author: KELLER, J,

text:
    Dickey v. Isaacs

      C.P. of Berks County,
    no. 04-03698.

      Lynne Gold-Bikin and Christina DeMatteo, for plaintiff.

      Frederick Mogel and Jennifer Grimes, for defendant.
    October 19, 2005
   KELLER, J,

Susan B. Dickey (plaintiff or Mother) and Jared Isaacs (defendant or Father) were married on January 4, 1997. On March 17, 1997, the parties’ minor child, Elizabeth, was bom. A complaint in divorce was filed on March 17, 2004. On June 3, plaintiff filed an emergency petition for relocation with this honorable court requesting permission to relocate to Ambler, Pennsylvania, with the minor child. On August 16, 2005, the Honorable Scott D. Keller entered an order granting Mother’s emergency petition for relocation. On September 6,2005, an order was entered granting plaintiff’s petition to relocate and giving plaintiff primary physical custody of Elizabeth. A notice of appeal of this court’s decision granting plaintiff permission to relocate was filed by defendant on September 14, 2005. On September 21, 2005, defendant was ordered by this court to file a concise statement of matters complained of on appeal within 14 days, which defendant’s counsel did file on September 29, 2005.

In his concise statement of matters complained of on appeal, the defendant raises the following 11 issues:

(1) Whether the court abused its discretion/committed an error of law in failing to perform a comprehensive and searching inquiry into the best interests of the child in reaching its decision permitting Mother to move to Ambler.

(2) Whether the court abused its discretion/committed an error in denying Father’s request for primary custody.

(3) Whether the court abused its discretion/committed an error in failing to properly apply the Gruber criteria to determine whether relocation serves the child’s best interests.

(4) Whether the court abused its discretion/committed an error of law in finding that there would be a substantial improvement to the quality of life of the child by the proposed move to Ambler.

(5) Whether the court abused its discretion/committed an error of law in finding there would be a substantial improvement to Mother’s life by allowing the move to Ambler.

(6) Whether the court abused its discretion/committed an error of law in finding that realistic substitute partial custody was available.

(7) Whether the court abused its discretion/committed an error of law in failing to consider both family units where no prior custody order awarding primary custody was in place.

(8) Whether the court abused its discretion/committed an error of law in failing to give appropriate weight to the fact that Father was Elizabeth’s primary caretaker due to Mother’s extensive work schedule and by allowing Mother to move with the child, the child would be raised by baby sitters and her grandfather, rather than Father.

(9)Whether the court abused its discretion/committed an error of law in failing to give appropriate weight to Elizabeth’s preference to live with Father in Boyer-town.

(10)Whether the court abused its discretion/committed an error of law in hearing evidence pertaining to phone calls Father made to Mother and Mother’s family after Mother abducted the minor child and refused to return the child and/or inform Father of their whereabouts.

(11)Whether the court abused its discretion/committed an error of law in failing to give appropriate weight to the fact that Mother filed a petition to relocate and, in spite of the scheduled hearing and without the court’s or Father’s knowledge or permission, took it upon herself to abduct the child and relocate to Ambler. (Defendant’s concise statement of matters complained of on appeal, 09/29/05.)

Defendant’s issue no. 1 in his concise statement alleges that this court erred in failing to perform a comprehensive and searching inquiiy into the best interests of the child in reaching its decision to permit plaintiff to relocate to Ambler. This court disagrees. The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. E.A.L. v. L.J.W, 443 Pa. Super. 573, 580, 662 A.2d 1109, 1112 (1995). “The court in a custody action has the obligation to consider all relevant factors that could affect the child’s well-being.” Id. In the case at hand, this court carefully reviewed and weighed the benefits to Elizabeth that would result from permitting plaintiff to move to Ambler against the benefits that would result from Elizabeth staying in Boyertown with defendant. Further, this court reviewed the extensive set of evaluations done by Mildred H. Gordon Ph.D. and L. A. Rotenberg M.D., F.A.P.A., as well as their recommendations. These evaluations touched on several areas that would ultimately affect Elizabeth’s well-being, including the parties’ fitness as parents, their mental soundness, job stability, and their abilities to both separate themselves from and nurture the child. After carefully considering all of the relevant factors, this court found that, because of the abundance of opportunities for Elizabeth in Ambler, it would be in her best interest to permit plaintiff to relocate.

Defendant raises, in issue no. 2, the question of whether this court committed an error of law and/or abused its discretion in denying Father’s request for primary custody. Similarly, issue no. 7 concerns this court’s award of primary custody to Mother, and raises the question of whether this court committed an error of law/abused its discretion in failing to consider both family units where no prior custody order awarding primary custody was in place. Again, a determination of which parent should be awarded custody in a divorce action centers around what is in the best interest of the child. Id. Neither parent shall have a specific legal advantage when a trial court devises an initial custodial order. Hurley v. Hurley, 754 A.2d 1283, 1286 (Pa. Super. 2000). “Because here, there were two, not one, primary family units preceding institution of the custody award, both must be scrutinized similarly in the examination of competing custodial environments ____” Id. at 1285. (citation omitted) Defendant correctly points out that, because there was no custody award prior to plaintiff’s petition to relocate, the court must consider both the family unit of Mother and Elizabeth and the family unit of Father and Elizabeth. This court did precisely that, relying heavily on the evaluations of Drs. Rotenberg and Gordon in making its determination. Evaluations were conducted of both plaintiff and defendant individually as well as with Elizabeth. After plaintiff’s individual evaluation, the conclusion was “Between her and her husband, she has something of an edge in terms of the quality of her parenting, and in particular her ability to separate herself emotionally speaking from Elizabeth and to put appropriate limits on her.” (N.T. petition to relocate, 08/16/05, court exhibit no. 1, p. 62.) Of defendant’s individual evaluation, one of the conclusions was “While he and his wife have their ‘issues,’ he is the one who has more issues, has more difficulty separating himself from Elizabeth, and putting limits on her, and this in fact is a crucial issue with regard to his parenting style.” (N.T. petition to relocate, 08/16/05, court exhibit no. 1, p. 72.) This court carefully considered all of these evaluations, and took into consideration their recommendations about both plaintiff and defendant’s separate family units, when making the decision that it was in the child’s best interest to award primary custody to Mother.

