the failure of the class definition. Instead of requiring a damages amount in response to interrogatory no. 3, plaintiff asks for a percentage reduction in value. However, Pennsylvania law does not permit a partial damages verdict in contract. There is no percentage theory or partial recovery in our law.

It would be clearly unjust for the defendant to refund all purchases since at least 80 percent of the Lipitor sold by Rite Aid was genuine. Therefore, plaintiff’s theory requires that damages be calculated on a percentage basis. Jury interrogatory no. 3 implies that everyone who purchased any Lipitor, counterfeit or genuine, during the class period will share in any recoveiy. This means that those who received counterfeit Lipitor will receive only a percentage of their “loss” while those who received the genuine product would receive a windfall. In contract, either a plaintiff is fully compensated for an injury or not compensated at all. Under plaintiff’s scheme, individuals who received genuine Lipitor are being compensated for injuries they did not sustain while individuals who received counterfeit Lipitor are not being compensated for all the injuries they did sustain. This is not only unjust but unsupported by Pennsylvania law. This over-inclusive “percentage theoiy of recovery” reflects plaintiff’s insurmountable problem of class definition.

The class is not defined as everyone who received a recall notice from Rite Aid. It purports to include only those who received counterfeit Lipitor. It is necessary at some point to ascertain exactly who of the 330,000 individuals sustained any injury. Because plaintiff cannot exclude from the class those individuals who received exactly what they paid for, the court is left with the unanswered individual questions of fact as to who is entitled to any recovery because they received a counterfeit product, and, of those entitled individuals, what is the extent of their injury.

For the claim of unjust enrichment plaintiff offered the following verdict form:

(1) Do you find that the parties were mistaken as to an assumption of fact which was the basis of their contract?

(2) If your answer to no. 4 is “yes,” did Rite Aid receive and retain profits under the contract?

(3) If so, what is the amount of the profits that Rite Aid received and retained?

Although the plaintiff purports not to define the class as everyone who received a recall notice from Rite Aid, this proposed set of jury interrogatories belies the fiction. Not even 330,000 mini-trials could determine which of the purchasers are entitled to any compensation, plaintiffs are unable to show who of the 330,000 individuals who received recall notices from Rite Aid are entitled to any “improperly retained” profits. Likewise, plaintiff cannot isolate profits from the “counterfeit” Lipitor. Rite Aid cannot lawfully be required to disgorge profits made from selling genuine Lipitor. Yet, the proposed interrogatories require just that.

Even if plaintiffs were awarded all the profits made by Rite Aid from the sale of the Lipitor as the unjust enrichment proposed interrogatories imply, there remains no way to determine how these profits should be distributed. If the profits are distributed evenly among all 330,000 individuals who received recall notices, the recovery will be over-compensating those who received a genuine product and under-compensating those who did not.

For the reasons stated above, the criteria of Rule 1702(2) have not been met by the proofs presented at the class certification hearing or the record presented therein.

III. Typicality

The third step in the certification test requires the plaintiff to show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that pursuit of their interests will advance those of the proposed class members. DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

Plaintiff has admitted that it is impossible to determine if the named plaintiff, Mr. Crepeau, received counterfeit Lipitor. It is impossible to determine if the named plaintiff is even a member of any class plaintiff feels is entitled to relief. Effectively, plaintiff claims that Mr. Crepeau is a class member because everyone who purchased Lipitor, counterfeit or genuine, is a class member and therefore entitled to compensation. However, plaintiff is attempting to use words without meaning. The words “counterfeit Lipitor” have meaning only if it is distinguishable from the words “genuine Lipitor.” Plaintiff cannot now nor will he ever be able to prove that distinction. Factually, purchasers must be treated the same whether they received counterfeit Lipitor or genuine Lipitor.

Plaintiff, Mr. Crepeau is a class member only if the word counterfeit is a word without meaning. Mr. Crepeau is entitled to compensation only if all purchasers, those who received “counterfeit” and all purchasers who received “genuine” Lipitor are entitled to compensation. Even Mr. Crepeau’s individual action must fail because he cannot prove that he did not receive exactly what he paid for, namely, genuine Lipitor. A class representative cannot be typical if he can never prove his individual case. Therefore, for the reasons stated above, the criteria of Rule 1702(3) have not been met by the proofs presented at the class certification hearing of the record presented therein.

IV. Adequacy of Representation

For the class to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702(4). In determining whether the representative parties will fairly and adequately represent the interests of the class, the court shall consider the following:

“(1) Whether the attorney for the representative parties will adequately represent the interests of the class,

“(2) Whether the representative parties have a conflict of interest in the maintenance of the class action, and

“(3) Whether the representative parties have or can acquire financial resources to assure that the interests of the class will not be harmed.” Rule 1709.

“Until the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Janicik, 305 Pa. Super. at 136, 451 A.2d at 458. Here, defendants do not challenge plaintiffs’ counsels’ skill and therefore, the court presumes that counsel is skilled in their profession. While the adequacy of the named plaintiff has been addressed in the typicality section, it should be noted that plaintiff’s counsel herein has valiantly, albeit unsuccessfully, attempted to define a class, and is clearly adequate counsel.

V Fair and Efficient Method of Adjudication

The final criteria under Pa.R.C.P. 1702 is a determination of whether a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

1. Predominance of Common Questions of Law and Fact

The most important requirement in determining whether a class should be certified under 1702(a)(5) and 1708(a)(1) is whether common questions of law and fact predominate over any question affecting only individual members. In addition to the existence of common questions of law and fact, plaintiffs must also establish that the common issues predominate. The analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janicik, supra, 305 Pa. Super. at 141, 451 A.2d at 461.

As discussed above since it is impossible for plaintiff to prove damages on a class-wide basis because of plaintiff’s inability to meaningfully define the class, or ascertain who is entitled to damages. Common questions of fact do not predominate.

2. The Existence of Serious Management Difficulties

Under Pa.R.C.P. 1708(2), a court must also consider the size of the class and the difficulties likely to be encountered in the management of the action as a class action. While a court must consider the potential difficulties in managing the class action, any such difficulties generally are not accorded much weight. Problems of administration alone ordinarily should not justify the denial of an otherwise appropriate class action, for to do so would contradict the policies underlying this device. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972). Rather, the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring. Id. (citing Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974)).

Plaintiff has defined his class as “all residents of the United States except Louisiana who purchased counterfeit Lipitor tablets from Rite Aid in the year 2003 ....” Plaintiff admits that he does not know, and can never know, who purchased the counterfeit Lipitor tablets. Plaintiff’s case as presented implicitly requires a shift in the burden of proof. Plaintiff cannot prove that any individual who purchased Lipitor from Rite Aid in the year 2003 got anything different than what they paid for. To try this case on a class basis would be to shift the burden of proof to defendant to show which of the class members received genuine Lipitor. Only with this shift in the burden of proof can plaintiff maintain that there are common questions of fact. The following discussion took place between the court and plaintiff’s counsel at the certification hearing:

“The Court: What if Rite Aid can prove somebody got Lipitor; do they still have to pay[?]

“Mr. Cuker: If Rite Aid can prove that somebody got Lipitor, they wouldn’t have to pay. I think judge, based on the evidence you heard, Rite Aid can’t do that for anybody.”

