author: CLARK, S.J.,

text:
    Tolbert v. Bowers

      C.P. of Bucks County,
    no. 96-005325-17-2.

      Joseph J. DiGiovanni, for plaintiffs.

      Michael Senoyuit, for defendant Pa. Financial Responsibility Assigned Claims Plan.

      John P. Gonzales, for defendants.
    September 7, 2000
   CLARK, S.J.,

Plaintiffs, passengers in a motor vehicle, were severely injured in an accident with a stolen van being operated by a 14-year-old runaway from a mental facility in Bucks County, Pennsylvania, which van was being pursued by Doylestown Township officers. At the conclusion of a five-day trial commencing January 31, 2000, the jury awarded both plaintiffs substantial verdicts. Post-trial motions were timely filed by defendants setting forth numerous reasons why they should be awarded judgment notwithstanding the verdicts, a new trial or a remittitur of damages.

At oral argument conducted on August 15, 2000, defendants emphasized two areas where they argued the trial judge erred in ruling against them on evidentiary matters. They also argued for judgment n.o.v.

The first evidentiary ruling concerned the defense attempt to bring before the jury the possession of certain narcotics found in the plaintiffs’ vehicle after the accident. And, also, the results of certain blood analyses of plaintiff Dorsey Williams and one Eric Wilburn, the driver of the car he occupied.

The defense made an offer of proof that a toxicologist could interpret the results of the blood tests on the driver, Eric Wilburn, and give an opinion that the amount of cocaine in Wilburn’s system at the time of the accident substantially impaired his ability to operate a motor vehicle.

The defense also argued at trial that the amount of cocaine in plaintiff Dorsey Williams’ system established that he was somehow contributorily negligent.

The court ruled prior to trial, and at trial in favor of plaintiffs’ motion in limine to preclude the defense from presenting any evidence or testimony relative to the laboratory analysis of Eric Wilburn’s blood extracted after the accident. In so ruling, the court concluded that there was no independent corroborative evidence that Wilburn was improperly operating his vehicle in any manner prior to the accident and, therefore, the results of the toxicology report were inadmissible. The court concluded that since the results of the report had no probative value, the introduction to the jury could only be unfairly prejudicial.

The court likewise ruled prior to trial and at trial in favor of plaintiffs’ motion in limine to preclude the defense from presenting any evidence or testimony relative to the laboratory analysis of Dorsey Williams’ blood extracted after the accident. In so ruling, the court concluded that there was no independent corroborative evidence that Williams in any way contributed to the happening of the accident and, therefore, the introduction to the jury could only be unfairly prejudicial.

At trial, plaintiffs produced one Frederick Magargal, a 47-year-old tractor-trailer driver with some 30 years driving experience as an eyewitness to the accident. He testified that on a clear day at about 3 p.m. he slowed and stopped at the intersection of Folly Road and County Line Road, after observing a van coming south on Folly Road, “going at a high speed . . . .” (N.T., 2/1/2000, p. 12.)

He further testified that he could tell that “the van wasn’t going to be able to stop for the stop sign, and that the vehicle (Wilburn) travelling eastbound on County Line Road was probably going to be in trouble.” His testimony went on as follows:

“Q. When the van got to the intersection of County Line and Folly Road, what did it do?
“A. Ran the stop sign.
“Q. Did it make a right or left turn?
“A. Made a right.
“Q. And that would have been westbound, the same direction as you were going?
“A. Yes.
“Q. Can you describe how it made that right turn?
“A. A wide right turn out into the eastbound lanes.
“Q. That’s the lane that you saw the car coming eastbound?
“A. Correct.
“Q. Can you describe what happened to that car?
“A. He was forced off the roadway.
“Q. Did you actually see that happen?
“A. Yes ....
“A. Shortly after leaving the travel portion of the road, it slammed into a telephone pole, and then went sideways and slide [sic] eastbound on County Line Road.” (N.T., 2/1/2000, pp. 14-15.)

In addition,

“Q. Did you ever see that vehicle traveling eastbound ever cross into the westbound lane?
“A. No.
“Q. He was always within his lane?
“A. Yes.
“Q. Until he was run off the road?
“A. Correct.” (N.T., 2/1/2000, p. 20.)

Still later on cross:

“Q. Regarding the vehicle in which plaintiffs were occupying, was that — can you describe the operation of that vehicle? Was that travelling in a safe manner?
“A. As I saw it, yes ....
“Q. Based on your observation, was that vehicle traveling in a safe manner?
“A. Yes.” (N.T., 2/1/2000, p. 28.)

Next at trial, the investigating police officer, Connie Johnson from Horsham Township Police Department, testified, without objection, that on page 3 of her report, she stated, “The operator of unit 1 (Wilburn) took the only evasive action possible to avoid hitting the van head-on.” (N.T., 2/1/2000, p. 67.)

Earlier, she had testified, without objection, that she took a statement from Eric Wilburn as follows:

“Operator of unit no. 1 (Wilburn) stated he was travelling east on County Line Road and then this van came out fast and made a wide right turn into his lane.
“He said he tried to steer away from the van and then he hit the telephone pole.” (N.T., 2/1/2000, pp. 38-39.)

The above is the only testimony presented at the trial on the manner in which Wilburn was operating his vehicle prior to impact. There was absolutely no evidence presented that Wilburn was operating his vehicle other than in a safe manner.

Eric Wilburn is not a party in this case. Therefore, the manner in which he was driving can only be relevant as it may impact on Bower’s negligent driving. However, the only evidence presented in this case bearing on Wilburn’s driving was that he was safely operating his vehicle in his own lane of travel when he swerved to avoid a head-on collision in his own lane with the Bower’s vehicle. And the evidence further discloses Bowers was speeding, out of control, had run a stop sign and proceeded into Wilburn’s lane of travel.

In the absence of some evidence that Wilburn was driving negligently, carelessly or recklessly, the fact that he had cocaine in his blood extracted after the accident, has no probative value. See Clinton v. Giles, 719 A.2d 314, 318 (Pa. Super. 1998).

Even if by some stretch of reasoning, the cocaine content in Wilburn’s blood is deemed to be a relevant factor in this case, it is so clearly prejudicial as to have been properly excluded in the exercise of this trial court’s discretion. See section 403 of the Pennsylvania Rules of Evidence which provides inter alia: “Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury

Speaking of “stretches,” it is even more difficult to understand the defense’s argument that the presence of cocaine in plaintiff Dorsey Williams’ system is tantamount to comparative or contributory negligence. Williams was a passenger. All the evidence clearly indicates Wilburn was driving safely. How could Williams have been possibly contributorily negligent in this case? Again, the trial court properly excluded the defense proffer in this regard. See Pascal v. Carter, 436 Pa. Super. 40, 647 A.2d 231 (1994).

In City of Pittsburgh v. Jodzis, 147 Pa. Commw. 234, 243, 607 A.2d 339, 344 (1992), the court stated:

“In Pennsylvania a trial court may properly exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury; ‘prejudice’ for the purposes of this rule does not mean detrimental to a party’s case, but rather, an undue tendency to suggest a decision on an improper basis. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa. Super. 14, 22, 473 A.2d 584, 588 (1984). The trial court has broad discretion regarding the admission of potentially misleading and confusing evidence. Id. In the present case, the trial court concluded that the city’s attempt to introduce the evidence of contraband [drugs] was designed to present scandalous information that was otherwise inadmissible, and logically unrelated to any legitimate determination of causation, and which would inflame the social conscience or biases of the jury and suggest a decision on an improper basis. Again, we agree that any probative value of this evidence was slight in comparison with the potential for prejudice; therefore, we find the trial court’s exclusion to be a proper exercise of discretion....”

The defense’s second major argument on evidentiary rulings presented at oral argument before this court on August 15, 2000, was that the court erred in not permitting Chief White to give his opinion evidence to the jury, which opinion he arrived at after reviewing Officers Mettin’s and Getter’s post-accident reports.

To begin with, Chief White was never listed as an expert witness and no expert report was ever submitted to plaintiffs prior to or during trial. The chief could testify as to his knowledge of what was going on during the pursuit of two of his officers. However, the record reveals that at best, in the beginning of the pursuit, Chief White was on foot looking for the 14-year-old runaway. Later, he was receiving very sketchy information over the police radio concerning the pursuit. After the fact, he reviewed the self-serving post-accident reports of the two pursuing officers.

The court did permit Chief White to testify concerning his authorship in 1990 of the Doylestown Township police pursuit policy.

The township also produced a retired captain from nearby Bensalem Township Police Department, who had been identified as an expert witness and whose expert witness report had been provided to plaintiffs prior to trial. He therefore gave opinion testimony similar to the defense proffer as to Chief White.