Defendant’s claims nos. 3-6 deal with this court’s application of the facts of this case to the standards outlined in Gruber v. Gruber. “In order to decide whether a custodial parent and children shall be permitted to relocate at a geographical distance from a non-custodial parent, atrial court must consider [several] factors.” Gruber v. Gruber, 400 Pa. Super. 174, 184, 583 A.2d 434, 439 (1990). “First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent.” Id. “In considering the prospective advantages to the move, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent but must also assess other possible benefits of relocation.” Id. “Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it.” Id. at 185, 583 A.2d at 439. “The court must assure itself that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy, loving relationship between the child and the non-custodial parent.” Id. “Finally, the court must consider the availability of realistic, substitute visitation agreements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Id.

“When a custodial parent seeks to relocate at a geographical distance and the non-custodial parent challenges the move, the custodial parent has the initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children.” Id. at 186, 583 A.2d at 440. In this case, this court carefully considered each of the Gruber factors in reaching its decision to grant plaintiff’s petition to relocate. Plaintiff is an associate professor of nursing at Temple University, and has been for the past 25 years. She originally moved to Boyertown to support the defendant in his new job, as he was required to live in his sales territory. (N.T. petition to relocate, 07/11/05, p. 8.) Her sacrifice for defendant resulted in a commute from Boyertown to her job at Temple University in Philadelphia that was 100 miles round-trip, and could sometimes take three hours total. (N.T. petition to relocate, 07/11/05, p. 8.) The effect of her commute put her in the car a minimum of 15 hours per working week. (N.T. petition to relocate, 07/11/05, p. 26.) If permitted to relocate, plaintiff’s commute to work would be drastically reduced. Plaintiff expects the 21 -mile commute from Ambler to Temple University would be approximately half that of the commute between Boyertown and Temple, giving her more hours to spend with Elizabeth each day. (N.T. petition to relocate, 07/11/05, p. 27.) By permitting the move to Ambler, plaintiff’s quality of life will significantly improve. She will be closer to her place of employment, therefore spending less time in the car and more time with her daughter, and she will be away from an environment that was a constant source of tension and unhappiness.

This court carefully reviewed the other advantages of the proposed move by plaintiff. Other than spending less money on transportation expenses, plaintiff’s relocation would not provide any significant economic benefit, as she would not be making any more money at her job, but the relocation would provide several other significant benefits. Most of these benefits concern Elizabeth. Mother testified and provided documentation that the Upper Dublin School District was far superior to the Boyertown School District in terms of the educational resources that would be available to Elizabeth, who has a reading disability. (N.T. petition to relocate, 07/11/05, plaintiff’s exhibits 1-4, pp. 103-50.) Furthermore, in Ambler, plaintiff has an extensive network of friends and colleagues who can provide support services to both her and Elizabeth, including an abundance of tutors for Elizabeth.

Next, this court reviewed the motives behind the petition to relocate. Clearly this relocation to Ambler was motivated by the desire to improve the quality of life for both plaintiff and the minor child Elizabeth. The petition to relocate was not brought simply to frustrate the visitation rights of defendant nor was it plaintiff’s intention to impede the development of a healthy, loving relationship between defendant and Elizabeth. In fact, plaintiff testified numerous times that she admired the nice things that defendant likes to do with Elizabeth on the weekends and she would have no objections to defendant receiving an extra weekend of visitation each month if he agreed to the relocation. (N.T. petition to relocate, 07/11/05, p. 48.) Additionally, plaintiff offered one dinner per week and half of the summer months to defendant. This testimony satisfies both the second and third prong of the Gruber analysis, as there is only 30 miles distance from Boyertown to Ambler, and plaintiff is willing to work out a substitute visitation agreement that will continue to foster the relationship between defendant and Elizabeth. The distance between Boyertown and Ambler is not so great that a satisfactory visitation agreement could not be worked out between the parties so that each parent receives an adequate amount of time with their daughter.

Therefore, after carefully reviewing all of the Gruber factors above and after careful consideration of the facts of this case, this court finds that each element of the analysis was satisfied and that granting the plaintiff’s petition for relocation to Ambler, Pennsylvania, was in the best interests of both the plaintiff and the minor child.

Defendant also questions, in issue no. 8, whether the court abused its discretion/committed an error of law in failing to give appropriate weight to the fact that Father was Elizabeth’s primaiy caretaker due to Mother’s extensive work schedule and, by allowing Mother to move with the child, the child would be raised by baby sitters and her grandfather, rather than Father.

“The ‘primary caretaker doctrine’ requires the trial court to give positive consideration to the parent who has been the primary caretaker, and is one of the many factors for the trial court to consider when determining the best interest of a child.” Marshall v. Marshall, 814 A.2d 1226, 1231 (Pa. Super. 2002). “When both parents are otherwise fit, one parent’s role as the child’s primary caretaker may be given weight as a determining factor by the court.” Wiskoski v. Wiskoski, 427 Pa. Super. 531, 537, 629 A.2d 996, 999 (1993). However, Mother testified that she believed she, and not defendant, was the primary caretaker for Elizabeth, going beyond the normal parenting “tasks” such as clothing, feeding and bathing. Despite her successful career, Plaintiff saw to it that Elizabeth was enrolled in swimming lessons every spring and summer, took her to ballet, gymnastics, guitar and piano lessons, attended church with her, and taught at Elizabeth’s church day camp for one week every August. Additionally, plaintiff made all of the evening meals for the family after work on nights she wasn’t teaching, packed Elizabeth’s lunches, took Elizabeth to the doctor and read to her before putting her to bed at night. (N.T. petition to relocate, 07/11/05, pp. 45-48.) By relocating to Ambler, plaintiff will have even more time to spend being Elizabeth’s primary caretaker. Therefore, contrary to defendant’s assertions, Elizabeth will not be raised by baby sitters and her grandfather. Although plaintiff’s father did relocate to Ambler to be closer to her and Elizabeth, plaintiff has no intention of abdicating her child raising responsibilities to him. In fact, plaintiff testified that her schedule for this fall semester permits her to take Elizabeth to school eveiy morning except for two Fridays that she has early lab sessions scheduled. Only then will the help of her father be necessary. (N.T. petition to relocate, 07/11/05, pp. 31-32, 96.)