Such a burden shift is unprecedented in Pennsylvania and cannot relieve the plaintiff of his burden to prove who of the 330,000 people who purchased Lipitor did not get a genuine certifiable product.

Although this factor usually is not a basis for denial of class certification, plaintiff’s shift in the burden of proof does not allow for a fair method of adjudication. In addition, plaintiff’s aforementioned insurmountable damage distribution problems present this court with severe manageability difficulties. Therefore, plaintiff has not met his burden for showing manageability.

3. Potential for Inconsistent Adjudications

Pennsylvania Rule 1708(a)(3) also requires a court to evaluate whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class. In considering the separate effect of actions, the precedential effect of a decision is to be considered as well as the parties’ circumstances and respective ability to pursue separate actions. Janicik, 305 Pa. Super. at 143, 415 A.2d at 462.

Due to the fact that no one, on a class or individual basis, can prove that they suffered any injury as a result of defendant’s actions, individual inconsistent adjudications are unlikely but need not be addressed since certification is being denied on other grounds.

4. Extent and Nature of Any Preexisting Litigation and the Appropriateness of This Forum

Under Pa.R.C.P. 1708(a)(4), (a)(5), and (a)(6) a court should consider the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues, the appropriateness of the chosen forum and whether the amounts recoverable justify a class action. The court has been advised of no prior litigation pending on this issue. This court finds that this forum is appropriate to litigate the claim.

Rule 1708 also requires the court to consider the amount of damages sought by the individual plaintiffs in determining the fairness and efficiency of a class action. Thus, a court must analyze whether in view of the complexities of the issues or the expenses of litigation, the separate claims of individual class members are insufficient in amount to support separate amounts. Pa.R.C.P. 1708(a)(6). Alternatively, the rules require that the court analyze whether it is likely that the amounts which may be recovered by individual class members will be so small in relation to the expense and effort of the administering the action as not to justify a class action. Pa.R.C.P. 1708(a)(7). This criteria is rarely used to disqualify an otherwise valid class action claim. See Kelly v. County of Allegheny, 519 Pa. 213, 215, 546 A.2d 608, 609 (1988) (Trial court erred in refusing to certify a class on the grounds that the class members’ average claim was too small in comparison to the expenses incurred.). However, in Klusman v. Bucks County Court of Common Pleas, (128 Pa. Commw. 616, 631, 546 A.2d 526, 534 (1989)) the court said: “Where the issue of damages does not lend itself to a mechanical calculation, but requires separate mini-trials of a large number of individual claims, courts have found that the staggering problem of logistics make the damage aspect of the case predominate and renders the class unmanageable as a class action. State of Alabama v. Blue Bird Body Co. Inc., 573 F.2d 309 (5th Cir. 1978).” Certainly herein, the question of whether any individual is entitled to any damages predominates and renders the class unmanageable.

Accordingly, having weighed all Rule 1708 requirements, this court finds that a class action is not a fair and efficient method for adjudicating plaintiff’s claims.

For the above stated reasons plaintiff’s motion for class certification is denied.

ORDER

And now, May 3, 2005, upon consideration of plaintiff’s motion for class certification, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the contemporaneous memorandum opinion, it hereby is ordered and decreed as follows: plaintiff’s motion for class certification is denied.

      . See for example, Foodarama Supermarkets Inc. v. American Insurance Co., 43 D.&C.4th 467, 493 (2000).

      . Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 408, 615 A.2d 428, 430 (1992).

      . Plaintiff has moved to amend the complaint to redefine the class as, “All residents of the United States except Louisiana, who purchased counterfeit Lipitor tablets from Rite Aid in the year 2003 and who did not manifest physical injuries as a result of ingesting these tablets. For purposes of this definition, ‘counterfeit;’ Lipitor means Lipitor which Rite Aid recalled or sought to recall in letters addressed to its customers in May and June of2003.” This motion, which was denied February 1,2005, does not remedy plaintiff’s class definitional failure. The same issues arise again with this definition. Rite Aid sent recall letters to everyone who purchased Lipitor. No one including Rite Aid knows which pills were counterfeit. Therefore, adding to the above a definition of the word “counterfeit” does nothing to assist this court in determining who is a member of the class. Indeed, with or without the amendment, the requested class can only consist of everyone who purchased Lipitor, even if the purchaser received the genuine article.

      . Even though plaintiff has attempted to redefine the class as everyone who received a recall notice from Rite Aid, this does not change the fact that 330,000 individual questions remain, namely “who received counterfeit Lipitor?”

      . This is why plaintiff’s logic requires the novel suggestion that the burden of proof should shift to defendant.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Martin v. Kelleher

      C.P. of Berks County,
    no. 04-18194.

      J. Jackson Eaton III and Andrew H. Ralston Jr., for plaintiffs.

      Charles D. Younger, for defendants.
    May 4, 2005.
   LASH, J.,

The matters before this court are the preliminary objections of defendants, Linda A. Kelleher, in her capacity as city clerk of the City of Reading, Pennsylvania, and City of Reading, Pennsylvania (defendants), to the complaint of plaintiffs, Cherlynn M. Martin and Tina Fuhrman, individually and in their capacity as members of the petitioners’ committee for referendum on City of Reading Ordinance no. 43-2004 (plaintiffs), seeking a writ of mandamus, and plaintiffs’ motion for peremptory judgment. Argument was held on April 18, 2005. For reasons set forth herein, this court overrules the preliminary objections and denies the motion for peremptory judgment.

Plaintiffs’ mandamus action seeks an order from this court commanding defendant, Linda A. Kelleher, in her capacity as the city clerk of defendant, City of Reading, Pennsylvania (defendant City Clerk), to accept a referendum affidavit and petition prepared by plaintiffs, which defendant City Clerk had previously refused. Defendants object, alleging plaintiffs failed to exhaust their administrative remedies prior to filing this action and that this action was not filed on a timely basis.

Plaintiffs established a committee and commenced referendum proceedings to oppose City of Reading Ordinance no. 2004-43, which was adopted by Reading City Council on October 11,2004, and executed by the mayor of Reading on October 13, 2004. According to plaintiffs’ complaint, ordinance no. 2004-43 requires pre-settlement home inspections of all residential properties sold or transferred in the City of Reading and sets the fees for those inspections.

Plaintiffs’ committee attempted to initiate the referendum proceedings pursuant to the Home Rule Charter for the City of Reading, article XI, sections 1102 through 1109. Section 1102 of the city charter provides, in pertinent part:

“(b) Referendum. The qualified voters of the city shall have the power to require reconsideration by the council of any adopted ordinance. If the council fails to repeal an ordinance so reconsidered, the referendum process may be commenced giving the qualified voters of the city the opportunity to approve or reject said ordinance at a city election.”

Section 1103(a) of the city charter provides the procedure for commencing referendum proceedings, stating, in pertinent part:

“(a) Any five qualified voters of the city may commence . . . referendum proceedings by filing with the city clerk an affidavit stating they will constitute the petitioners’ committee and be responsible for circulating the petition and filing it in proper form, stating their names and addresses and specifying the address to which all notices to the committee are to be sent, and setting out in full the proposed initiative ordinance or citing the ordinance sought to be reconsidered. In case of referendum, such an affidavit must be filed within 10 days of the adoption of the ordinance. Within five days after the affidavit of the petitioners’ committee is filed and validated, the city clerk shall issue the appropriate petition blanks to the petitioners.”