The trial court properly raised the defense attempt to have Chief White give expert opinion testimony in this case. This same reasoning applies to the court’s refusal to allow Lieutenant Dunlap and Sergeant Sutton to testify as expert witnesses in this case. (N.T., 2/3/2000, pp. 85, 88, 91, 92,93, 94, 95, 97, 100, 101, 102, 107.)

The defense’s next major argument concerns their motion for judgment n.o.v.

The issue in this case is whether Officers Mettin (radio) and Getter (driver) were negligent in this police pursuit chase, and whether that negligence was a substantial factor in bringing about the harm to the plaintiffs. The Motor Vehicle Code in section 3105 addresses such pursuits by police officers and provides in pertinent part:

“(a) General rule. — The driver of an emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm may exercise the privileges set forth in this section, but subject to the conditions stated in this section.
“(b) Exercise of special privileges. — The driver of an emergency vehicle may: ...
“(2) Proceed past a red signal indication or stop sign, but only after slowing down as may be necessary for safe operation, except as provided in subsection (d).
“(3) Exceed the maximum speed limits so long as the driver does not endanger life or property, except as provided in subsection (d).
“(4) Disregard regulations governing direction of movement or turning in specified directions.
“(c) Audible and visual signals required. — The privileges granted in this section to an emergency vehicle shall apply only when the vehicle is making use of an audible signal and visual signals meeting the requirements and standards set forth in regulations adopted by the department, except that an emergency vehicle operated as a police vehicle need not be equipped with or display the visual signals....
“(e) Exercise of care. — This section does not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons.”

At trial, the plaintiffs called Officer Mettin. He testified he and Officer Getter were dispatched to the vicinity of Route 611 and Almshouse Road in Doylestown Township, Bucks County, Pennsylvania to be on the lookout for a stolen van driven by a 14-year-old walkaway from a mental health facility in New Britain, Bucks County, Pennsylvania. Getter was driving the marked, fully equipped police car and Mettin was in the passenger seat handling radio transmissions. They spotted the van at 3:27 p.m. at said intersection, turned around and got behind it. Both vehicles were then going south on Route 611, a four-lane highway at the time.

The van was in the southbound shoulder lane with the police car behind it. As soon as Getter activated his overhead lights and the siren, the van sped up and proceeded into the southbound passing lane. The posted speecl limit was 45 miles per hour. The van accelerated to speeds in excess of 60 miles per hour. Traffic was heavy.

Halfway between Almshouse Road and Bristol Road, the van moved over into the northbound traffic lanes to pass southbound traffic in front of him. As they approached Bristol Road, the traffic lights were red for them. However, the van, staying in the northbound lanes, ran the red light, passing stopped southbound traffic. At that time, northbound traffic on Route 611 at Bristol Road was also stopped.

Further south, as they approached a red traffic light on Route 611 at the Jomac plant, the van again went into the northbound lanes, through the red light to get around stopped southbound traffic in front of him at that traffic light. When they approached the busy intersection of Route 611 and Street Road, the van went over to the right shoulder to avoid southbound traffic, turned right onto Street Road with the police car right behind.

Both vehicles then proceeded west on Street Road at speeds of 70 miles per hour in a 35 mile per hour zone, and after two miles, the van turned left on Folly Road, a two lane country road. Again, their speeds were 70 miles per hour in a 35 mile per hour zone. Both vehicles passed out of Doylestown Township and entered Warrington Township. They next approached County Line Road where Folly Road had a stop sign. This was a T-intersection but Mettin did not know that. The van ran the stop sign with the police 30 or 40 yards behind, turning á wide right onto County Line Road and entering into the wrong lane or the eastbound lane. County Line Road is a two-lane road at that point.

Other testimony in the case established that plaintiffs were passengers in a car operated by one Eric Wilburn. All were returning home after work in the aforesaid eastbound lane, where Wilburn was safely operating his vehicle. However, when suddenly confronted with the van, Wilburn had to swerve to the right to avoid a head-on collision with the van. Unfortunately, the van hit a telephone pole to Wilburn’s right, causing plaintiffs’ severe injuries.

At the time of this pursuit, Chief White’s pursuit policy, originated by him in 1990, and adopted by Doylestown Township, provided that this chase be radio monitored by the sergeant on duty, the lieutenant on duty and, if available, the police chief. Any one of these three officers had the right to call off the chase. The officers themselves had the right to call off the chase. If they did, they would suffer no adverse consequences.

However, the radio log (exhibit P-18) revealed that during the pursuit, Mettin never radioed that the van:

(1) was exceeding 60 miles per hour on Route 611;

(2) was going 70 miles per hour on Folly Road;

(3) twice went into the northbound lanes of Route 611;

(4) ran the red light at Route 611 and Bristol Road;

(5) went onto the right shoulder of Route 611 as it approached Street Road.

During the pursuit, Getter and Mettin knew the age, identity and address of the driver of the van. They knew that he was court committed to the Delaware Valley Mental Health Facility in New Britain, Bucks County, Pennsylvania and that the facility had a file on the driver, Bowers.

Mettin admitted in his testimony that they could have arrested Bowers later, and they knew he was headed for his home in the City of Easton, Pennsylvania.

Plaintiffs produced Dr. Randall McCauley, professor of criminology at Indiana University, holding a Ph.D. in criminal justice administration. He has extensive experience in police policies and practices involving police vehicular pursuits, and has formulated and drafted vehicular pursuit policies. He opined that P-13 (authored by Chief White) was a good policy in conformance with the standards in policy, but that Getter and Mettin violated that policy during this pursuit. The officers knew they were pursuing an unskilled and immature driver, who was driving a stolen van that he was not familiar with in heavy traffic. They knew the driver was also exceeding the speed limit, sometimes going into the wrong lanes and violating traffic signals, thereby putting people at risk. Dr. McCauley further opined that Chief White’s pursuit policy was to limit pursuits unless you have very serious circumstances. He did not consider a stolen vehicle, operated by a known suspect, who could be apprehended later, as a very serious circumstance. He concluded that this was an unreasonable pursuit. His opinion was that police high-speed chases are dangerous police procedures; and that in this case, this pursuit created an unreasonable risk of danger to others using the highway.

He also testified that he was familiar with section 3105 of the Motor Vehicle Code which granted certain privileges to police officers when they were using their lights and sirens while engaged in emergency operations, while also requiring that the officers drive with due regard for the safety of all persons. .

It was his opinion that these officers were operating without due regard for the safety of others during their pursuit and that this pursuit should have been terminated by the officers prior to the intersection of Folly and County Line Roads.

Even the defense expert, retired Captain Ronald Traenkle, under cross-examination, twice conceded that the way Bowers was driving presented a clear and present danger to users of the highway. (N.T., 2/3/2000, pp. 151, 154.)

There can be no question but that the testimony set forth above clearly presented a case to be considered by the jury. The court properly refused defendants’ motions for directed verdict at the conclusion of plaintiffs’ case, and at the close of all of the evidence. See Dorn v. Stanhope Steel Inc., 368 Pa. Super. 557, 534 A.2d 798 (1987) and Correll v. Werner, 293 Pa. Super. 88, 437 A.2d 1004 (1981).

Likewise, defendants’ present motions for judgment n.o.v. are devoid of merit.

These actions were brought against Police Officer Getter, who was employed by Doylestown Township, and who was acting within the course and scope of his employment and duties on August 10, 1994 in mid-aftemoon. Sections 8541, 8542 and 8546 of the Political Subdivision Tort Claims Act, 42 Pa.C.S., are relevant to this case. Likewise, so is section 3105 of the Pennsylvania Vehicle Code, 75 Pa.C.S. relevant to this case.

Section 8542, supra, requires plaintiffs to establish by a fair preponderance of the evidence that Getter was negligent in the manner in which he conducted the pursuit in this case, and that his negligence was a substantial factor in causing the harm to the plaintiffs and also that at the time and place he was acting within the scope of his office and duties.

Section 3105, supra, requires plaintiffs to establish that Getter, during the pursuit, was not driving with due regard for the safety of all persons.

The jury was obviously satisfied that plaintiffs sustained their burden of proof as to the above.

The Pennsylvania Commonwealth Court very recently visited this area of the civil law concerning police pursuits in Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa. Commw. 2000). The court on March 15, 2000 decided therein that boroughs could be held liable under the motor vehicle exception of the Political Subdivision Tort Claims Act for injuries caused to an innocent motorist injured when suspect’s vehicle struck his car during a police chase, by actions of boroughs’ police officers in negligently maintaining a high-speed chase of a criminal suspect through residential neighborhoods and commercial districts, addressing 42 Pa.C.S. §8542(b)(l). In so deciding, the Commonwealth Court relied upon the Pennsylvania Supreme Court decision in Jones v. Chieffo, 549 Pa. 46, 700 A.2d 417 (1997), wherein it was stated that a jury in a proper case must decide whether the pursuing officer’s negligence was a substantial factor in causing plaintiff’s injuries, and also whether the fleeing suspect’s actions were a superceding cause.