In issue no. 9 of his concise statement, defendant argues that the court abused its discretion/committed an error of law in failing to give appropriate weight to Elizabeth’s preference to live with Father in Boyertown. However, when asked about where she might want to live or who she might want to live with, Elizabeth responded, “I want to live with my mom and dad as much as I live with them now.” (N.T. plaintiff’s petition to relocate, 08/16/05, p. 5.) The weight to be accorded to a child’s preference varies given with the age, maturity and intelligence of that child, together with the reasons given for the preference. Swope v. Swope, 689 A.2d 264, 266 (Pa. Super. 1997). Clearly, Elizabeth is a child who feels very conflicted over the separation and divorce of her parents, both of whom love her dearly and neither of which she wants to hurt or disappoint. Elizabeth asserted that she felt comfortable in the home in Boyertown because it was the home she had lived in all her life, but that she also felt comfortable in the apartment she shared with plaintiff in Ambler. (N.T. plaintiff’s petition to relocate, 08/16/05, p. 7.) Because of the enormous amount of pressure on this child, this court feels as though any statements she may have made about wanting to live with her father had more to do with her desire to remain in the home and school with which she was familiar and comfortable, and were not the product of her expressing a preference for one parent over the other.

Issue no. 10 deals with the question of whether the court abused its discretion/committed an error of law in hearing evidence pertaining to phone calls Father made to Mother and Mother’s family after Mother abducted the minor child and refused to return the child and/or inform Father of their whereabouts. This court maintains that it did not commit an error of law in hearing evidence of these phone calls, as the proper foundation was laid for the testimony and defendant’s counsel had the opportunity at the time of the hearing to object to the admission of the transcripts into evidence but did not. (See N.T. petition for relocation, 07/11/05, pp. 37-43.)

Defendant’s issue no. 11 in his concise statement deals with plaintiff’s relocation to Ambler with the child before a hearing could be heard on her petition to relocate. While this court acknowledges that plaintiff did not have permission to relocate to Ambler, disobedience of a court order is only one factor of many to be considered when making a best interest of the child determination. Clapper v. Harvey, 716 A.2d 1271, 1275 (Pa. Super. 1998). Plaintiff testified that things had so badly deteriorated in the marital home that it was not a good setting for Elizabeth to be observing. (N.T. petition to relocate, 07/11/ 05, p. 48.) This court feels that plaintiff had only the best intentions in moving herself and her daughter to Ambler before the hearing could be held on the issue and, while it does not condone plaintiff’s behavior, it does not rise to the level of egregiousness that would cause this court to believe that a relocation was not ultimately in the child’s best interest.

For all of the foregoing reasons, this court respectfully requests that this court’s order granting the plaintiff’s petition for relocation be affirmed and the defendant’s appeal be denied.


source: Caselaw Access Project

author: QUINONES ALEJANDRO, J,

license: Public Domain

text:
    Andreassen v. Saf-Gard Safety Shoe Company Inc.

      Jaime D. Jackson, for plaintiff.

      Mary F. Dixon, for defendant Saf-Gard.
    September 29, 2005-
   QUINONES ALEJANDRO, J,

INTRODUCTION

These above-captioned appeals arise from a jury verdict in a strict products liability civil action, involving “molder’s boots,” in favor of Scott C. Andreassen, plaintiff, and against defendants Saf-Gard Safety Shoe Company Inc., and Weinbrenner Shoe Company Inc., and from this trial judge’s denial of post-trial motions for judgment notwithstanding the verdict. After the filing of these appeals and prior to the submission of this opinion, Weinbrenner Shoe Company reached an out-of-court settlement agreement with plaintiff. Consequently, the appellate issues previously set forth by Weinbrenner Shoe Company are deemed moot and will not be addressed. The appellate issues addressed in this opinion are those presented by Saf-Gard Safety Shoe Company Inc., defendant.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Based upon the evidence presented during the trial, it is reasonable to infer that the jury considered the following relevant facts when rendering its verdict:

“Sometime in November of 2001, plaintiff was hired by Lancaster Malleable Casting Company, a foundry (not a party to this matter) as a part-time shifter. This foundry handles metals at extremely high temperatures to mold into a final product.

“On June 30, 2002, the day of the accident, plaintiff held the position of a ‘bull puller, ’ responsible for transporting molten metal from the furnace to the mold using a ‘bull.’ Plaintiff described the workplace as follows: generally, bulls are placed in rows, one next to each other, in front of furnaces where the iron is melted. Once the bulls are filled with molten metal, the worker or bull puller pulls the bull using its two handles away from the furnace and to another location in the foundry, as directed by the heat directors.. This process concludes with the pouring of the melted iron into particular molds located on specific floors, where the cooled molds are then sifted for the final product.

“On the date of the accident, plaintiff arrived at the foundry and outfitted himself with a bandanna to pull his hair back, safety goggles, sleeves, gloves, leggings, earplugs, and boots. Plaintiff identified these boots, the subj ect of this litigation, as the TG2118 boots, also known as ‘molder’s boots,’ made of leather with a steel toe and a loose-fitting elastic along the top of the boot for easy ‘kick off’ should anything get inside the boots. These molder’s boots, which were recommended by his employer, were manufactured and advertised as ‘molder’s’ boots by Weinbrenner Shoe Company, a manufacturer of footwear since 1892, and sold by Saf-Gard Safety Shoe Company Inc., a retailer and specialist in providing footwear to certain customers and expert advice to companies regarding industry shoe trends and the technologies offered by those companies.

“After plaintiff outfitted himself with the appropriate gear and his bull was filled with molten iron, he began to pull (backwards) the bull towards another location in the foundry, as instructed by the heat director. Directly behind plaintiff, a co-worker was slowly pulling another bull. As plaintiff slowed down to avoid running into the co-worker, plaintiff tripped over an incline on the plant floor. The bull hit the right side of his back foot causing plaintiff to lose control ofthe bull and the hotmelted iron to spill onto the floor. At the sight ofthe spill, plaintiff tried to avoid it by running through the hot iron. Plaintiff ran to a hallway, in the opposite direction of where the molders were located, and removed his left boot. Unfortunately, some of the hot molten iron spilled onto his boot and burned through the goring (elastic) material covering his left ankle. Plaintiff did not suffer any injuries to his right foot and/or ankle.

“Plaintiff was immediately taken to Lancaster General Hospital by Thomas Martone, the vice-president of personnel and safety of Lancaster Malleable, and Carmelo Mendez, the lead person in the heat molding department. He was initially treated and given morphine, then transferred to the Crozer-Chester Burn Center, where he remained hospitalized for approximately three weeks. During this hospitalization, he received extensive treatment, including a skin graft.

“Plaintiff has undergone numerous surgeries on his left foot, including additional skin grafts procedures and a surgery to separate his toes. In addition and periodically, the scar tissue on his foot breaks open causing him pain and discomfort. As a result of these injuries, plaintiff claims that he is unable to stand for a long period of time in one location.”