On October 20, 2004, the plaintiffs’ committee filed with defendant City Clerk an affidavit, which they argue complied with the terms of section 1103(a).

On October 26,2004, plaintiffs’ committee received a certified letter dated October 25, 2004, from defendant City Clerk stating, among other things, that the submitted affidavit was invalid for being in noncompliance with section 1103(a). The letter set forth that the “wording and content of the affidavit. . . did not identify the undersigned as ‘qualified voters.’ ” The correspondence cited section 1103(a) as authority for requiring the affidavit to be signed by five qualified voters of the City of Reading. As a result, the defendant City Clerk determined that the affidavit would not be validated.

Had the affidavit been validated, section 1103 requires the city clerk to issue “appropriate petition blanks to the petitioners.” However, pursuant to her determination of October 25, 2004, the city clerk declined to issue the petition blanks. Consequently, plaintiffs’ committee’s next action was to create a “referendum petition form.” According to plaintiffs’ complaint, the committee circulated 148 petition forms and obtained 4,871 signatures.

On November 19, 2004, plaintiffs’ committee presented the signed referendum petition to defendant City Clerk for filing. Defendant City Clerk refused to accept the referendum petition. Plaintiffs’ committee then attempted to present the referendum petition directly to Reading City Council at a public meeting held on November 22, 2004. By a vote of four to three, Reading City Council refused to accept the referendum petition.

On December 20, 2004, plaintiffs filed the within mandamus action. Defendants responded on January 18, 2005, by filing preliminary objections, alleging two bases for dismissing the complaint. First, defendants claim that plaintiffs failed to exercise or exhaust their statutory remedies. Specifically, defendants argue that plaintiffs had no right to petition this court prior to exhausting administrative remedies available to them under sections 1101-1109 and sections 1111-1112 of the city charter, or by first referring the matter to the Charter Board as permitted by City Charter Amendment I, § 2. Secondly, defendants allege that this court lacks jurisdiction because plaintiffs failed to file the complaint within 30 days from the October 25, 2004 determination, and therefore the within action constitutes an untimely appeal.

Plaintiffs counter by arguing that the administrative remedies proposed by defendants are insufficient to provide the requested relief. Further, they argue that the filing of the complaint was timely, as the complaint seeks relief in mandamus and is not an “appeal from an adverse adjudication by a local agency.” As such, the within action is governed by a six-month Statute of Limitations, as set forth in 42 Pa.C.S. §5522(b)(l).

The doctrine of exhaustion of administrative remedies applies to home charters, as well as legislation. As stated in the case of Gans v. City of Philadelphia, 43 Pa. Commw. 635, 640-41, 403 A.2d 168, 170 (1979):

“[A] [c]harter has the status of an act of the General Assembly. Addision Case, 385 Pa. 48, 57, 122 A.2d 272, 275-76 (1956), appeal dismissed, 352 U.S. 956, [77 S.Ct. 353, 1 L.Ed.2d 316] (1957). The procedures established by the charter and the ordinances designed to supplement and implement the charter are subject to the rule of exhaustion of remedies established by section 3 of the Statutory Construction Act of 1972, 1 Pa.C.S. §1504. City of Philadelphia v. Kenny, 28 Pa. Commw. 531, 546, 369 A.2d 1343, 1351-52 (1977), cert. denied, 434 U.S. 923, 98 S.Ct. 401, 54 L.Ed.2d 281 (1977).

“ ‘(W)here an act creates a right or liability or imposes a duty and prescribes a particular remedy for its enforcement such remedy is exclusive and must be strictly pursued. . . . This means that one who fails to exhaust his statutoiy remedies may not thereafter raise an issue which could have and should have been raised in the proceeding afforded by his statutory remedy.’ (citations omitted)

“Philadelphia v. Sam Bobman Department Store Co., 189 Pa. Super. 72, 78, 149 A.2d 518, 521 (1959). See also, Gaebel v. Thornbury Township, 8 Pa. Commw. 399, 402, 303 A.2d 57, 60 (1973). This rule is particularly applicable to procedures relating to appeals within and from administrative bodies. Philadelphia v. Sam Bobman Department Store Co., 189 Pa. Super. at 78, 149 A.2d at 521.”

The doctrine of exhaustion of administrative remedies, however, does not apply when the remedy does not allow for adjudication of the issues raised. Village Charter School v. Chester Upland School District, 813 A.2d 20 (Pa. Commw. 2002).

Section 1105 of the city charter sets forth generally the method for disposition of referendum disputes, including providing allowance for judicial review. Under section 1105, if a petitioners’ committee is dissatisfied with the determination of a city clerk on the sufficiency of a petition, it can seek redress from city council or through an amendment of the petition. If city council renders an adverse decision, section 1105 expressly permits the petitioners’ committee to seek judicial review. Further, the committee may opt to bypass a determination by city council and proceed directly to the court, also expressly permitted by section 1105.

Unfortunately, section 1105 is limited to providing procedures for review of a city clerk’s determination on a petition, and does not address how to proceed if the city clerk rejects an affidavit. Arguably, if under the terms of the city charter, defendant City Clerk had a mandatory duty to accept the affidavit and issue blank petitions, her failure to do so could be construed as an action on the “sufficiency of a petition,” and therefore governed by section 1105. See Municipality of Mt. Lebanon v. Erskine, 85 Pa. Commw. 490, 482 A.2d 1195 (1984). Here, however, section 1103(a) provides defendant City Clerk with limited authority to review the affidavit for “validation” purposes. The precise issue, therefore, is whether defendant City Clerk improperly refused to accept the affidavit, an issue which section 1105 was not designed to address. Thus, contrary to defendants’ assertions, sections 1101-1109 of the city charter does not allow for adjudication of the issue raised.

Defendants also claim that plaintiffs could have pursued their remedy through section 1111 or section 1112 of the city charter. We disagree.

Section 1111 authorizes qualified voters of the City of Reading, through filing of a petition, to enter an agenda item on the regular agenda of city council. Section 1112 authorizes qualified voters of the City of Reading, upon filing a petition, to require city council to hold a special meeting.

In contrast to section 1105, neither section 1111 nor section 1112 provide a mode for administrative relief, nor a final determination which would be ripe for judicial review. Review of this issue is a matter of right. Sections 1111 and 1112 require 35 signatures and 200 signatures, respectively, to gain audience before city council. A requirement that additional signatures be obtained before review is permitted imposes an inappropriate threshold on plaintiffs. Clearly, section 1111 and section 1112 were not designed for review of referendum proceedings.

Finally, defendants argue that plaintiffs could have submitted the issue to the Charter Board established by amendment I to the city charter. Amendment I, section 2, provides for the creation of a “Charter Board.” This board is given jurisdiction to “hear and decide all cases alleging violations of the charter or administrative code” and to “issue binding opinions, impose penalties and administrative fines, refer cases for prosecution and conduct investigations on its own initiative and on referral or complaint.”

However, as pointed out by plaintiffs, the issue of whether the charter board is an appropriate tribunal for administrative review is moot because the charter board, though created, is not currently able to function in the manner set forth in amendment I, section 2.

Amendment I, section 2(c), required city council to adopt by ordinance regulations by which the charter was to operate, stating: “within 12 months of the effective date of this amendment, city council shall, by ordinance, adopt regulations implementing this section. Such ordinance shall provide penalties and other enforcement mechanisms, as well as procedures by which the Charter Board shall operate in accordance with local agency and other applicable law.”