The Superior Court, on February 23, 2000, had occasion in Gunn v. Grossman, 748 A.2d 1235, 1238 (Pa. Super. 2000) to restate the law concerning trial courts’ rulings on requests for judgment notwithstanding the verdict in the following language:

“In reviewing a motion for a judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom and any conflict in the evidence must be resolved in his favor. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further[,j a judge’s appraisement of the evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations. There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure. Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). Accord Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 758-64, 691 A.2d 950, 955-57 (1997) (en banc), appeal denied, 550 Pa. 684, 704 A.2d 638 (1997). In making the determination of whether judgment n.o.v. is appropriate, our scope of review is plenary as it is with any review of questions of law. Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997). Boutte v. Seitchik, 719 A.2d 319, 322-23 (Pa. Super. 1998).

“Rohm and Haas Co. v. Continental Casualty Co., 732 A.2d 1236,1247-48 (Pa. Super. 1999). A judgment n.o.v. should be entered only in a clear case. Nogowski v. Alemo-Hammad, supra. ” Gunn v. Grossman, 748 A.2d 1235, 1238-39 (Pa. Super. 2000).

In this case, this court’s refusal to grant judgment notwithstanding the verdicts is proper. This was clearly for the jury to decide.

Defendants in their post-trial motions and their briefs also raise several other issues. They argue that the court erred in allowing Dr. McCauley to testify as plaintiffs expert witness on police pursuits. Our appellate courts have decided the trial judges have broad discretion in allowing expert testimony in trials. See Walsh v. Kubiak, 443 Pa. Super. 284, 661 A.2d 416 (1995). Dr. McCauley was qualified in the mind of this judge; therefore, the weight of his testimony was for the jury. Also, the allowance by the court on voir dire for Dr. McCauley to answer a question as to whether or not he was ever hired by Bensalem Township as an expert witness was not error by the court.

Next, it is argued that the court erred in allowing plaintiffs’ witness Officer Connie A. Johnson, who arrived at the scene of the accident, to read to the jury the statement she took from Eric Wilburn. (N.T., 2/1/2000, p. 38, 1. 18 to p. 39,1. 5.) This was never objected to by the defense at the time. Later, during cross-examination, they objected to a question in another portion of Officer Johnson’s report, concerning Wilburn’s driving. (N.T., 2/1/2000, pp. 66, 67.) This also addressed the earlier unobjected to testimony by Officer Johnson. (N.T., 2/1/ 2000, pp. 38,39.) If this was error, it was certainly harmless error.

Moving on, defense argues the court erred in overruling the defense objection to the following question by plaintiffs’ counsel during their direct examination of Officer Mettin:

“Q. But you never saw the Plymouth coming eastbound at the time the van made its right turn?
“A. No.”

This was a proper question. There is no merit to this argument. (N.T., 2/1/2000, p. 109.)

The defense at trial objected to showing the jury a video of the pursuit route taken years after the accident at plaintiffs’ expense. They objected to commentary of the video operator and to the changes made on Route 611 since 1994. In response to these objections, the court suggested that Officer Mettin give all commentary during the video and also point out to the jury the various changes in Route 611 over the years.

Everyone agreed to this suggestion except the township attorney, who then argued that this procedure would be “prejudicial.” That objection and this present argument are captious.

Next, defendants argue that the trial court made erroneous rulings during the defense testimony of Officer Daniel Getter and, therefore, they should get a new trial. On pages 21 and 22 of their brief, they argue this occurred on cross-examination of Getter. In order to put their arguments in perspective, it is necessary to refer to Getter’s defense testimony on direct examination.

Getter testified that on the day in question, he and Officer Mettin arrived at work early for their 3 p.m. to 11 p.m. shift. At headquarters, by monitoring the police radio, they learned that a van had been stolen in New Britain, Bucks County, Pennsylvania, and a subject escaped from a mental health facility near the location of the van theft by going through a second-floor window. Getter and Mettin then surmised that that subject stole the van. (N.T., 2/2/2000, pp. 172, 174.)

He further testified that they heard Chief Sempowski of New Britain “continually” relaying information over the radio, including a description of the subject (Bowers) and that he armed himself with a screwdriver. (N.T., 2/2/2000, p. 176.) After hearing that, they left headquarters in the one remaining police car and proceeded to Route 611 and Almshouse Road in their township. While there, they spotted the van, and the driver matched the previous description. A radio call confirmed the license plate as the stolen van.

In response to a question from the trial judge, Getter testified that Chief Sempowski stated over the radio that Bowers was court committed and there were charges pending against him, which meant to Getter that Bowers was either a danger to himself or someone else. (N.T., 2/ 2/2000, p. 184,1. 2.)

On page 188 of the Notes of Testimony of February 2, 2000, Getter testified that Bowers armed himself with a screwdriver and stole the van.

In light of the above, the court correctly allowed cross-examination of Getter concerning information in Chief Sempowski’s police report that Bowers walked up to a gentleman and asked to “borrow” a screwdriver. (N.T., 2/3/2000, p. 5.)

Defense also argues the trial court erred in sustaining an objection on direct examination to a question that Delaware Valley Mental Health employees were instructed to stay away from Bowers. The exact testimony is as follows:

“The staff of the facility advised that they were not to approach him (Bowers) because they believed that he—
“Objection...
“Objection ...
“The Court: Objection sustained on any speculation as to what the staff may or may not have believed.
“Mr. Gonzales: Okay.” (N.T., 2/3/2000, p. 205.)

This was a correct ruling by the court.

Again, it argued that the court erred in not permitting Getter, on redirect, to explain to the jury what the Edison Juvenile Detention Facility was and why Bowers was sent there. The Notes of Testimony show the following:

“Q. Now, Jeremy Bowers, as we know, ultimately was sent to, I think you testified to the Edison Detention Facility; is that correct?
“A. Yes,...
“Q. Do you know he was sent there?
“Mr. Senoyuit: Objection.
“The Court: Sustained.” (N.T., 2/3/2000, p. 55.)

Again, this was a proper ruling. The essence of the case is what Getter and Mettin knew during the police pursuit, not what they found out later, or what happened later.

In concluding this portion of the defense argument, they allude to what plaintiffs’ counsel stated in his closing argument. Closing arguments were not recorded. This is improper argument.

The defense argues the court incorrectly charged the jury that plaintiffs do not have to prove physical contact between the police vehicle and plaintiffs’ vehicle. This was a correct statement of the law. See Jones v. Chieffo, supra.

It is argued that the court erred in discussing the township’s pursuit policy with the jury. Again, when this is read in the context of the entire charge, it is not erroneous. In making this argument, defense counsel again tried to incorporate into their brief, portions of the unrecorded closing arguments. Again, this is not proper.

They complain about a portion of the court’s charge on damages. This is out of context and devoid of merit.

Next, an argument is made that the court erred in allowing exhibits to go out to the jury. This was within the court’s discretion and did not constitute error. See Kearns v. Clark, 343 Pa. Super. 30, 493 A.2d 1358 (1985).

Their last argument is on the subject of the verdicts and they argue for remittitur or a new trial.

Originally, the jury verdict for Dorsey Williams was $1,679,000 and $542,000 for Arnold Tolbert, or total verdicts in the amount of $2,221,000. To comply with the Political Subdivision Tort Claims Act, their verdicts were molded to $500,000 in the aggregate, thereby reducing Dorsey Williams’ verdict to $378,000 and Tolbert’s verdict to $122,000.

Thereafter, a petition for delay damages in accordance with Pennsylvania Rule of Civil Procedure 238 was filed, which was responded to by defendants. On February 28, 2000, this court, following Woods v. PennDOT, 531 Pa. 295, 612 A.2d 970 (1992), computed delay damages on the original verdicts at atotal of $516,184.73, which when added to the aforesaid $500,000 was molded by this court to $1,016,184.73.

While defendants, in their supplemental post-trial motions, disputed the calculations as to the court order of February 28, 2000 on delay damages, they failed to address this issue in their subsequent brief or at oral argument.

It would, therefore, seem to this court that since the verdicts were molded from $2,221,000 to the $500,000. aggregate to comply with the Political Subdivision Tort Claims Act, that the defendants’ present argument as to the excessiveness of the verdicts has become moot.

Presently, the excessive argument would seem to only relate to the court’s calculation of delay damages. And since defendants did not set forth in their brief any argument against the delay damages order of this court of February 28,2000, that would constitute a waiver of this issue.

However, in the exercise of extreme caution by this court in the event of an appeal, we will nevertheless address the remittitur question.