Procedurally, on January 8,2003, plaintiff filed a strict products liability action against numerous defendants, including the aforementioned defendant. A seven-day trial commenced on February 21, 2005, and concluded with a jury verdict in favor of plaintiff and against defendants Saf-Gard Safety Shoe Company Inc., and Weinbrenner Shoe Company Inc., in the amount of $808,333.33.

On March 8 and 17,2005, defendant and Weinbrenner Shoe Company, respectively, filed post-trial motions requesting judgment n.o.v. On March 28, 2005, plaintiff filed a petition for delay damages. Oral argument on these motions was heard on April 28, 2005, and by distinct orders dated May 5,2005, this trial judge denied the requests for judgment n.o.v. and granted in part plaintiff’s petition for delay damages.

On May 13, 2005, a final judgment was entered on the verdict of record. On June 3 and 6, 2005, defendant and Weinbrenner Shoe Company filed their respective appeals. As stated, Weinbrenner Shoe Company, thereafter, settled with plaintiff.

ISSUES

In response to an order issued in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), defendant, on June 24, 2005, filed of record a statement of matters complained of on appeal and essentially argued that this trial judge erred:

“(1) in not granting judgment n.o.v.:
“(a) because the molder’s boots were not unreasonably dangerous;
“(b) on the basis that defendant was entitled to, inter alia, common-law indemnity from the manufacturer;
“(c) on the basis that defendant is not liable as a matter of law on plaintiff’s ‘inadequate warning’ claim in this strict products liability action;
“(d) where there was no duty to warn because the purported defect was ‘open and obvious’;
“(e) in that the evidence established that, even if a proper warning would have been provided, it would not have been heeded;
“(f) in that the verdict was against the weight of the evidence since the evidence established that plaintiff voluntarily assumed the risk of harm; and
“(g) there was insufficient evidence as to how the injury occurred.
“(2) in precluding defendant from utilizing the ‘sophisticated user’ defense;
“(3) in precluding evidence that the molder’s boots met OSHA guidelines and other industry regulations; and
“(4) in permitting plaintiff to introduce negligence concepts against defendant.”

LAW AND DISCUSSION

Essentially, defendant argues that this trial judge committed numerous errors when denying its post-trial motion for judgment n.o.v. This trial judge disagrees.

It is acknowledged that a judgment n.o.v. may be entered where: (1) the moving party is entitled to judgment as a matter of law and/or (2) the evidence is such that no two reasonable minds could disagree that the verdict should have been rendered for the moving party. Haddad v. Gopal, 787 A.2d 975, 979 (Pa. Super. 2001), appeal denied, 572 Pa. 705, 813 A.2d 842 (2002). Atrial court’s decision granting or denying judgment n.o.v. will be subject to the appellate court’s scrutiny to determine whether there is sufficient competent evidence to sustain the verdict. Carrozza v. Greenbaum, 866 A.2d 369, 379 (Pa. Super. 2004); Kennedy v. Sell, 816 A.2d 1153, 1156 (Pa. Super. 2003). The appellate court will review all of the evidence in the light most favorable to the verdict winner and will give that party the benefit of every reasonable inference arising from that evidence while rejecting all unfavorable testimony and inferences. Birth Center v. St. Paul Companies Inc., 567 Pa. 386, 397, 787 A.2d 376, 383 (2001); Haddad, 787 A.2d at 979. The appellate court’s scope of review is plenary concerning any questions of law. Id. Regarding questions of credibility and the weight accorded the evidence at trial, however, the court will not substitute its judgment for that of the fact-finder. Cruz v. Northeastern Hospital, 801 A.2d 602, 607 (Pa. Super. 2002), citing Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 304-305 (Pa. Super. 1999). Questions relating to the weight to be given certain evidence and the credibility of the evidence are entirely within the scope of the jury’s fact-finding position. Drevers v. Booz, 296 Pa. Super. 612, 440 A.2d 1244 (1981). It is the jury’s exclusive duty to resolve conflicting testimony and assign the weight to be given individual testimony. Smith v. Brooks, 394 Pa. Super. 327, 344, 575 A.2d 926, 935 (1990). Judgment n.o.v. should be entered only “in a clear case, and any doubts must be resolved in favor of the verdict winner.” Birth Center, 567 Pa. at 397, 787 A.2d at 383. (citation omitted)

Unreasonably Dangerous

In its first appellate argument, defendant contends that this trial judge erred in allowing the issue of whether the “molder’s boots” were unreasonably dangerous to go to the jury. That is, defendant argues that this trial judge erred in determining that, under the circumstances of this case, recovery would be justified.

Briefly, this trial judge notes that a claim of strict liability is a theory of recovery under which a plaintiff may obtain damages for harm caused by a product rendered unreasonably dangerous by a defective condition. Charlton v. Toyota Industrial Equipment, 714 A.2d 1043, 1046 (Pa. Super. 1998). Any recovery is predicated on the plaintiff’s ability to demonstrate not only the defective state of the product, but also that the defect was a substantial cause of the injury. Id. That is, “the concept of strict liability allows a plaintiff to recover where a product in a defective condition, unreasonably dangerous to the consumer or user, causes harm to the plaintiff.” Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 293, 696 A.2d 1169, 1172 (1997) (citations omitted); Restatement (Second) of Torts (1965), §402(A), comment i.

Here, for plaintiff to recover under his strict liability theory, he must prove that the molder’s boots were sold in a defective condition which rendered them unreasonably dangerous, and that this defective condition was the proximate cause of his injuries. See Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 979 (Pa. Super. 2005), citing Lewis v. Coffing Hoist Division, Duff-Norton Co. Inc., 515 Pa. 334, 340, 528 A.2d 590, 592 (1987); Azzarello v. Black Brothers Co. Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978). Aproduct is defective when it is not safe for its intended use because of a defect in its design or manufacture. Id. It can also be defective if it lacks adequate warnings of danger involved in its use. Fravel v. Suzuki Motor Co., 337 Pa. Super. 97, 104, 486 A.2d 498, 502 (1984).