These regulations have not been adopted. The board is without mechanisms to hear and decide disputes, such as the issue at bar. Therefore, even assuming the board would have the authority to adjudicate referendum disputes, plaintiffs cannot be penalized for failing to seek relief from a board incapable of practical function.

General rules of statutory construction are applicable in interpreting the provisions of a home rule charter. Under these rules, the court is to construe a section of the charter with reference to the entire charter and not apart from its context. Cottone v. Kulis, 74 Pa. Commw. 522, 526, 460 A.2d 880, 882 (1983), citing Insurance Department v. Adrid, 24 Pa. Commw. 270, 275, 355 A.2d 597, 599 (1976).

It is apparent from review of the home rule charter that the drafters intended review of referendum proceedings to be handled through section 1105. As stated, however, section 1105 does not provide an avenue for review of the issue at bar. We find, therefore, that the administrative remedies provided for by the city charter are inadequate. The doctrine of exhaustion of administrative remedies does not apply.

The next question is whether plaintiffs can maintain a mandamus action. The remedy of mandamus is available to compel “performance of the ministerial, mandatory duty of a public official where there is clear legal right to performance and there is no adequate legal remedy.” Borger v. Pleasant Valley School District, 122 Pa. Commw. 187, 189, 551 A.2d 648, 649 (1988). The purpose of mandamus is not to establish legal rights but to enforce those rights which are already established. Waters v. Commonwealth, Department of Corrections, 97 Pa. Commw. 283, 287-88, 509 A.2d 430, 432 (1986).

Mandamus is an appropriate remedy here. If, as plaintiffs urge, the proposed affidavit complied with section 1103(a), then defendant City Clerk had a mandatory duty to issue the blank petitions. As plaintiffs have no other remedy to compel performance of this duty, they may seek the issuance of a writ of mandamus.

Based on this ruling, this court also finds that the filing of the complaint in mandamus was timely. As already stated, an action in mandamus is subject to a six-month statute of limitations, pursuant to 42 Pa.C.S. §5522(b)(l), not the 30-day limitation required by 2 Pa.C.S. §752, relating to an appeal from adjudication of a local agency. Accordingly, defendants’ preliminary objections are overruled.

We turn then to plaintiffs’ demand for peremptory judgment. A peremptory judgment in a mandamus action is appropriately entered only where there exists no genuine issue of fact, and where the case is free and clear from doubt. Forward Township Sanitary Sewage Authority v. Township of Forward, 654 A.2d 170 (Pa. Commw. 1995).

We note, preliminarily, that there are no material issues of fact. Defendants do not dispute that the five committee members presenting the questioned affidavit were, in fact, qualified voters of the City of Reading. Defendants’ argument is simply that the affidavit was defective because it did not expressly declare that the members of the committee were “qualified voters of the city.”

Plaintiffs counter by arguing that section 1103(a) does not require that the affidavit contain such a declaration. Section 1103 does provide that the members of the committee be qualified voters, and that the affidavit set forth the names and addresses, specifying the address to which all notices to the committee are to be sent.

However, section 1103(a) does not require a written declaration that the members are qualified voters. Plaintiffs argue that since the charter does not require such a declaration, defendant City Clerk cannot refuse the affidavit on this basis.

It appears that while the proposed affidavit is technically sufficient under the terms of section 1103(a), the inquiry does not stop there. The sufficiency of the affidavit must also be considered within the context of the Pennsylvania Election Code, 25 P.S. §2601 et seq. In the Harrisburg Sunday Movie Petition Case, 352 Pa. 635, 44 A.2d 46 (1945), the Supreme Court held that affidavits supporting initiative petitions must comply with sections 2868 and 2869 of the Election Code, notwithstanding that these sections govern nomination petitions only. The Supreme Court stated: “all the safeguards the law has placed around nomination petitions in order to insure their genuineness, have also been placed around the petitions to be filed for the purpose of causing to be submitted to the electorate in any municipality the [initiative] question.” 352 Pa. at 639, 44 A.2d at 48. In Petition of Werner, 662 A.2d 35 (Pa. Commw. 1995), a matter involving a referendum protesting the passage of an ordinance by Borough Council of Phoenixville, the Commonwealth Court, citing the Harrisburg Sunday Movie Petition Case as authority, and noting that the section of the borough code did not contain an affidavit requirement, nevertheless, held that the Election Code’s affidavit requirement is applicable. 662 A.2d at 38.

Further, the requirements of the Election Code are material, not merely technical. As stated by our Supreme Court in the Harrisburg Sunday Movie Petition Case:

“The filing of petitions with agencies of government, which petitions are to be the basis of official actions by those agencies, without appropriate verifications of such petitions by some person who is qualified to certify under oath to the genuineness of those petitions to the best of the affiant’s information and belief, would be an anomaly in the administration of our government, and we cannot believe that the legislature intended to either authorize or tolerate such an anomaly in the petitions it provided for as the basis of holding a municipal election on the question of [the initiative].” 352 Pa. at 639, 44 A.2d at 47.

Further, our Supreme Court in the case of In re Petition of Cianfrani, 467 Pa. 491, 494, 359 A.2d 383, 384 (1976), held:

“[T]he provisions of the election laws relating to the form of nominating petitions and the accompanying affidavits are not mere technicalities but are necessary measures to prevent fraud and to preserve the integrity of the election process. See e.g., Catherine Township Liquor Referendum Case, 382 Pa. 291, 293, 114 A.2d 145, 146 (1955); Harrisburg Sunday Movie Petition Case, 352 Pa. 635, 638, 44 A.2d 46, 47 (1945). The requirements of sworn affidavits are to insure the legitimacy of information crucial to the election process. Thus, the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process.”

Sections 2868 and 2869, deemed applicable to initiative and referendum proceedings by the Supreme Court in the Harrisburg Sunday Movie Petition Case, require a declaration by a signatory that he or she is a qualified elector. Section 2868 requires the signer of a nomination petition to declare that he is a “qualified elector at the county therein named.” Section 2869 requires the circulator’s affidavit set forth that he or she is a “qualified elector duly registered and enrolled as a member of the designated party of the state, or of the political district, as the case may be, referred to in said petition.”

While the 1103(a) affidavit questioned in this case does not support a petition, but in fact precedes it and is merely the basis for initiating the referendum proceeding, nevertheless, the same safeguards should apply. Section 1103(a) sets forth that the function of the city clerk is to receive and validate the affidavit, then issue the appropriate petition blanks to the petitioners. The validation process is merely a cursory review by the city clerk to determine whether the affidavit, on its face, is sufficient under section 1103(a). To determine this sufficiency, the city clerk must accept that the members of the petitioners’ committee are qualified voters. This cannot be done if the members do not so declare by affidavit. It is not feasible, nor required, for the city clerk to conduct an independent investigation to determine whether the committee members are, in fact, qualified voters. She is merely to accept or reject the affidavit on the basis of the statements contained within it. If there is a factual dispute on whether a member is a qualified voter, that can be determined at a later time after petitions are filed, under section 1105.

This court holds that an affidavit submitted in accordance with section 1103(a) must contain a declaration that the signing members of the petitioners’ committee are qualified voters of the City of Reading. Plaintiffs’ motion for peremptory judgment must be denied.