As a result of this accident Dorsey Williams and Arnold Tolbert both suffered severe, extensive and permanent injuries. Dorsey Williams’ injuries included a comminuted fracture on the distal humerus, comminuted fracture of the proximal shaft of the ulna, comminuted fracture of the proximal shaft of the humerus, nondisplaced fracture of the proximal shaft midshaft and distal shaft of the right tibia, displaced fracture of the right femur, laceration of the spleen and liver requiring surgical removal of spleen, open and mildly displaced right parsymphyseal mandible fracture, dental alveolar fracture, parasagital fracture of the hard palate on the right, bilateral subconclylar fracture of the mandible with bilateral temporal joint dislocation, comminuted fracture of the right maxillary sinus, zygomatic-maxillary component and fracture of the posterior wall extending to the pterygoid plate, fracture of the right postero-lateral orbit, fracture of the right zygomatic arch, fracture of the left maxilla. Mr. Williams’ facial injuries required his jaw to be wired shut for a considerable length of time. He was hospitalized for a few weeks time immediately following the accident and on several occasions thereafter. As a direct result of his injuries, Mr. Williams has undergone extensive and numerous surgical procedures. He has been left with extensive and unsightly scars as a result of his injuries and surgical treatment. At the time of trial, Mr. Williams presented the expert medical testimony of Dr. Albert Weiss, a board certified orthopedic surgeon, and Dr. Michael Loftus, a board certified oral and maxillofacial surgeon to discuss his injuries and medical treatment. Both doctors opined that all of Mr. Williams’ injuries were the result of the August 10,1994 accident. The defendants did not present any medical testimony relative to the injuries suffered by Mr. Williams in the August 10,1994 accident or any of the medical treatment, which he has received as a result of his injuries.

Arnold Tolbert’s injuries included a right zygomatic arch fracture, right mandibular fracture, comminuted maxillary sinus fracture, soft tissue injury to the right thigh including deep thigh contusion, and a serious postoperative infection. Mr. Tolbert was hospitalized at the Medical College Hospital and University of Pennsylvania Hospital following this accident. At the University of Pennsylvania Hospital, Mr. Tolbert underwent extensive surgery to reconstruct the numerous facial fractures he received in this accident. Mr. Tolbert’s jaw was wired shut for an extended period of time. Following his discharge, Mr. Tolbert was readmitted to University of Pennsylvania Hospital for approximately one week in connection with the treatment of a serious postoperative infection. This accident has left Mr. Tolbert with facial scars. During the course of trial, Dr. Scott Bartlett, a board certified plastic and reconstructive surgeon, testified on behalf of Mr. Tolbert regarding his injuries and medical treatment. The defendants offered no medical testimony of any nature relative to any aspect of Mr. Tolbert’s injuries or his medical treatment or care.

In discussing remittitur, the Superior Court in Doe v. Raezer, 444 Pa. Super. 334, 340, 664 A.2d 102, 105 (1995), stated:

“Normally, the determination of the amount of damages that a person is to be awarded for pain and suffering, both past and future, is primarily a jury question.... Judicial reduction of a jury award for compensatory damages is appropriate only when the award is plainly excessive and exorbitant in a particular case.... The trial court may grant a request for remittitur only when a verdict that is supported by the evidence suggests that the jury was guided by partiality, prejudice, mistake or corruption. ...
“A remittitur should fix the highest amount any jury could properly award, give due weight to all the evidence offered.”

In my judgment, the verdicts in this case fall within the uncertain limits of fair and reasonable. I do not consider them excessive or exorbitant. These verdicts do not shock my sense of justice. I do not believe this jury was influenced by partiality, prejudice, mistake or corruption. Both of these plaintiffs were seriously injured. They underwent substantial medical attention over long periods of time. They endured great pain and suffering, some of which may continue into the future. They have not been able to be gainfully employed since the accident. None of their medical testimony was challenged at trial.

In light of all of the above, this court enters the following:

ORDER

And now, September 7, 2000, after oral argument, review of the extensive record, and the respective briefs of both counsel, defendants’ post-trial motions are denied, overruled and refused.


source: Caselaw Access Project

author: WALLACH MILLER, J.,

license: Public Domain

text:
    Webb v. Roadway Express Inc.

      C.P. of Monroe County,
    no. 1084 Civil 1997.

      Michael Mancuso, for plaintiff.

      Ann E. Rhoads, for defendants Roadway, Slavin and Smedley.

      Christopher W Gittinger, for defendants East Coast Janitorial and Miller.
    July 26, 2000
   WALLACH MILLER, J.,

Presently before the court are two motions for summary judgment that have been filed: one collectively by Roadway Express, Mark Slavin and Thomas Smedley, Roadway defendants, and one collectively by East Coast Janitorial and Carrie Miller, East Coast defendants. Both motions arise in the context of plaintiff’s suit for malicious prosecution, and a review of the record reveals the following facts and procedural history.

Plaintiff was employed by East Coast Janitorial to perform janitorial duties as a dock worker at a facility owned and operated by Roadway Express. At all relevant times, Mark Slavin and Thomas Smedley were managers at the Roadway facility, and Carrie Miller was plaintiff’s supervisor at East Coast Janitorial. At approximately 7 a.m. on June 29, 1996, Slavin found plaintiff using a telephone in Miller’s office at the Roadway facility, and he noticed a deflated air bag lying on the floor within a few feet of plaintiff. An air bag is an inflated device that is approximately three feet long and is used by transportation companies to secure packages against movement. When the air bags become punctured or ripped, they are discarded from the Roadway Express trucks to be picked up and disposed of by dock workers such as plaintiff. The dock workers often use the bags as impromptu trash bags, filling them with debris from the docking area before placing the bags in the appropriate waste disposal container. Plaintiff claims that he was using the bag to collect debris when he remembered that he needed to make a telephone call, so he brought the bag into the office to use the telephone on Miller’s desk.

When Slavin saw the air bag next to plaintiff, he also saw something inside of the bag and upon removing the object Slavin discovered that the item was a parcel of dresses that was being transported by Roadway Express. Slavin held up the parcel and asked plaintiff: “What is this?” Plaintiff responded: “That’s not mine.” Slavin brought the air bag, the parcel of dresses, and plaintiff to the office of the manager for the Roadway Express facility, where Slavin informed Smedley about what Slavin had observed, and accused plaintiff of attempting to steal the dresses. Slavin called the police to report the incident, and a little while later Pocono Township police officer Horace Storm arrived at the Roadway Express facility to perform an investigation. Officer Storm took statements from Slavin and Smedley, and later spoke to Miller by telephone. Slavin, Smedley, and Miller all accused plaintiff of stealing the dresses, whereupon Officer Storm informed plaintiff that charges of theft would be filed against plaintiff. Plaintiff was subsequently ordered to remain off of the Roadway Express property, and he was immediately terminated from his employment with East Coast Janitorial.

Miller provided a notarized statement to Officer Storm on July 2, 1996, which asserted that plaintiff had been involved in a theft situation at the Roadway Express facility on the day in question, and that one of the other East Coast Janitorial employees had observed plaintiff breaking into Miller’s office that day approximately one half hour before Slavin found plaintiff in Miller’s office with the air bag. On July 2, 1996, Officer Storm filed criminal charges against plaintiff for theft and receiving stolen property. On July 18, 1996, another person employed by East Coast Janitorial as a dock worker at the Roadway Express facility, one James Finnegan, gave a notarized statement concerning plaintiff’s actions. Finnegan’s statement asserts that at 6:45 a.m. on June 26,1996, he observed plaintiff standing on top of a barrel outside Miller’s office and that plaintiff used the barrel to break into Miller’s office by climbing over the wall. Finnegan’s statement relates that plaintiff next unlocked the office’s door from the inside, and that plaintiff was covered in ink when plaintiff walked through the office door. On the strength of the statements from Miller and Finnegan, on July 26, 1996, Officer Storm filed another criminal charge against plaintiff for criminal trespass.

Following a preliminary hearing before a district justice, all of the charges against plaintiff were bound over to the court of common pleas, where plaintiff pled not guilty to each of the charges. During plaintiff’s criminal trial, at the close of the Commonwealth’s evidence, the trial court denied plaintiff’s motion for acquittal. As part of the plaintiff’s defense evidence, Finnegan took the stand on behalf of plaintiff and recanted the facts alleged in his notarized statement of July 18, 1996. Finnegan further testified that he did not observe the conduct alleged, and that Miller had falsely prepared the statement for him. Finnegan further testified that Miller had coerced him into signing the false statement by threatening to fire Finnegan if he did not sign the statement, and by promising him the reward of a better paying job with Roadway Express if he did sign the statement. The jury acquitted plaintiff of all criminal charges stemming from the June 26, 1996 incident.