In a product liability matter, it is a judicial function to decide whether, considering a plaintiff’s version of the facts, recovery would be justified; and only after this judicial determination is made is the cause of action submitted to the jury to determine whether the facts of the case support the allegations in the complaint. Schindler v. Sofamor lnc., 774 A.2d 765, 111 (Pa. Super. 2001), citing Azzarello, 480 Pa. at 558, 391 A.2d at 1026. When a judicial determination has been made that recovery would be justified, a jury may find a defect existed when the product left the supplier’s control lacking any element necessary to make it safe for its intended use, or possessing any feature that renders it unsafe for the intended use. Id. (citations omitted) Determining the product’s intended purpose is critical to the trial court’s legal conclusions whether the product can be deemed defective. Id. (citation omitted) The trial court will necessarily make different conclusions about the risk-utility of a product depending on whether the court construes the intended purpose of a product broadly or narrowly. If the trial court is to properly discharge its duty as a social philosopher and a risk-utility economic analyst, it must be afforded some measure of latitude to determine the intended purpose of a product. It follows that the intended use of a product is a conclusion of law, to be decided by the trial court. Id. Notwithstanding, the trial court is not bound by either party’s legal conclusions as to the intended purpose of a product, even if those conclusions are couched as averments of fact or presented as expert evidence. To hold otherwise would force trial courts (and reviewing courts) to accept unrealistic, generalized, or distorted views of a product’s purpose simply because they are presented as factual evidence. Id.

Here, as to the judicial determination of whether the “molder’s boots” involved in this matter were unreasonably dangerous for their use, this trial judge considered inter alia the following evidence:

• Plaintiff was employed in a foundry working around and with extremely hot material, namely, molten metal which was submitted to temperatures above 2800 degrees Fahrenheit;

• Plaintiff was required to wear molder’s boots while in the foundry. The molder’s boots recommended by the employer were made of leather with an elastic gorge covering the anide area. This elastic covering, which could easily be burned with an ignited match, was designed for easy kick off in the event any hot substance got inside the boot. These molder’s boots did not incorporate into its desin protection for its wearer against the hazards of burn injuries from molten metal;

• The boots at issue were advertised as “molder’s boots” for people who worked in a foundry. Defendant sold these boots knowing that these would be used in a foundry which dealt with melting and molten metal;

• Defendant held itself out as a “safety shoe specialist” and an expert on shoe technologies; and

• No warning on the use of these molder’s boots accompanied the boots.

It is undisputed that the intended use of these molder’s boots was as footwear for individuals who worked in a foundry. Although there are many kinds of foundries, defendant knew that Lancaster Malleable Foundry dealt with extremely hot melted iron and that someone, such as plaintiff, was responsible for transporting the melted cores in a bull from the furnace area to another section of the foundry where the molds were located. Defendant also knew that the temperature of the heated iron was approximately 2800°F. Defendant was aware of this process yet did not advise against the use of these molder’s boots in this plant nor of the inherent dangers of the use of these boots under the circumstances. Against the backdrop of evidence regarding the composition of these molder’s boots, their use in this particular foundry, and the legal standard established by case law, this trial judge opines that no error was committed in allowing the issue of whether the molder’s boots were defective to go to the jury for their determination. The facts in this case support this trial judge’s determination that the molder’s boots were unreasonably dangerous for use in this particular foundry which deals with extremely hot molten metal. It was for the jury to determine whether the molder’s boots were defective because these were unsafe for their intended use and/or because the “molder’s boots” lacked adequate warnings to someone, like plaintiff, that these should not be used around melting iron. In this trial judge’s opinion, defendant’s appellate contention is without merit.

Indemnification

Next, defendant asserts that it is entitled to common-law indemnity from Weinbrenner Shoe Company, the manufacturer of the molder’s boot, since Weinbrenner Shoe Company also failed to issue adequate warnings about the molder’s boots. This trial judge disagrees and notes that defendant waived this issue by never requesting a charge on indemnity. See: transcript of notes of testimony, volume 4, February 28, 2005, p. 46,11. 6-18.

Notwithstanding this trial judge’s opinion that defendant waived this argument, the right of indemnity arises only when a person or entity secondarily liable has been compelled, by reason of some legal obligation, to pay damages occasioned by the negligence of the party which should be primarily liable. Automatic Time & Control Co. v. ifm Electronics, GmBh, 410 Pa. Super. 437, 439, 600 A.2d 220, 222 (1991), citing Sirianni v. Nugent Bros., 509 Pa. 564, 506 A.2d 868 (1986). “Primary” liability can only rest upon a fault by the person or entity primarily responsible for a defect or a dangerous condition in the product. Id. (citation omitted) In order to determine primary responsibility, the court should look at factors such as active or passive negligence and knowledge of or opportunity to discover or prevent the harm. Id. In Pennsylvania, joint tort-feasors, including those in strict liability actions, are jointly and severally liable. Andalaro v. Armstrong World Industries, 799 A.2d 71, 81 (Pa. Super. 2002). If a defect is found to be a substantial factor in causing an indivisible injury, . . . then, absent a reasonable basis to determine which wrongdoer actually caused the harm, the defendants should be treated as joint and several tort-feasors. Stecher v. Ford Motor Co., 571 Pa. 311, 812 A.2d 553, 556 (2002). In this case, it is this trial judge’s opinion that defendant would not be entitled to any indemnity.

Furthermore, after carefully considering all the evidence, the jury determined that the molder’s boots were defective; that the defective nature of these boots was a substantial factor in bringing about plaintiff’s harm; and that both defendant and Weinbrenner Shoe Company failed to provide adequate warnings regarding the boots. However, the jury found that only defendant’s failure to provide adequate warning was a substantial factor in bringing about plaintiff’s harm.

In considering defendant’s active participation in the sale of the molder’s boots was, the evidence showed; to wit:

• Representative from defendant repeatedly approached Lancaster Malleable Foundry seeking their business;

• Defendant advertised the boots as “molder’s boots” to the management and employees of Lancaster Malleable Foundry;

• Defendant sent the purchasing director of Lancaster Malleable a letter specifically stating that the “molder’s boots” worked well in foundries;

• According to the president of Weinbrenner Shoe Company, defendant did not make any inquiries as to the “molder’s boots” being used in foundries; and

• Defendant never warned nor advised anyone that these boots were not intended as protective gear against molten metal in a foundry.

Relying on the totality of evidence presented, in this trial judge’s opinion, defendant was actively involved in the sale and promotion of these molder’s boots to plaintiff’s employer, and ultimately, to the employees. As a specialist in safety shoes, defendant understood the dangers of the use of these boots in a metal foundry, yet did not discourage their use. Defendant cannot now plea lack of responsibility for the injuries suffered by plaintiff. Therefore, in this trial judge’s opinion defendant is not entitled to indemnification.

Inadequate Warning

Defendant next argues that this trial judge erred in denying its motion for judgment n.o.v. on the basis that: (1) as a matter of law, defendant is not liable on the “inadequate warning” claim; (2) defendant had no duty to warn because the purported defect was “open and obvious”; and (3) the evidence established that, even if a proper warning would have been provided, the warning would not have been heeded.