Accordingly, we enter the following order:

ORDER

And now, May 4,2005, upon consideration of the preliminary objections of defendants, Linda A. Kelleher, in her capacity as City Clerk of the City of Reading, Pennsylvania, and City of Reading, Pennsylvania, to plaintiffs’ complaint, response thereto, briefs filed by the parties and after argument held, the preliminary objections are overruled.

Upon consideration of the motion of plaintiffs for peremptory judgment, response thereto, briefs filed by the parties and after argument held, the motion for peremptory judgment is hereby denied.

      . Argument could also be made that plaintiffs’ bypass of defendant City Clerk in preparing and circulating a referendum petition they created, then presenting the petition to city council, which petition was refused on November 22, 2004, triggered section 1105 administrative relief. In this scenario, the proper method would have been to appeal from the refusal by city council within 30 days, rather than filing a mandamus action. No harm occurred though, for the filing date of the mandamus action complied with the 30-day time limit for appeals to this court from the decision of city council. Albrechta v. Borough of Shickshinny, 129 Pa. Commw. 206, 565 A.2d 198 (1989), appeal denied, 525 Pa. 620, 577 A.2d 891 (1990). 42 Pa.C.S. §708(c) expressly states that the commencing of a mandamus action, in lieu of an appeal from the determination of the government unit, is alone not a ground for dismissal.

      . Plaintiffs’ committee has a beneficial interest in requiring the city’s performance of its duties under the charter and is, therefore, entitled to judicial review of defendant City Clerk’s refusal of the affidavit. See Municipality of Mt. Lebanon v. Erskine, 85 Pa. Commw. 490, 493-94, 482 A.2d 1195, 1197 (1984).

      . 25 P.S. §§2868, 2869.


author: NANO VIC, P.J.,

text:
    Gibson v. Mann

      C.P. of Carbon County,
    no. 04-1854.

      Cynthia A. Dyrda-Hatton, for plaintiff.

      Massie C. Gibson III, pro se.

      Barry C. Shabbick, for additional defendant.
    April 22, 2005
   NANO VIC, P.J.,

FACTUAL AND PROCEDURAL BACKGROUND

The subject of these custody proceedings, Amanda Gibson, is 12 years old. Amanda is the daughter of Lori Gibson, plaintiff (Mother), and Massie C. Gibson III, defendant (Father). She has one sister, Brianne Mann, age 16, and one brother, Jayson Gibson, age 11.

Amanda’s parents separated on May 28, 1997, and have lived separate and apart since that time. For more than four years, Amanda’s father has not been active in her life. Although named as a defendant and appearing at the initial conciliation conference, Amanda’s father did not participate further in these proceedings.

As of March 2000, Amanda’s mother was unemployed and homeless, and had no place to go with her three children. Desperate to find a home for her children, she contacted her father, with whom she had a strained relationship, and asked for his help. Gerald Mann, the Mother’s father, and his wife, Penelope Mann, the Mother’s stepmother, agreed to permit the children to live with them on a temporary basis.

In accordance with this agreement, the children were brought to the Manns’ home in early March 2000. The original arrangement was for the Manns to care for the children during the week and for the Mother to have the children on weekends. The Mother provided a handwritten note to the Manns granting them temporary custody of the children and authorizing them to enroll the children in the Palmerton Area School District. The Mother was not to live in the Manns’ home and did not do so.

The foregoing arrangement continued for approximately three weeks. On the third weekend, the Mother was late to pick up her children. By the time the Mother arrived, the Manns had already left their home with the children to attend a baseball game in which the Manns’ son was playing and had left a note to the Mother asking her to contact them when she wanted to see her children. For almost four months, Mother made no contact.

Instead, in April 2000, the Mother moved to Texas without telling the Manns that she was leaving or where she could be located. Not until July 2000, during the course of support proceedings, did the Manns learn that the Mother was residing in Texas. On August 23, 2000, the Manns filed a custody action in Carbon County docketed to no. 00-1608. In or about August 2000, the Manns also learned for the first time that Amanda was likely sexually abused by the Mother’s older brother in February or March 2000, while living temporarily in the home of the Mother’s sister, Hanelora Mann.

A custody order granting primary custody of Amanda and Brianne to Gerald Mann and providing for custody/ visitation with the Mother at such times as agreed upon between the parties was entered on October 16, 2000; however, with the exception of Amanda, by this date the other children were placed by the Manns with other family members. For the next four years, the Manns took care of Amanda.

On June 28,2004, three days after her father died, the Mother filed a custody complaint seeking primary custody of Amanda. Prior to that date, in August 2001, the Mother had briefly returned from Texas (for three days) and asked to have Amanda returned; this request was denied. Mother later moved back to Pennsylvania from Texas on May 12, 2002. On May 20, 2002, after the Mother and the Manns were unable to agree on a custody schedule, the Mother filed a contempt proceeding against the Manns claiming the Manns were in violation of the October 16, 2000 custody order; this request was also denied. Since October 5, 2004, pursuant to an interim order, the Mother has been provided partial physical custody of Amanda during the day on alternating weekends and every Wednesday.

At the present time, Mother appears to have turned her life around. While previously the Mother maintained a nomadic existence without any stable housing, and had insufficient income to care for herself or her children, today the Mother rents an apartment from her mother where she has resided for three years. Since returning from Texas she has full-time employment, and lives with, and supports, her daughter, Brianne, and her son, Jayson. There is no evidence that the Mother is currently an unfit parent.

The Mother originally named her father’s estate as the defendant in these custody proceedings. Subsequently, Father was named as the defendant. Following a custody conference before the custody hearing officer, Penelope Mann (Grandmother) was included as an additional defendant in the proceedings. Initially, Mother challenges the standing of Grandmother to participate as a party.

DISCUSSION

In Pennsylvania there are three distinct categories of parties involved in child custody disputes: those between parents, those between a parent and the state, and those between parents and a third party. Ellerbe v. Hooks, 490 Pa. 363, 366, 416 A.2d 512, 513 (1980). For these purposes, a third party is any person who is not a natural or biological parent. McDonel v. Sohn, 762 A.2d 1101, 1105 (Pa. Super. 2000), appeal denied, 566 Pa. 656, 782 A.2d 547 (2001). As between the Mother and Grandmother, it is the third category with which we are concerned.

This classification is significant, bearing as it does on questions both of standing — whether the third party has an interest which the law recognizes as deserving of protection and therefore justiciable — and of the nature of the burden of proof faced by the third party. As to standing, absent a statute conferring automatic standing (e.g., chapter 53 of the Domestic Relations Code, 23 Pa.C.S. §5311 et seq. (permitting grandparents and great-grandparents to seek visitation or custody of their grandchildren or great-grandchildren)), in the context of dependency proceedings, or where a third party has acted in loco parentis, third parties in a custody proceeding are generally without standing. This result is justified on two bases: “not only to protect the interest of the court system by assuring that actions are litigated by appropriate parties, but also to prevent intrusion into the protected domain of the family by those who are merely strangers, however well-meaning.” J.A.L. v. E.P.H., 453 Pa. Super. 78, 86, 682 A.2d 1314, 1319 (1996); see also, Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000) (plurality).