On February 19,1997, plaintiff commenced the instant civil action, alleging claims for defamation, malicious prosecution, false imprisonment, wrongful discharge, and civil conspiracy against the Roadway defendants and the East Coast defendants. Following defendants’ preliminary objections, plaintiff filed an amended complaint. Defendants again filed preliminary objections in the nature of a demurrer, and on November 27,1997, this court sustained the objections and dismissed plaintiff’s case with prejudice.

Plaintiff appealed the November 27, 1997 order, and the Superior Court affirmed this court’s dismissal of plaintiff’s counts for defamation, false imprisonment, wrongful discharge, and civil conspiracy, but reversed the dismissal of the malicious prosecution count, holding that plaintiff’s pleadings were sufficient at that stage to defeat defendants’ demurrer. The Superior Court noted that this court’s dismissal of the malicious prosecution count was premised on a determination that the defendants did not institute the criminal proceedings against plaintiff, but rather merely reported the incident to Officer Storm. Citing Hess v. County of Lancaster, 100 Pa. Commw. 316, 514 A.2d 681 (1986), the Superior Court distinguished between a situation where a person gives accusatory information that he honestly believes to be correct, from that where a person gives information to the authorities that he knows to be false. The Superior Court held that when a person knowingly gives false accusatory information to the police, that person is deemed to have initiated the proceedings against the accused, because even if the accuser takes no further action, the police officer’s ability to intelligently and independently exercise discretion is made impossible. The Superior Court pointed to the pleadings in plaintiff’s amended complaint averring that Slavin, Smedley, and Miller knew that the statements to Officer Storm were false, and the court held that the pleadings were sufficient to overcome defendants’ demurrer that they did not institute the criminal proceedings against plaintiff.

Following the Superior Court’s remand, the parties engaged in discovery including the sworn depositions of plaintiff and Finnegan. In his deposition taken on December 3, 1999, Finnegan states that he did not see plaintiff climb over a barrel into Miller’s office, and that he did not see plaintiff covered with ink shortly thereafter. Finnegan asserts that when Miller first asked him to support Miller’s allegedly fabricated story concerning plaintiff’s actions on June 26, 1996, he vehemently objected, and told Miller that he thought that it was wrong because it was not true, and that he had not seen the things that Miller wanted him to allege. Finnegan also relates that Miller hates black people, and that Miller was motivated to fabricate evidence against plaintiff, who is an African-American, because of Miller’s racial bias. Finnegan quotes Miller as telling him that he “hates f***ing niggers,” and that Miller told Finnegan that he was going to use plaintiff as a scapegoat to discourage theft from the Roadway Express facility. Finnegan asserts that he did not sign his notarized statement in front of a notary, and that he never witnessed it being notarized. Finnegan admits, however, that he never told Slavin or Smedley that his statement concerning plaintiff was false.

In his deposition taken on October 22, 1999, plaintiff confirms that Slavin found him in Miller’s office with the air bag on the morning of June 26, 1996, but he denies breaking into Miller’s office, and denies stealing the parcel of dresses. Plaintiff asserts that the publicity and notoriety created by his criminal trial for the events on June 26,1996 have caused great damage to his reputation, and has interfered with his business relations and his marriage. Plaintiff states that he does not know that Smedley had a reason to think that another person other than plaintiff took the dresses. Plaintiff also states his belief that the aggressive stance by Smedley and Slavin against the theft was motivated by a desire to discourage theft in general at the Roadway Express facility, and not by any personal animosity against him.

On April 11, 2000, the Roadway defendants filed a motion for summary judgment, and on May 5,2000, the East Coast defendants also filed a motion for summary judgment. This court heard oral argument on both of the motions on June 5, 2000, and following a review of the parties’ briefs and the relevant Pennsylvania law, we are now ready to dispose of this matter.

The standards of review for summary judgment are well established in Pennsylvania law. Pa.R.C.P. 1035.2(2) provides that a party may move for summary judgment:

“[I]f, after the completion of discovery relevant to the motion... an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

When deciding upon a motion for summary judgment, the record must be viewed in a light most favorable to the non-moving party and summary judgment may only be entered in cases where the right is clear and free from doubt. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). A court determining a motion for summary judgment is required to accept as true all well-pleaded facts in the non-moving party’s pleadings, and must give the non-moving party the benefit of all reasonable inferences deducible therefrom. Spirer v. Freeland & Kronz, 434 Pa. Super. 341, 344, 643 A.2d 673, 675 (1994), allocatur denied, 543 Pa. 730, 673 A.2d 336 (1996). A party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Drapeau v. Joy Technologies Inc., 447 Pa. Super. 560, 564, 670 A.2d 165, 167 (1996), allocatur denied, 546 Pa. 644, 683 A.2d 883 (1996). To defeat a motion for summary judgment, under Pa.R.C.P. 1035.3(a)(2) the opposing party:

“[M]ay not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying . . . evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa.R.C.P. 1035.3(a)(2).

Furthermore, the Pennsylvania Rules of Civil Procedure specifically limit what may be considered as evidence when determining whether a motion for summary judgment should be granted. Only evidence that is “in the record” may be considered. Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602,606 (Pa. Super. 1997). Pa.R.C.P. 1035.1 defines the record for purposes of summary judgment as including:

“(1) pleadings;
“(2) depositions, answers to interrogatories, admissions and affidavits, and;
“(3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories.” Pa.R.C.P. 1035.1.

It is well established in Pennsylvania law that litigant’s briefs, and any attachments made thereto, are not part of the official record, and thus may not be considered as evidence in the record by a court determining a motion for summary judgment. Scopel, 698 A.2d at 606; Wheeler v. Johns-Manville Corp., 342 Pa. Super. 473, 477, 493 A.2d 120, 122 (1985); Irrera v. SEPTA, 231 Pa. Super. 508, 514, 331 A.2d 705, 707 (1974); P.P.&J. Inc. v. Leupold, 30 D.&C.4th 410, 416 (1996). Furthermore, before depositions may be considered as evidence for purposes of summary judgment, they must be properly filed and made a part of the official record. Scopel, 698 A.2d at 604.

Under Scopel, Wheeler, and Irrera, supra, and Pa.R.C.P. 1035.1, in the instant case the only items of evidence that may properly be considered by this court are the pleadings contained in plaintiff’s amended complaint, the attachments to plaintiff’s amended complaint, the sworn depositions of plaintiff and James Finnegan, and the exhibits attached to the depositions of plaintiff and James Finnegan that were made a part of the record by reference during the taking of the two depositions. The court may not consider either the appendix to plaintiff’s brief I or the appendix to plaintiff’s brief II, nor may the court consider exhibits 1 through 6 as attached to the appendix to brief of defendants Roadway Express Inc., Mark Slavin and Thomas Smedley in support of their motion for summary judgment. Taking all well pleaded facts in the record in the light most favorable to plaintiff, as we are constrained to do when determining a motion for summary judgment, we conclude that the Roadway defendants’ motion for summary judgment should be granted, and that the East Coast defendants’ motion for summary judgment must be denied.

The Pennsylvania courts have adopted Restatement (Second) of Torts §653 for the tort of malicious prosecution, and have held that this tort requires a plaintiff to prove three elements: (1) defendant instituted proceedings against plaintiff without probable cause; (2) with malice, and; (3) the proceedings were terminated in plaintiff’s favor. Strickland v. University of Scranton, 700 A.2d 979, 984 (Pa. Super. 1997); Cosmas v. Bloomingdales Brothers Inc., 442 Pa. Super. 476, 481, 660 A.2d 83, 85 (1995); Amicone v. Shoaf, 423 Pa. Super. 281, 620 A.2d 1222 (1993); Cibrone v. Stover, 351 Pa. Super. 250,505 A.2d 625,627 (1986); Jaindl v. Mohr, 432 Pa. Super. 220, 637 A.2d 1353, 1357 (1994). In the instant case, it is undisputed that the criminal proceedings against plaintiff for the events on June 26,1996 were terminated in plaintiff’s favor, with a jury acquitting plaintiff of all charges. Thus our inquiry is focused upon whether or not the defendants instituted the proceedings against plaintiff without probable cause.

For the Roadway defendants, our inquiry proceeds no further than the initiation element of the malicious prosecution analysis, because we hold that the evidence is insufficient as a matter of law to establish that the Roadway defendants instituted the proceedings against plaintiff. As the Superior Court held in its opinion underlying this remanded proceeding, the principle embodied in the initiation requirement for malicious prosecution allows people to honestly report suspected criminal activity without fear of reprisal, so long as it is left entirely up to the official’s independent discretion whether or not further investigation or charges against the accused are warranted. See also, Hess, 100 Pa. Commw. at 321, 514 A.2d at 683, quoting Restatement (Second) of Torts §653, comment g. Accordingly, our determination of the initiated element in the instant case requires a determination of whether the defendants merely provided honest information to Officer Storm, or pressured the officer to initiate charges against plaintiff, thereby making it impossible for Officer Storm to exercise an intelligent and independent discretion.