Reiterating, to recover under a strict liability theory, a plaintiff must prove that the product was sold in a defective condition, rendering it unreasonably dangerous, and that the defect was the proximate cause of plaintiff’s injuries. A product can be considered “defective” for strict liability purposes if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. Davis v. Berwind Corporation, 547 Pa. 260, 267, 690 A.2d 186, 190 (1997), citing Mackowick v. Westinghouse Electric Corporation, 525 Pa. 52, 575 A.2d 100 (1990); see also, Restatement (Second) of Torts §402A, comment h.

As previously discussed, the determination of whether a warning is adequate and whether a product is “defective” due to inadequate warnings are questions of law to be answered by the trial judge. Id. Such warnings must be directed to the understanding of the intended user. Mackowick, 525 Pa. at 58, 575 A.2d at 103. (citations omitted) The duty to adequately warn does not require the manufacturer to educate a neophyte in the principles of the product. Weiner v. American Honda Motor Co., 718 A.2d 305, 310 (Pa. Super. 1998). A warning of inherent dangers is sufficient if it adequately notifies the intended user of the unobvious dangers inherent in the product. Mackowick, 525 Pa. at 56, 575 A.2d at 102. A seller must give such warning and/or instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Berkebile v. Brantly Helicopter Corporation, 462 Pa. 83, 100, 337 A.2d 893, 902 (1975), citing Restatement (Second) of Torts (1965), §402(A), comment h. The seller/manufacturer is liable for harm caused by a defective product even if he “has exercised all possible care in the preparation and sale of his product.” Carrecter v. Colson Equipment Co., 346 Pa. Super. 95, 102, 499 A.2d 326, 329 (1985). “It must be emphasized that the test of the necessity of warnings or instructions is not to be governed by the reasonable man standard . . . [or] what the ‘reasonable’ consumer could be expected to know, or what the ‘reasonable’ manufacturer could be expected to ‘foresee’ about the consumers who use his product.” Berkebile, 462 Pa. at 101, 337 A.2d at 902. (citations omitted) As a guarantor of its product, the duty to warn of any defects extends to the ultimate users and notice to a third party of such warnings will not serve to make the user aware of the defect in the product. Sheehan v. Cincinnati Shaper Co., 382 Pa. Super. 579, 585, 555 A.2d 1352, 1355 (1989).

As to this issue, the question for the jury to determine is whether the seller accompanied the product with sufficient instructions and warnings so as to make the product safe. Sheehan, 382 Pa. Super, at 585, 555 A.2d at 1355. The necessity and adequacy of warnings in determining the existence of a defect can and should be considered with a view to all the evidence. The jury should also view the relative degrees of danger associated with the use of the product since a greater degree of danger requires a greater degree of protection. Id. (citation omitted)

Plaintiff presented evidence that defendant represented itself as not only a retailer and supplier of the molder’s boots in question, but that it also was a “safety specialist” and “expert” on safety shoes. Defendant’s argument that it has no liability for failing to warn about the potential dangers of wearing these molder’s boots with elastic goring material in an area where molten metal is poured is not supported by the evidence. More so Lancaster Malleable’s safety manager, Tom Martone, opined that the molder’s boots sold by defendant were suitable for use in the foundry. (emphasis added) As safety experts in the shoe industry, defendant was in a position to advise Mr. Martone to the contrary and warn him of the limited protection these boots afforded around molten metal. The fact that Mr. Martone acknowledged awareness of the existence of a different boot that may have offered additional protection to plaintiff is irrelevant. What is relevant is whether plaintiff had adequate warnings regarding the use of the molder’s boots in the situation he found himself. The law of strict liability places the product itself on trial. Phillips v. Cricket Lighters, 576 Pa. 644, 655, 841 A.2d 1000, 1006 (2003). That is, the focus of this determination is on the product and not on the conduct of the manufacturer, Ellis v. Chicago Bridge & Iron Co., 376 Pa. Super. 220, 226, 545 A.2d 906, 909 (1988), or anyone else. The evidence supports the jury finding that plaintiff did not have adequate warning on the use of these boots under the circumstance of this case.

Defendant also argues that it had no duty to warn against open and obvious dangers. In response, plaintiff maintains that the facts of this case do not support the assertion that the inherent danger of the molder’s boots was open and obvious. Plaintiff further contends that the boots were advertised by Weinbrenner Shoe Company and marketed by defendant, a “safety shoe expert,” as being “molder’s boots,” and were sold by defendant to Lancaster Malleable as being suitable for use knowing that the employees would be working with molten metal. Relying on defendant’s representation, according to plaintiff, he was not aware of any protective limitation inherent to these boots when worn in the foundry.

Lastly, defendant posits that, even if a warning had been issued, it would not have been heeded since several witnesses testified that they used these boots primarily because of their quick “kick-off’ feature. Notwithstanding, plaintiff testified that, had the molder’s boots come with a warning to not wear these around molten metal, he would not have used them. (emphasis added) In light of this evidence, this trial judge is of the opinion that the issue of failure to warn was properly determined by the jury and, based on the evidence presented, the finding that defendant failed to warn of its inherent dangers should not be disturbed. It is the jury’s prerogative to assess the credibility of the witnesses, and clearly the jury chose to believe plaintiff’s testimony that he would not have worn these boots had he known of their inherent danger. As such, in this trial judge’s opinion, defendant’s request for a judgment n.o.v. is not warranted.

Assumption of Risk

Relying on the doctrine of voluntary assumption of the risk as an affirmative defense, defendant next argues that plaintiff should be barred from recovering any damage suffered. Generally, negligence concepts are inimical to strict liability claims and cannot be used to excuse a defective product and/or to reduce recovery by comparing fault. Kimco Development Corp. v. Michael D’s Carpet Outlets, 536 Pa. 1, 6, 637 A.2d 603, 606 (1993). However, where the defense offers evidence to show that the accident at issue was solely the result of the plaintiff’s conduct, and not the defective product, plaintiff’s negligence conduct is relevant and admissible for proving causation. Jara v. Rexworks, 718 A.2d 788, 793 (Pa. Super. 1999), appeal denied, 558 Pa. 620, 737 A.2d 743 (1999). That is, a user’s negligence is not relevant if the product defect contributed in any way to the harm suffered. Madonna v. Harley Davidson Inc., 708 A.2d 507, 509 (Pa. Super. 1998).