In custody cases, a third party standing in loco parentis to the child has standing to seek full or partial custody of the child he has cared for. D.N. v. V.B., 814 A.2d 750, 753 (Pa. Super. 2002).

“The phrase ‘in loco parentis’ refers to a person who puts [her] self in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of‘in loco parentis’ embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties.” Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998) (quoting Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968)).

“The rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child.” T.B. v. L.R.M., 567 Pa. 222, 229, 786 A.2d 913, 917 (2001).

In J.A.L. v. E.P.H., supra, the Superior Court stated:

“The in loco parentis basis for standing recognizes that the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child’s best interest. Thus, while it is presumed that a child’s best interest is served by maintaining the family’s privacy and autonomy, that presumption must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a parent. Where such a relationship is shown, our courts recognize that the child’s best interest requires that the third party be granted standing so as to have the opportunity to litigate fully the issue of whether that relationship should be maintained even over a natural parent’s objections.” Id. at 88-89, 682 A.2d at 1319-20.

In this case, Grandmother can be granted standing, if at all, only as a third party who has stood in loco parentis to Amanda. Moreover, in loco parentis status cannot be created in defiance of the natural parents’ wishes and the parent/child relationship. Gradwell v. Strausser, 416 Pa. Super. 118, 126, 610 A.2d 999, 1003 (1992).

In the present case, we are convinced that Grandmother has standing to participate as a party in these proceedings. For more than four years, Grandmother has assumed primary parental responsibility of Amanda in a family setting. Amanda has resided with Grandmother in her home and has been treated and raised as a daughter. During this time, Grandmother has provided Amanda with not only the basic necessities of life — food, shelter and clothing — but has also seen to her medical care, including braces and counseling for the abuse by Mother’s brother, overseen her schooling, and, most importantly, stood in the shoes of the Mother. Grandmother’s involvement in Amanda’s life has been sustained, substantial and sincere.

Nor is the relationship which has developed one-sided: Amanda looks on Grandmother as a daughter does her mother, loves Grandmother as if she were her mother, and wants to remain with Grandmother. Over this same time-period, Amanda has developed stable and happy relationships not only with Grandmother, but also with her classmates at school, and participates in both school and extracurricular activities.

Grandmother, unquestionably, has played a special role in Amanda’s life, sufficient, we believe, to grant Grandmother standing. We also find that this status was created first by the consent, and later by the acquiescence, of the Mother.

Notwithstanding our determination that Grandmother has standing to participate in these proceedings, Grandmother is a third party subject to the standards applicable to third parties in evaluating and weighing and comparing the competing factors relevant to deciding the merits of a custody claim. See Campbell v. Campbell, supra (natural mother confused principles of standing with standards to be applied in deciding custody dispute). Whereas standing is a prerequisite to the exercise of a court’s jurisdiction to hear a case, in custody disputes between a parent and a non-parent, the biological parent’s prima facie right to custody has the effect of increasing the evidentiary burden on the non-parent seeking custody. J.A.L., 453 Pa. Super. at 87, 682 A.2d at 1319. On this issue our Supreme Court stated:

“It is axiomatic that in custody disputes, ‘the fundamental issue is the best interest of the child.’ ... In a custody contest between two biological parents, ‘the burden of proof is shared equally by the contestants....’ ... Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, ‘the parents have a “prima facie right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents’ side.’...” Charles v. Stehlik, 560 Pa. 334, 340, 744 A.2d 1255, 1258 (2000), cert. denied, 530 U.S. 1243, 120 S.Ct. 2689, 147 L.Ed.2d 961 (2000). (citations omitted)

This standard does not preclude awarding custody to a non-parent, but rather “simply instruct[s] the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy.” Ellerbe v. Hooks, 490 Pa. at 368, 416 A.2d at 514. Under this standard, special weight and deference must be accorded to the parent-child relationship. B.A. v. E.E. ex rel. C.E., 559 Pa. 545, 549 n.1, 741 A.2d 1227, 1229 n.1 (1999). At the same time, we note that a biological parent need not be proven to be unfit for a third party to prevail in a custody proceeding. Charles v. Stehlik, 560 Pa. at 342, 744 A.2d at 1259.

The difficult question that we have yet to decide is whether the best interests of Amanda will be better served by permitting her to continue to develop with Grandmother, with whom she has thrived and has been well cared for, or with her mother, who, while previously recognizing her inability to care for Amanda by placing her in the care of the Manns, has changed her life and is now capable of providing a home for Amanda, as well as for Amanda’s sister, Brianne, and her brother, Jayson. Whether compelling and convincing reasons exist for Grandmother to retain primary physical custody of Amanda is a question which we will address after the hearing on the merits has been concluded.

CONCLUSION

In accordance with the foregoing, Mother’s petition challenging Grandmother’s standing to participate as a party in these proceedings will be denied.

      . The record is silent as to whether the custody complaint docketed to no. 00-1608 was ever properly served on the Mother and she denies being aware of the custody proceedings until after an order was entered. It is also unclear from this record as to why primary custody was awarded to Gerald Mann only and not to both Gerald and Penelope Mann, the plaintiffs in the custody complaint.

      . Had service of the Manns’ custody action filed in 2000 been properly perfected, there would be no issue of standing in this case. See Campbell v. Campbell, 448 Pa. Super. 640, 672 A.2d 835 (1996) (order awarding joint legal custody and partial physical custody to the paternal grandparents creates standing in the grandparents to seek primary physical custody).
      In order to avoid a delay in hearing the merits of the Mother’s custody complaint, a hearing on the Mother’s challenge to Grandmother’s standing was held concurrently with the hearing on the merits. This is consistent with the goal that custody actions be resolved as quickly as possible. See Pa.R.C.P. 1915.5(a); Kellogg v. Kellogg, 435 Pa. Super. 581, 589, 646 A.2d 1246, 1250 (1994).

      . In Hill v. Divecchio, 425 Pa. Super. 355, 365, 625 A.2d 642, 647-48 (1993), the Superior Court held that a step-grandparent is not the equivalent of a biological grandparent for purposes of this statute.

      . The Due Process Clause of the Fourteenth Amendment of the United States Constitution protects the interest of parents in the care, custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000). Therefore, “so long as a parent adequately cares for his or her children (i. e., is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69.


author: KAMEEN, P.J.,

text:
    Andrews v. DeStefano

      C.P. of Pike County,
    no. 842-2003 Civil.

      George W. Westervelt Jr., for plaintiff.

      Alicia M. Caridi, for defendant Vector Security Patrol.

      Nicholas Haros, for defendant Saw Creek Estates.

      Harry T. Coleman, for defendant Patricia DeStefano.
    March 23, 2005
   KAMEEN, P.J.,

On August 11, 2003, a complaint was filed in which the plaintiff, Christine Andrews, alleges three counts. Count I is a negligence claim against defendants Patricia DeStefano and Thomas DeStefano, Count II is a negligence claim against defendant Saw Creek Estates Community Association Inc. and Count III is a negligence claim against defendant Triple A Security Patrol (Vector Security). The factual averments are that on September 16,2001, the plaintiff was injured when allegedly attacked by a German shepherd owned by defendants DeStefano.

On October 22,2004, defendant Vector Securities filed a motion for summary judgment and defendant Saw Creek filed a motion for summary judgment on November 22, 2004. It is those two motions that are presently before the court.