Even taking the facts in the record in the light most favorable to plaintiff, there is no evidence that Slavin or Smedley ever knew of the alleged efforts by Miller to fabricate evidence against plaintiff, or that Slavin and Smedley had any reason to know that Finnegan’s notarized statement may have been the product of Miller’s coercive threats. The record only indicates that Slavin and Smedley merely reported to Officer Storm what Slavin had observed on June 26, 1996, and then let the officer decide independently how to proceed against plaintiff. Finnegan relates that Slavin was present when Finnegan finally signed the statement allegedly prepared for Finnegan by Miller, yet Finnegan states that Slavin did not know the statement was false at that time. Although Finnegan claims that he overheard Slavin agreeing with Miller that they would use plaintiff as a scapegoat to discourage theft, there is no evidence that Slavin or Smedley ever took any action to pressure Officer Storm or influence Officer Storm’s discretion. Finally, even if Slavin and Smedley approved of having Finnegan sign the allegedly false statement, there is no evidence that they had any reason to doubt the truth of what Miller had told them concerning plaintiff’s conduct.

Under Hess, merely giving an official information or even an accusation of criminal misconduct is not enough to give rise to the tort of malicious prosecution, so long as the discretion to proceed against the accused is left entirely up to the official. Id., 100 Pa. Commw. at 321, 514 A.2d at 683. This aptly describes the conduct of Slavin and Smedley concerning the events on June 26, 1996. We hold that as a matter of law, the actions of Slavin and Smedley are insufficient to constitute an institution of the criminal proceedings against plaintiff, and thus we grant summary judgment for Slavin and Smedley, and dismiss them from this case. Because we hold that an action for malicious prosecution may not be maintained against Slavin or Smedley, we must also grant summary judgment for Roadway Express Inc. Plaintiff’s theory of liability against Roadway Express Inc. is premised on the assertion that Slavin and Smedley are agents of Roadway Express, thus plaintiff asserts that Roadway Express is liable as the principal for all actions taken by Slavin and Smedley in the performance of their duties as agents for Roadway Express. Plaintiff’s claim against Roadway Express is dependent upon a finding of tortious conduct by its agents, so our holding that the conduct of Slavin and Smedley may not give rise to an action for malicious prosecution also negates plaintiff’s claim against Roadway Express Inc. Accordingly, we grant summary judgment for Roadway Express Inc.

Conversely, for the East Coast defendants, there is enough evidence in the record indicating that Miller knowingly fabricated accusatory evidence against plaintiff, and that Miller pushed this allegedly falsified evidence to Officer Storm in an attempt to ensure that criminal proceedings were undertaken against plaintiff. In his deposition, Finnegan states that despite his repeated objections, Miller insisted on using threats to coerce Finnegan to help produce fabricated accusatory evidence against plaintiff, and that Miller provided this allegedly falsified information to Officer Storm, Slavin, and Smedley. In Hess, our Superior Court explained that when a person knowingly gives false accusatory information to an official, “an intelligent exercise of the officer’s discretion becomes impossible, and a prosecution based upon it is procured by the person giving the false information.” Id., 100 Pa. Commw. at 321, 514 A.2d at 683, quoting Restatement (Second) of Torts §653, comment g. We hold that the evidence in the record, when taken in the light most favorable to plaintiff, is sufficient to establish that Miller initiated the criminal proceedings against plaintiff, by virtue of having knowingly provided false accusatory information to Officer Storm.

In their brief in support of their motion for summary judgment, the East Coast defendants point to the existence of probable cause as an absolute defense to an action for malicious prosecution, and they assert that Miller had probable cause to initiate the criminal proceedings against plaintiff. The East Coast defendants are correct that the existence of probable cause constitutes an absolute defense to a claim for malicious prosecution. Cosmos, 442 Pa. Super, at 482, 660 A.2d at 86. In the context of the tort of malicious prosecution, the Pennsylvania courts have defined probable cause as “a reasonable ground of suspicion supported by circumstances sufficient to warrant an ordinary prudent man in the same situation in believing that the party is guilty of the offense.” Cosmos, 442 Pa. Super, at 482, 660 A.2d at 86; Amicone, 423 Pa. Super, at 286, 620 A.2d at 1224; Strickland, 700 A.2d at 984. (citations omitted) Further, “[t]he existence of probable cause is usually a question of law for the court to decide, but the issue may be submitted to the jury when the facts material to the issue of probable cause are in controversy.” Amicone, 423 Pa. Super, at 286, 620 A.2d at 1224. (citations omitted)

In the instant case, the evidence in the record indicates that the Roadway Express facility had been experiencing ongoing problems with theft. Plaintiff, who had access to valuable packages being shipped by Roadway Express, was found in Miller’s office with a parcel of dresses in an air bag being used for trash collection. Under these facts, we agree with the East Coast defendants that there was sufficient probable cause that plaintiff committed a theft to warrant reporting the incident to the police. Nonetheless, our inquiry does not end there, because plaintiff was also charged with criminal trespass. The evidence in the record indicates that plaintiff was charged with criminal trespass as a direct result of Miller’s alleged fabrication of evidence. On June 26, 1996, the date of the incident, Officer Storm informed plaintiff that he was only planning to charge plaintiff with theft and receiving stolen property, and charges for those two offenses were filed against plaintiff on July 2, 1996. Officer Storm did not file the charge for criminal trespass against plaintiff until July 26, 1996, and the narrative portion of his criminal arrest report indicates that the officer only filed the additional charge of criminal trespass after he had received the statements from Miller and Finnegan. Had Miller merely honestly reported what Slavin had seen to Officer Storm concerning the alleged theft situation, then the probable cause defense may have been applicable. In light of facts against Miller asserted in Finnegan’s deposition, however, we must apply the probable cause analysis to the charge against plaintiff for criminal trespass.

The crime of criminal trespass is defined in 18 Pa.C.S. §3503(a)(l)(ii), which provides: “[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he breaks into any building or occupied structure or separately secured or occupied portion thereof.” 18 Pa.C.S. §3503(a)(l)(ii). Taking the evidence in the light most favorable to plaintiff, the record indicates that Miller had no grounds whatsoever on which to base a reasonable suspicion that plaintiff had committed criminal trespass. According to Finnegan’s deposition, he never saw plaintiff climbing onto a barrel to break into Miller’s office, as Finnegan’s notarized statement claimed. Finnegan has testified that Miller completely fabricated the information asserted in Finnegan’s notarized statement, and Miller forced Finnegan to support Miller’s story by threatening to terminate Finnegan’s employment.

In light of Hess, supra, and the Superior Court’s opinion underlying this remanded proceeding, the probable cause defense is inapplicable to the criminal trespass charge against plaintiff. When the accusatory information at issue is entirely the product of a knowing and deliberate falsehood, there is inherently a lack of probable cause relating to accusations. It stands to reason that there can be no reasonable suspicion when the suspicion is knowingly created from an entirely fabricated story. To grant the summary judgment to the East Coast defendants under the facts of this case would be to approve of the use of knowingly false information to add additional criminal charges against one already accused of criminal conduct. This we decline to do. We hold that as a matter of law, taking the facts in the light most favorable to plaintiff, the evidence in the record is sufficient to establish that Miller, without probable cause, instituted the proceedings against plaintiff for criminal trespass.

The second element required for malicious prosecution is that the accuser’s accusations must have been made “with malice.” Strickland, 700 A.2d at 984. Our Supreme Court has recognized that “[l]egal malice is not limited to motives of hatred or ill will, but may consist of defendant’s reckless and oppressive disregard of plaintiff’s rights.” Hugee v. Pennsylvania Railroad Co., 376 Pa. 286, 291, 101 A.2d 740, 743 (1954). (citations omitted) Furthermore, the existence of malice can be inferred from the absence of probable cause. Amicone, 423 Pa. Super, at 285-86, 620 A.2d at 1224; Hugee, 316 Pa. at 291, 101 A.2d at 743. Accordingly, in the instant case the malice element against Miller is satisfied by our holding that Miller lacked probable cause to provide knowingly fabricated evidence to Officer Storm. Our conclusion is further supported by Finnegan’s assertions that Miller’s conduct was motivated by a severe racial prejudice towards all African-Americans, including plaintiff. We hold that there is sufficient evidence in the record to allow a jury to find that Miller acted with the requisite malice when she initiated the criminal proceedings against plaintiff.

Thus, we hold that plaintiff has met his burden of pointing to the existence of evidence in the record indicating his ability to prove each of the required elements to maintain an action for malicious prosecution against Miller, thus we deny Miller’s motion for summary judgment.