In its simplest form, the doctrine of assumption of risk provides that a plaintiff consents to relieve a defendant of an obligation to exercise care for plaintiff’s protection, and agrees to take a chance(s) of injury from a known or possible risk. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 504, 762 A.2d 339, 341 (2000). The Hughes court recognizes that some courts have advocated the abolition of the doctrine entirely except where expressly preserved by statute, in case of expressed assumption of risk, or strict liability cases brought under 402A Restatement. Hughes, 563 Pa. at 507, 762 A.2d at 342. See also, Howell v. Clyde, 533 Pa. 151, 162, 620 A.2d 1107, 1113 (1993) (holding that the assumption of risk doctrine is a valid affirmative defense in strict liability case pursuant to section 402A). However, the determination that a plaintiff has assumed the risk of injuries such that recovery is prevented should occur only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Barrett v. Fredavid Builders Inc., 454 Pa. Super. 162, 166, 685 A.2d 129, 131 (1996), citing Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (1995). Before the doctrine of assumption of risk will be applied to prevent recovery, the evidence must establish conclusively that the plaintiff was subjectively aware of the risk. Barrett, 454 Pa. Super, at 168, 685 A.2d at 131.

Here, defendant had an opportunity to prove its affirmative defense that plaintiff himself had assumed risk of using these molder’s boots. (emphasis added) Defendant presented evidence that plaintiff knew what the molder’s boots were made of, the boots’ components, that he had some reservation using these boots, that he questioned to himself the protection (or lack thereof) these boots offered him in the setting of the foundry, and that, despite his reservations, he used them when he did the task of bull-pulling.

In addition, this trial court judge charged on and defined for the jury the doctrine of assumption of risk and its consequences. Specifically, the jury was asked, in the verdict form, question number seven: “Do you find that the plaintiff knew of the defect, appreciated its danger and voluntarily chose to use the TG2118 boots [the molder’s boots] thus, assuming the risk of use?” After carefully evaluating the evidence and the totality of circumstances, the jury returned the verdict form wherein they answered “no” to question number seven.

In light of their findings, it is obvious that the jury did not accept defendant’s affirmative defense and, further, did not believe that plaintiff was subjectively aware of the inherent risks that the molder’s boots presented when working with or around hot iron. The issue of voluntariness of the risk and the plaintiff’s knowledge of the risks are for the jury’s determination. Long v. Norriton Hydraulics Inc., 443 Pa. Super. 532, 536, 662 A.2d 1089, 1091 (1995), appeal denied, Long v. Norriton Hydraulics Inc., 544 Pa. 611, 674 A.2d 1074 (1996). More so, when plaintiff’s employer recommended the use of these boots to its employees. A plaintiff’s use of dangerous machinery is dictated by the terms of his employment, and it would be absurd for this court to hold that he unreasonably and voluntarily used a product he was directed by his superiors to use. Di Salvatore v. United States, 499 F. Supp. 338, 346 (1980). As stated, questions relating to the weight to be given certain evidence and the credibility of the evidence are entirely within the scope of the jury’s fact-finding position. Drevers v. Booz, 296 Pa. Super. 612, 440 A.2d 1244 (1981). The jury’s exclusive duty is to resolve conflicting testimony and assign the weight to be given individual testimony. Smith v. Brooks, 394 Pa. Super. 327, 344, 575 A.2d 926, 935 (1990). Although defendant attempted to prove that plaintiff assumed the risk of using these molder’s boots, this defense was not accepted by the jury. Consequently, in this trial judge’s opinion, plaintiff is not precluded from recovering his damages.

Industry Guidelines

In its final argument, defendant claims that this trial judge incorrectly excluded evidence that the boots met OSHA and other industry guidelines and regulations; and erred in excluding relevant negligence concepts, such as comparative negligence and the sophisticated user concept. This trial judge disagrees since these allegations of error relate to negligence principles or conduct, which clearly are factors that have no place in a strict liability context. See Phillips, 576 Pa. at 655, 841 A.2d at 1006. Indeed, the Restatement (Second) of Torts, §402A, provides that the imposition of strict liability for a product defect is not affected by the fact that the manufacturer or other supplier has exercised all possible care. Id. This approach is militated by the fact that our strict liability law places the product itself on trial, and not the manufacturer’s conduct. Accord Kimco Development Corp. v. Michael D’s Carpet Outlets, 536 Pa. 1, 8, 637 A.2d 603, 606 (1993) which held that “we have been adamant that negligence concepts have no place in a strict liability action.” Evidence of due care by a defendant is both irrelevant and inadmissible in a products liability case since a manufacturer may be strictly liable even if it used the utmost care. Spino, 548 Pa. at 293, 696 A.2d at 1172. Industry standards and practices are also inadmissible in strict liability actions because they improperly inject negligence principles. Lewis v. Coffing Hoist Division, Duff-Norton Co. Inc., 515 Pa. 334, 343, 528 A.2d 590, 594 (1987).

Without a doubt, the case law and the Restatement of Torts cited supports this trial judge’s ruling that concepts of comparative negligence, “sophisticated user,” contributory negligence, and OSHA guidelines and other industry regulations, may not be asserted as a defense in strict product liability actions. Consequently, defendant’s argument that this trial judge erroneously excluded this particular evidence, all which encompass negligence concepts, is without merit. In this trial judge’s opinion no error was committed when denying defendant’s post-trial motion on these issues.

CONCLUSION

Based upon the above analysis and case law, this trial judge is of the opinion that no error was committed in denying defendant’s post-trial motion. This trial judge respectfully requests that defendant’s appeal be dismissed and that the orders dated May 5, 2005, be affirmed.

      .N.T. 2/24/05 at 11:3-21.

      . Id. at 17:2.

      . Id. at 20:7-21.

      . Id. at 11:9-14.

      . Id. at 20:21-25.

      . Id. at 14:12-15.

      . N.T. 2/24/05 at 17:9-16.

      . A molder is an individual who works in a foundry with metal castings and pours molten metal into various molds to fabricate a final product.

      . N.T. 2/24/05 at 15:10-18.

      . N.T. 2/22/05 at 133:16-19.

      . N.T. 2/25/05 at 8:15-16.

      . N.T. 2/22/05 at 113:2-5.

      . Id. at 113:20-24.

      . N.T. 2/24/05 at 17:9-16; 20:21-25.

      . Id. at 21:1-7.

      . Id. at 21:8-12.

      . N.T. 2/24/05 at 21:12-14.

      . Id. at 2/24/05 at 21:14-16; 21:23-24.