It is proper for any party to move for summary judgment in whole or in part as a matter of law whenever there exists no genuine issue of any material fact as to a necessary element of the cause of action or defense. See Pennsylvania Rule of Civil Procedure 1035.2. However, oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. See Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

It is clear that if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action. See Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988). Therefore, the moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. See Metzler v. Staples, 36 D.&C.4th 236, 239 (1996), citing Pennsylvania Gas & Water Co. v. Nenna & Frain Inc., 320 Pa. Super. 291, 467 A.2d 330 (1983). Once the moving party has met its burden, the adverse party may not rest upon the mere allegations or denials of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial. See Metzler v. Staples, supra.

Additionally, the court is to accept as true all well-pleaded facts in the non-moving parties’ pleadings, as well as the admissions on file, giving to them the benefit of all reasonable inferences to be drawn therefrom and the record must be examined in the light most favorable to them. See Dunhill of Lancaster Inc. v. AC and S Co. Inc., 23 D.&C.3d 173, 176 (1982), citing Ritmanich v. Jonnell Enterprises Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971).

The record in this matter consists of a complaint, answer and new matter filed thereto, replies to new matter, a cross-claim of defendant Saw Creek Estates, motions for summary judgment, responses filed thereto, depositions and memorandums of law and briefs in support and opposition thereof. We have reviewed all and have examined the record in the light most favorable to the non-moving parties in this matter.

Count II of the complaint filed states that Saw Creek was charged with the duty of establishing and enforcing the rules and regulations in the community and breached that duty in failing to take the appropriate measures to prevent dogs from running in the community. Count III states that Vector Security was hired by Saw Creek and was charged specifically with the duty of preventing dogs from running at large in the community and failed to do so by not taking appropriate measures to prevent such. The demand for relief is $20,000 against each defendant named. The motions for summary judgment counter by arguing that neither Saw Creek nor Vector Security had a duty to foresee or the ability to intervene before a dog would leave an owner’s property and thus would owe no duty nor breached the same.

The basis of plaintiff’s argument is that the violation of the “lease law” in Pennsylvania is negligence per se and because Saw Creek has rules regarding animals and Vector undertook enforcing such rules, a duty existed. We disagree with this argument. To establish a cause of action in negligence, the plaintiff must demonstrate that the defendants owed a duty of care to the plaintiff, defendant breached that duty, the breach resulted in injury to the plaintiff and the plaintiff suffered an actual loss or damage. See Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). Duty is predicated upon the relationship existing between the parties at the relevant time. See Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987). Additionally, the existence of a duty requires some degree of knowledge. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

The case of Dick v. Detwiler, 7 D.&C.4th 629 (1990), from the Court of Common Pleas of Blair County, Pennsylvania, addresses similar issues as exist here. In that case, a neighbor filed a complaint against a dog owner alleging a violation of the Pennsylvania Dog Law (3 P.S. 459-305) for failing to take appropriate steps to confine the dog and additionally brought a negligence count against the dog owner’s landlord. The plaintiff argued that the landlord was negligent in permitting her tenant to keep a dangerous dog without restraining it. The court addressed the specific issue of whether a landlord may be held liable for injuries to third persons caused by a tenant’s pet. The court noted that generally it is the animal’s owner that is responsible for injuries to others caused by his or her pet; however, the Pennsylvania Superior Court held in Palermo v. Nails, 334 Pa. Super. 544, 483 A.2d 871 (1984), that a landlord may be held liable for injuries caused by animals owned by a tenant when the landlord has knowledge of the presence of the dangerous animal and where he or she has the right to control or remove the animal.

While the specific facts may differ, the two-prong analysis applied in Dick v. Detwiler should be applied to this matter as well. The facts are clear that defendants Saw Creek and Vector Security Patrol were not the owners of the dog that allegedly attacked the plaintiff, so the issue is whether that dog was within sufficient control of Saw Creek and Vector Security Patrol. After review of the facts in this case, it does not appear that the dog was. Depositions taken indicate that the dog’s owner visited the community no more than six times prior to the incident, the visits were limited to weekends and the dog was only present two or three times. The deposition of Ronald W. Garwood, Vector Security’s assistant operations manager, stated that the office received no complaints regarding the dog in question and that, whenever dog complaints are received, it was Vector Security’s recommendation that the complainant contact the dog warden as Vector Security does not remove the animals. The Association does have rules regarding animals and Vector Security does issue citations for violations of those Association rules; however, defendants DeStefano never received such a citation.

The second step of the analysis would be to determine whether Vector Security or Saw Creek had any knowledge of the dog’s propensities prior to the incident. Based upon the same facts cited above, it is clear that they did not. In the case of Luberto v. Ellis, 48 D.&C.4th 553 (2000), the court did not impose liability on a veterinary service named as a defendant because the veterinary service did not have custody or control over the dog at the time of the incident and that liability for a dog’s acts must be based upon knowledge of the dog’s propensities and failure to take proper steps to prevent those propensities from causing injury. Nothing in the record tends to indicate that Saw Creek or Vector Security had the required knowledge. Consequently, both prongs fail.

For the foregoing reasons and after careful review, we conclude that a prima facie case of negligence has not been established against Saw Creek Estates and Vector Security Patrol; therefore, summary judgment must be granted as a matter of law. The case against Saw Creek Estates Community Association Inc. and Triple A Security Patrol n/k/a The Jupiter Group Inc. t/a Vector Security Patrol is hereby discontinued with prejudice.

ORDER

And now, March 23, 2005, upon consideration of the defendants Saw Creek Estates Community Association Inc. and Vector Security Patrol’s motion for summary judgment, briefs submitted and oral argument held thereon, the said motion is hereby granted.


author: LESIONEN, J.,

text:
    Commonwealth v. Payne

      C.P. of Fayette County,
    no. 351 of 2004.

      Nancy Duffield Vernon, district attorney, for Commonwealth.

      Samuel J. Davis, for defendant.
    March 17, 2005
   LESIONEN, J.,

CORRECTED OPINION & ORDER

[This corrected opinion and order is filed because some of the dates in the opinion and order filed March 16, 2005 were incorrect.]

And now, March 17, 2005, upon consideration of defendant’s omnibus pretrial motion for writ of habeas corpus and for suppression, the 146-page transcript of the preliminary hearing submitted at the hearing on said motion, and the briefs of counsel submitted on October 13,2004 andNovember 12,2004; the court hereby finds that the Commonwealth has established that the statements were voluntary by a preponderance of the evidence and the Commonwealth has presented sufficient evidence to support aprima facie case as to the charge of criminal homicide. A brief recitation of the evidence is necessary to an understanding of the issues raised: On June 5,2003, in the early morning, the defendant’s neighbor, Vic Benco, called the police to report that the defendant had found the body of her husband, Harold Eugene Payne, in his bed with a single gunshot wound to the head. The defendant and her son were the only persons present in the home at the time. Defendant was interviewed, and she provided a statement to the police on that date. Subsequently, after scientific analysis of the evidence found at the crime scene, upon the defendant’s person, and in her purse, an arrest warrant was issued for her. She was invited to return to the state police barracks on December 17, 2003, gave another oral statement, and was subsequently arrested on the previously issued warrant. Portions of the defendant’s statements were used as part of the Commonwealth’s case at the preliminary hearing.