In addition, the evidence in the record indicates plaintiff’s ability to prove liability for malicious prosecution against defendant East Coast Janitorial, because the record indicates that when Miller embarked on her course of fabricating evidence against plaintiff, Miller was both in the employment of East Coast Janitorial, and was working within the scope of her employment as an agent of East Coast Janitorial. The conditions under which a business entity may be liable for the acts of its employees have been set forth at length in Butler v. Flo-Ron Vending Co., where our Superior Court instructed that:

“A master is liable for the acts of his servant which are committed during the course of and within the scope of the servant’s employment . . . [tjhis liability of the employer may extend even to intentional or criminal acts committed by the servant.” Butler v. Flo-Ron Vending Co., 383 Pa. Super. 633,646,557 A.2d 730,736 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989).

The Butler court also noted that “[wjhether a person acted within the scope of employment is ordinarily a question for the jury.” Id. at 646, 557 A.2d at 736. (citation omitted) In the instant case, there is no dispute that Miller was plaintiff’s direct supervisor at East Coast Janitorial, and the record indicates that Miller’s alleged fabrication of evidence was performed as a means to facilitate discipline against an employee working for East Coast Janitorial under Miller’s supervision. We hold that these facts could allow a jury to find that Miller was working within the scope of her employment for East Coast Janitorial when she allegedly fabricated the evidence against plaintiff. Accordingly, we find that the evidence in the record may be sufficient for a jury to impose liability on East Coast Janitorial for Miller’s conduct, and thus we deny summary judgment for East Coast Janitorial.

We find no merit in the East Coast defendants’ assertion that plaintiff’s action may not be maintained because plaintiff has not pled any specific monetary or emotional distress damages. Defendants are correct that our Superior Court has held that “a plaintiff pleading the existence of emotional [damages] must substantiate that he actually suffered the claimed distress with expert medical confirmation.” Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 584, 670 A.2d 173, 111 (1996). (citations omitted) Defendants are also correct in their assertions that plaintiff has not named an expert medical witness who will substantiate plaintiff’s damages claim, and that plaintiff has not pled the existence of actual monetary damages.

Nonetheless, our Superior Court has held that medical testimony is not required to establish emotional damages in an action for malicious prosecution. Wecht v. PG Publishing Co., 725 A.2d 788, 790 (Pa. Super. 1999), citing Shelton v. Evans, 292 Pa. Super. 228,437 A.2d 18 (1981). In Shelton, the court held that “in an action for malicious prosecution, compensatory damages may include all of the plaintiff’s actual expenses in defending himself, compensation for loss of liberty or time, harm to reputation, physical discomfort, interruption of business, mental anguish, humiliation, and injury to feelings.” Id. at 233, 437 A.2d at 21. (citations omitted) The Wecht court recognized that the types of intangible injuries suffered by a victim of malicious prosecution may be so obvious that no expert medical confirmation is required. Wecht, 725 A.2d at 790. In the instant case, the evidence contained in plaintiff’s deposition indicates he may be able to prove that the criminal proceedings at issue have caused him to suffer great mental anguish and a loss of reputation, along with suffering interference with his daily business relations and repercussions affecting his marriage. Under Shelton and Wecht, supra, we are not persuaded by the East Coast defendants’ assertion that they are entitled to summary judgment solely on the issue of damages.

Finally, we do not agree with defendants’ assertion at oral argument that they are entitled to summary judgment due to the procedural defects in plaintiff’s response to their motions for summary judgment. Defendants are correct that plaintiff’s response was not filed in accordance with Rule 211 of the Monroe County Local Rules of Civil Procedure, because the response was not filed more than five days prior to the date of oral argument. A violation of Rule 211 of the Monroe County Local Rules of Civil Procedure constitutes a default that allows a court to grant or deny the relief at issue, however it is a discretionary decision for the court, not a mandatory one. In the instant case, plaintiff’s response to the motions for summary judgment was filed within the 30 days specified by Pa.R.C.P. 1035.3(a), and defendants have failed to show how plaintiff’s failure to comply with local Rule 211 has caused any prejudice to their case. We decline to enter summary judgment on behalf of the East Coast defendants solely on the issue of plaintiff’s failure to comply with local Rule 211.

ORDER

And now, My 26,2000, summary judgment is granted for Roadway Express Inc., Mark Slavin, and Thomas Smedley. The motion of East Coast Janitorial and Carrie Miller for summary judgment is denied.


author: STEWART, Member,

text:
    In re Anonymous No. 51 D.B. 92
    Disciplinary Board Docket no. 51 D.B. 92.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

May 17, 1999

STEWART, Member,

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

I. HISTORY OF PROCEEDINGS

A petition for reinstatement was filed by petitioner, [ ], on June 11, 1998. By order of the Supreme Court dated February 14,1995, petitioner was suspended for a period of five years, retroactive to June 3, 1992. This suspension was based on petitioner’s conviction of conspiracy to defraud the United States of America, in violation of 18 U.S.C. §371.

A reinstatement hearing was held on September 10, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ ], Esquire. Office of Disciplinary Counsel was represented by [ ], Esquire.

The Hearing Committee filed a report on February 8, 1999 and recommended that the petition for reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of March 10, 1999.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was born in 1954 and was admitted to practice law in Pennsylvania in 1979. Petitioner currently resides at [ ]. His current business address is [ ].

Petitioner is married and the father of three children. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(2) In 1984, petitioner became the executive director of the [A]. This entity is a local government agency that handles tax free loans in [ ] County. In addition, petitioner was the commerce director of the [B], an umbrella agency of the [C].

(3) Petitioner’s duties included overseeing the expenditure of funds received by the agencies.

(4) In 1989, the Department of Housing and Urban Development commenced an investigation and audit of the agency. As a consequence, petitioner was charged with misuse of federal funds earmarked for community development block grants. Instead of applying federal funds to assist low and moderate income owners, petitioner allocated funds to improper loans, entertainment and personal expenses.

(5) On November 26, 1991, petitioner pleaded guilty to conspiracy to defraud the United States of America in violation of 18 U.S.C. §371. The amount in issue was approximately $327,313.

(6) Petitioner was sentenced on March 30, 1992 to five years of probation and directed to pay restitution of $37,000, a fine of $4,000 and a special assessment fee of $500. Petitioner paid in full the restitution, fine and assessment fee. Petitioner’s probation was terminated early on the motion of the government at three years into the probationary period.

(7) As a result of this conviction, petitioner was placed on temporary suspension from the practice of law by order of the Supreme Court dated June 3,1992.

(8) During the period of his suspension, petitioner worked as a consultant to insurance companies, developers, and other businesses in establishing real estate portfolios and/or assisting in obtaining financing for construction or real estate leasing projects.

(9) Petitioner remained involved in many family, charitable, and religious activities during his suspension. He helped his alma mater, [D], raise funds for the school, and he is a member of the Board of Overseers of [E] School of Law. Petitioner served as a soccer coach and a member of the [F].

(10) In order to keep current in the law, petitioner took the required amount of CLE courses and read the advance sheets and professional publications pertaining to real estate law.

(11) Petitioner presented five character witnesses who testified that he is honest, candid, and an asset to the community. These witnesses did not believe that petitioner’s reinstatement would have an adverse effect on the public or the legal profession.

(12) Petitioner presented numerous character letters from attorneys and community members who support petitioner’s reinstatement.

(13) Petitioner testified that at the time of his misconduct, he was immature and more interested in accomplishing political goals in furtherance of his career than in making sure the actions he took as executive director were appropriate. He admits he was not diligent and relied upon the advice of others who were ill-informed or had different motivations.

(14) Petitioner takes full responsibility for his actions and understands the negative impact his misconduct has had on the profession and his family.

(15) Office of Disciplinary Counsel does not oppose the petition for reinstatement.

III. CONCLUSIONS OF LAW

Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law necessary to practice law in Pennsylvania.

Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

This matter is before the Disciplinary Board for consideration of a petition for reinstatement from suspension. An attorney who is suspended from the practice of law for a period exceeding one year may not resume practice until reinstated by order of the Supreme Court of Pennsylvania. Pa.R.D.E. 218(a). In order for petitioner to gain reinstatement he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law, and that the resumption of the practice of law will neither be detrimental to the integrity of the bar or administration of justice, nor subversive of the public interests. Pa.R.D.E. 218(c)(3)(I).

In determining whether petitioner clearly demonstrated his present fitness to practice law, the board considers the nature of petitioner’s misconduct, his present competence and legal abilities, his character, rehabilitation, and the degree of remorse expressed. Philadelphia News Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was suspended for a period of five years, retroactive to June 3, 1992, for his conviction of conspiracy to defraud the United States of America. This conviction arose from petitioner’s misuse of federal funds in his capacity as executive director of the [A]. Petitioner authorized the expenditure of funds for a purpose other than the stated purpose. Petitioner was sentenced to a period of probation for five years. This was terminated after three years at the motion of the government.