The first issue, logically, must be the admissibility of the defendant’s statements, since the statements could not be part of the proof of a prima facie case if they are suppressed. As noted above, the only evidence offered by the Commonwealth was the transcript of the preliminary hearing, from which this court makes the following findings:

(1) On June 5,2003, the defendant was asked to go to the barracks to be interviewed, and did not initially want to go.

(2) When advised repeatedly that such an interview was “just normal procedure,” she reluctantly, but voluntarily, agreed to go, and was transported to the barracks by one of the officers.

(3) Corporal Beverly Ashton provided defendant with coffee when the defendant complained of a dry mouth.

(4) The actual interview of June 5, 2003, was conducted at the state police barracks by Trooper Thomas Maher and Corporal Tobin. Defendant was “visibly shaken.”

(5) The defendant was not in custody on June 5,2003, but was interviewed for investigatory purposes. There is no evidence that she was the focus of the investigation at the time of the interview, and there is no testimony to indicate that she was given Miranda warnings.

(6)Defendant was subsequently interviewed on December 17,2003, after the warrant for her arrest had been issued.

(7) That interview was also conducted at the Pennsylvania State Police barracks, where the defendant appeared voluntarily at the request of the officer.

(8) Miranda rights were read to the defendant, and she signed a waiver of those rights at 12:15 p.m. on that date. In addition to Trooper Maher, Corporal Beverly Ashton was also present. In addition to signing the waiver, the defendant also acknowledged understanding the Miranda rights orally, and she agreed to answer questions and give a statement.

The court notes that the quantity of evidence offered on the issue of suppression is unusually small. Neither party offered additional testimony at the hearing before the court, but both chose to rely on the transcript of the preliminary hearing, where suppression of the statements was not properly at issue. That said, the evidence that the statements were voluntarily given, and that the Miranda requirements were properly observed on December 17, 2003, is essentially unchallenged on this record. For these reasons, the court has no option but to hold that the Commonwealth has established the admissibility of the statements by a preponderance of the evidence at this point. Of course, the defendant may still choose to challenge the voluntariness of the statements at trial.

The pretrial issue most strenuously argued by the defense is whether or not the Commonwealth presented sufficient evidence at the preliminary hearing to justify submitting the charge of criminal homicide to a jury. The standard for determining whether or not the Commonwealth has established a prima facie case at a preliminary hearing is well established:

“At the pretrial stage of a criminal prosecution, it is not necessary for the Commonwealth to prove the defendant’s guilt beyond a reasonable doubt, but rather, its burden is merely to put forth a prima facie case of the defendant’s guilt. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589, 591 (1991). A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense. Id. (citing Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983)). The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). Moreover, ‘[inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case. ’ Id. at 1180 (quoting Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412, 414 (1990)).” Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862, 866 (2003).

In turn, this standard is essentially identical to the standard for determining the sufficiency of the evidence after a conviction at trial:

“The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof or proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Nahavandian, 849 A.2d 1221, 1229-30 (Pa. Super. 2004). (citations omitted)

The two major complaints made by the defense are that the coroner’s opinion (that the death was not a suicide) is not credible, and that the evidence of the defendant being the shooter is purely circumstantial.

The coroner who testified is Dr. Cyril Wecht, whose qualification as an expert pathologist cannot reasonably be challenged. (At the veiy least, his qualifications cannot be challenged when the issue is a prima facie case.) It was his expert opinion that the gunshot wound to the decedent’s head was not self-inflicted because the stippling pattern around the wound indicated the muzzle of the firearm was six to 12 inches away from the decedent’s head when it was fired; and because, in the 5,000 (or more) autopsies of gunshot victims that Dr. Wecht has performed or reviewed, no suicide victim had ever held the gun that far away.

In addition to the testimony of Dr. Wecht, the position of the decedent in the bed is arguably inconsistent with a self-inflicted wound, as the deceased would have had to release the gun and then place his arm under his body after fatally shooting himself in the head.

Further evidence that the fatal gunshot wound was not self-inflicted overlaps with the circumstantial evidence of the defendant’s participation in the shooting. Specifically, the defendant denied being in the room when the shot was fired, but unexplained gunshot residue was found on the sweatshirt defendant was wearing in 46 separate places, as well as on the palms of both of her hands. (When confronted with the gunshot residue evidence on December 17,2003, defendant stated: “I know this looks bad for me, I just don’t understand. I would arrest me too. I would like to tell you, but I can’t. I just can’t remember. Who do I call if I remember?”)

Although the evidence is wholly circumstantial, the evidence that the defendant was very near when the gun was fired is strong. Defendant was found with latex gloves in her purse, which could explain the lack of her fingerprints on the weapon. Defendant freely discussed her husband’s addiction to crack cocaine and how he had allowed that addiction to destroy the family’s financial security. In addition, there were three notes in her purse that would arguably provide other motives for her to kill her husband (one note referred to a sexual affair husband allegedly had with a woman who was HIV positive and dying of AIDS, and the other two notes are interpretable as suicide notes evidencing advance deliberation and consciousness of guilt by the defendant).

Essentially, the Commonwealth’s case at the preliminary hearing can be summarized as evidence that the defendant had several motives, the means, and the opportunity to kill her husband; that he did not kill himself; and, that there were no other persons found who had a motive, a means, or an opportunity to kill him.

The Commonwealth’s case is admittedly based wholly on circumstantial evidence, but, as noted above, that is perfectly permissible and appropriate.

“The Commonwealth need not prove the homicide by direct evidence; indeed in many instances, no witnesses are available to describe the incident which resulted in the death of the victim. Rather the Commonwealth may prove the homicide by circumstantial evidence.... The Commonwealth may establish the fact of a homicide by proving the death of the victim and establishing that the death resulted from criminal means....” Commonwealth v. Smith, 523 Pa. 577, 581-82, 568 A.2d 600, 602 (1989). (citations omitted)

Moreover, it has been held that “[circumstantial evidence suffices to prove any element or all the elements of the crime of homicide.” Commonwealth v. Crawley, 514 Pa. 539, 551, 526 A.2d 334, 340 (1987). (emphasis added)

The preliminary hearing testimony does not exclude all possibilities of innocence. The Commonwealth is never required to prove guilt to a mathematical certainty. A preliminary hearing is not a trial. Finding that the Commonwealth established a prima facie case in no way implies that a jury must find guilt, and does not even imply that the undersigned would find guilt (on the evidence presented to date) if seated as a member of defendant’s jury. Finding a prima facie case is simply the conclusion that the time, trouble, and expense of a full trial is justified. This court is satisfied that the circumstantial evidence in this case is strong enough to justify the submission of the case to a jury of the defendant’s peers:

“In convictions for murder, the sole, absolute and final responsibility for the verdict and its consequences rests with the jury. That responsibility comes from the performance of a public duty of the highest importance and is assumed when all the testimony, pro and con, is weighed and considered by them and a decision reached. Their conclusion cannot be reversed or set aside by this court unless there has been a trial mistake, or the evidence is insufficient to sustain the verdict as a matter of law.” Commonwealth v. Karmendi, 328 Pa. 321, 324, 195 A. 62 (1937).

The motion for writ of habeas corpus is, therefore, denied.

This denial is without prejudice to the presentation of a motion for judgment of acquittal at the close of the Commonwealth’s case in chief pursuant to Pa.R.Crim.P. 606(A)(1), if appropriate based on the evidence actually presented at trial.