Since petitioner’s suspension, he has worked as a consultant to various insurance companies and developers in establishing real estate portfolios and obtaining financing. Petitioner served on the Board of Overseers for [E] School of Law, and helped fund-raise for his high school. He involved himself in community and church activities.

Petitioner kept current on the trends in the law by reviewing the advance sheets and real estate publications. He attended the required continuing legal education seminars. If reinstated, petitioner plans to pursue a general law practice.

Petitioner presented character witnesses who testified that he is an honest, ethical person who is an asset to the community. These witnesses are attorneys who have known petitioner for many years and who do not hesitate to recommend him for reinstatement..

Petitioner expressed sincere remorse for his misconduct, for which he accepts full responsibility. Instead of researching and understanding the underlying law governing the expenditures, he foolishly relied on the advice of others who had political motivations. Petitioner states that initially he was convinced that the expenditures were legitimate since the loans were audited by an independent certified public accountant. It took time for him to admit his wrongdoings to himself. Petitioner believes that the past seven years of suspension have served him well in allowing himself to identify the mistakes he made. He assured the Hearing Committee that he will never again act as he did in the past, nor will he allow himself to be swayed by political goals or the influence of others.

Petitioner engaged in serious misconduct which was addressed by the Supreme Court with a suspension of his license for a period of five years. Petitioner has served his term of suspension and has rehabilitated himself and demonstrated by clear and convincing evidence that he has the requisite moral qualifications, competency and learning in the law necessary for reinstatement. It is equally clear that petitioner’s resumption of the practice of law will not be detrimental to the profession or to the public interest.

The board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

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

ORDER

And now, July 8, 1999, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated May 17,1999, the petition for reinstatement is granted.

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


author: MARROLETTI, Member,

text:
    In re Anonymous No. 8 D.B. 97

      Disciplinary Board Docket no. 8 D.B. 97.
    May 17, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

MARROLETTI, Member,

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

I. HISTORY OF PROCEEDINGS

A petition for reinstatement was filed by petitioner, [ ], on July 29,1998. By order of the Supreme Court of Pennsylvania dated April 20, 1998, petitioner was suspended from the practice of law for a period of one year and one day, retroactive to November 21, 1996.

A reinstatement hearing was held on October 8,1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ ], Esquire. Office of Disciplinary Counsel was represented by [ ], Esquire.

The Hearing Committee filed a report on January 6, 1999 and recommended that the petition for reinstatement be granted.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of March 10,1999.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was born in 1964 and was admitted to practice law in Pennsylvania in 1989. Petitioner currently resides at [ ]. Petitioner is married and has a young daughter. Petitioner is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(2) From February 1,1993 to February 29,1996, petitioner was employed as a salaried associate attorney by the law firm of [A], in [ ].

(3) During his tenure with the firm, petitioner was individually responsible for his own billing and collection of fees, and also had sole authority for writing off time, writing off invoices, reducing time and reducing invoices, as they related to fees for services rendered.

(4) Beginning in approximately November 1994 and continuing through approximately January 1996, petitioner diverted to himself and converted to his own use, a portion of the fees he had collected on behalf of the firm.

(5) In February 1996, petitioner admitted his misconduct to the firm and offered restitution. Petitioner also agreed to resign from the firm and report himself to the Disciplinary Board.

(6) The law firm determined that petitioner owed $53,000 in restitution. Petitioner agreed to this sum and paid it in full. There is no evidence of record as to the exact amount of funds petitioner converted. Petitioner resigned from the law firm at the end of February 1996.

(7) Subsequent to his resignation, petitioner operated as a sole practitioner until September 1996. He filed a notice of voluntary assumption of inactive status with the Supreme Court and was transferred to inactive status on November 21, 1996.

(8) Petitioner was suspended from the practice of law for a period of one year and one day by order of the Supreme Court dated April 20, 1998. This suspension was made retroactive to November 21,1996, the date of petitioner’s transfer to inactive status.

(9) After petitioner’s transfer to inactive status, he worked for a short period of time with the [B] Association in [ ] as a part-time fund-raiser. His position was eliminated due to a lack of funding, and he received unemployment compensation through the summer of 1997.

(10) In November 1997, he started work as a manager trainee with [C] restaurant in [ ]. He left that job in January 1998 for a higher paying job at [D] Inc., where he is employed as a dye cast operator. He currently holds that position.

(11) Petitioner began a second, part-time job on July 1, 1998 with [E] Manufacturing in [ ], where he is employed in the maintenance department. Between the two jobs, petitioner works approximately 75 hours per week.

(12) Petitioner’s suspension has greatly impacted his family and lifestyle. Petitioner lost his house in September 1997 and moved to a rental home. One vehicle was repossessed, and petitioner filed for bankruptcy in September 1997.

(13) Petitioner and his family no longer take vacations or eat out for dinner. Petitioner gave up memberships in golf and eating clubs.

(14) Petitioner and his family sought counseling to deal with the turmoil of these changes.

(15) To maintain his currency in the law, petitioner read the [ ], the [ ], and PBI manuals. He took the required amount of Continuing Legal Education credits.

(16) Two witnesses testified as to petitioner’s good reputation in the community. [F], Esquire, has known petitioner since they were law clerks together during law school. [F] testified that petitioner’s reputation is excellent. He is a very efficient, competent attorney who can be relied upon.

(17) [G] also testified for petitioner. [G] is the president of [E], where petitioner is employed. [G] testified that petitioner is an excellent and reliable employee.

(18) Petitioner testified that he is extremely remorseful for his misconduct. (N.T. 17.) He realizes the egregiousness of his actions. He bears much guilt for the impact his actions have had on his family.

(19) Office of Disciplinary Counsel does not oppose petitioner’s reinstatement.

IH. CONCLUSIONS OF LAW

Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law necessary to practice law in Pennsylvania.

Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement from a suspension of one year and one day. The sole question to be determined in this matter is whether petitioner’s request for reinstatement to the bar of the Supreme Court of Pennsylvania should be granted. In order for petitioner to gain reinstatement he has the burden of proving by clear and convincing evidence, that he has the moral qualifications, competency and learning in the law required for admission to practice law, and that the resumption of the practice of law will neither be detrimental to the integrity of the bar or administration of justice, nor subversive of the public interest. Pa.R.D.E. 218(c)(3)(i).

In determining whether petitioner clearly demonstrated his present fitness to practice law, the board considers the nature of petitioner’s misconduct, his present competence and legal abilities, his character, rehabilitation, and the degree of remorse expressed. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was suspended for a period of one year and one day, retroactive to November 21, 1996, after he admitted misappropriating funds from his law firm, where he was employed as an associate. Petitioner’s reason for the misappropriation had to do with the loss of family income after his wife quit her job, and what he terms as his poor financial planning. The exact amount of funds taken by petitioner was never established for the record; however, the law firm decided on an amount of $53,000 as restitution. Petitioner paid this amount in full. No criminal charges were brought against petitioner.

Petitioner resigned from the law firm in February 1996. For a brief period he operated a solo practice and then voluntarily assumed inactive status in November 1996. During petitioner’s suspension he has worked primarily as a laborer. He currently maintains a full-time position with [D] Inc. in [ ], and a part-time position with [E] in [ ]. Petitioner’s lifestyle has changed dramatically since his suspension. He and his family lost their home and currently rent a house. One of their vehicles was repossessed. Petitioner was forced to file for Chapter 7 bankruptcy. Petitioner and his family no longer take vacations or go out to eat, and petitioner’s work schedule is such that he rarely has the opportunity to spend time with his wife and young child. Petitioner and his family entered into counseling to help them deal with the upheaval in their lives.

Petitioner recognizes that his misconduct was the direct cause of these lifestyle changes, and he suffers a lot of guilt because of this. He is very remorseful and understands the egregiousness of his actions and how they have damaged his future employability. He has learned a hard lesson and is certain that he will never engage in such conduct in the future. He is looking forward to practicing law again and plans to engage in a general practice in [ ] if reinstated.

Two witnesses testified on petitioner’s behalf as to his reputation in the community. Both witnesses testified that petitioner has a very good reputation. Attorney [F] testified that petitioner is legally competent and efficient and his reinstatement would not be detrimental to the community.

To maintain his currency in the law, petitioner read the [ ], the [ ], and PBI manuals. He took the required Continuing Legal Education credits.

Petitioner engaged in serious misconduct which was addressed by the Supreme Court with a suspension of his license to practice law for one year and one day. Petitioner has served his term of suspension and has rehabilitated himself and demonstrated by clear and convincing evidence that he has the requisite moral character, competency and learning in the law necessary for reinstatement. It is equally clear that petitioner’s resumption of the practice of law will not be detrimental to the profession or to the public interest.

The board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

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

ORDER

And now, July 8, 1999, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated May 17,1999, the petition for reinstatement is granted.

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