      . Id. at 21:22-24.

      . Id. at 22:9-12.

        .Id. at22:3-6.

      . Id. at 23:16-25.

      . Id. at 25:7-8.

      . Id. at 31:13-16.

      . Id. at 39:12-18; 45:21-25.

      . Id. at 40:8-9.

      . Prior to the commencement of trial, the claims against defendants Airgas Safety and Steel Grip Inc. were dismissed by motions for summary judgment; and the claims against defendants Airgas Inc., Stanco Manufacturing Inc., and Chicago Protective Apparel Inc. were dismissed by stipulation.

      . By a separate order dated May 5,2005, this trial judge granted, in part, plaintiff’s amended petition for delay damages and molded the verdict to reflect delay damages in the amount of $46,257.71 for a total verdict award of $854,591.03.

      . On June 3, 2005, defendant Saf-Gard filed an emergency motion for modification of security in order to effect a supersedeas pending appeal and for a temporary stay of any execution proceedings. This trial judge denied said motion by order dated June 9,2005.

      . This section of the Restatement (Second) of Torts has been adopted as the law of this Commonwealth, Schindler v. Sofamor Inc., 774 A.2d 765, 771 n.1 (Pa. Super. 2001), citing Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and provides as follows:
      “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      “(a) the seller is engaged in the business of selling such a product, and
      “(b) it is expected to and does reach the user or consumer without a substantial change in the condition in which it is sold.
      “(2) The rule stated in subsection (1) applies though
      “(a) the seller has exercised all possible care in the preparation and a sale of his product, and
      “(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

      . N.T. 2/23/05 at 14:21-23.

      . Id. at 89:4-13.

      . N.T. 2/22/05 at 115:2-9.

      . Id. at 113:12-19.

      . N.T. 2/25/05 at 60:21-25.

      . N.T. 2/23/05 at 12:15-19.

      . N.T. 2/23/05 at 14:21-23.

      . N.T. 2/22/05 at 120:15-19.

      . N.T. 2/22/05 at 120:20-25.

      . N.T. 2/22/05 at 123:12-25; 124:1-10.

      . N.T. 2/22/05 at 123:12-25; 124:1-10.

      . N.T. 2/22/05 at 117:6-9.

      . N.T. 2/25/05 at 158:21-24.

      . N.T. 2/23/05 at 17:5-9.

      . N.T. 2/28/05 at 121:21-23.

      . N.T. 2/22/05 at 115:5-9.

      . N.T. 2/24/05 at 16:8-11.

      . N.T. 2/22/05 at 16:12-13.

      . N.T. 2/22/05 at 62:19-25; 63:1-18.

      . N.T. 2/28/05 at 28:11-25; 29:1-20.

      . Id. at 40:20-23.

      . Id. at 49:20-25.

      . Section 388 of the Restatement (Second) of Torts, (Chattel known to be dangerous for intended use) otherwise known as the sophisticated user doctrine, provides as follows:
      “One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which it is supplied, if the supplier:
      “(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
      “(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
      “(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

      . In Phillips v. A-Best Products Co., 542 Pa. 124, 665 A.2d 1167 (1995), the court declined to discuss the “sophisticated user” defense in the context of strict liability law. See id. at 133, 665 A.2d at 1172.


author: RASPANTI, Member,

text:
    Office of Disciplinary Counsel v. Pierre

      Disciplinary Board Docket no. 193 D.B. 2003.
    June 13, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RASPANTI, Member,

Pursuant to

Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On December 9, 2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Alex Hugues Pierre. The petition charged respondent with violations of multiple Rules of Professional Conduct arising from allegations of misrepresentation to a client and opposing counsel, unlawful collection of a contingent fee, commingling of fiduciary funds and mishandling of several matters.

Disciplinary hearings were held on April 23 and June 3, 2004, before Hearing Committee 1.07, comprised of Chair Earl M. Forte, Esquire, and Members Lawrence A. Cabanel, Esquire and Patricia Furlong, Esquire. Respondent appeared pro se.

Following the submission of briefs by the parties, the Hearing Committee filed a report on December 17,2004, finding that respondent violated the Rules of Professional Conduct, and recommending that he be suspended for a period of three years.

Respondent filed a brief on exceptions and request for oral argument on January 7,2005. Petitioner filed a brief opposing respondent’s exceptions on January 26, 2005.

Oral argument was held on March 7, 2005, before a three-member panel of the Disciplinary Board chaired by Marc S. Raspanti, Esquire, with Louis N. Teti, Esquire and Laurence H. Brown, Esquire.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Office of Disciplinary Counsel, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania, and to prosecute all disciplinaiy proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2) Respondent, Alex Hugues Pierre, was admitted to practice law in the Commonwealth of Pennsylvania in 1993. His office is located at 1315 Walnut Street, 2nd Floor, Philadelphia PA 19107. He is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has no prior history of discipline.

Charge I — The Saunders Matter

(4) On July 9, 1998, Eula Mae Saunders was injured while a passenger on a SEPTA bus.

(5) On July 14, 1998, Ms. Saunders retained respondent by executing a 40 percent contingent fee agreement.

(6) By letter dated August 2,1998, Ms. Saunders provided respondent with a bill for medical treatment she received for injuries sustained in the accident.

(7) By letter dated June 28, 1999, sent to respondent, Lisa A. Charleston, Esquire:

(a) informed respondent that she had been retained by NovaCare Outpatient Rehabilitation to represent NovaCare in obtaining payment of their medical bill for services rendered to Ms. Saunders in the amount of $4,106.25;

(b) advised respondent that NovaCare had instructed her to monitor the matter;

(c) requested that respondent supply certain information regarding any civil case he may have filed on behalf of Ms. Saunders; and

(d) inquired when respondent expected that NovaCare would receive payment.

(8) Respondent received this letter.

(9) By letters dated November 17, 1999 and January 21, 2000, Ms. Saunders provided respondent with bills for medical treatment.

(10) By letter dated March 24, 2000, Ms. Charleston supplied respondent with a statement of account, pursuant to respondent’s request.

(11)By letter dated June 1,2000, addressed to SEPTA’s Claims Department, respondent advised that he represented Ms. Saunders, requested the opening of a claims file, and asked for the claim number so that Ms. Saunders’ medical provider could be compensated.

(12) Respondent failed to file a civil action on Ms. Saunders’ behalf for the third-party benefits on or before the expiration of the statute of limitations.

(13) By letter dated July 14, 2000, Ms. Cynthia E. Narvaez, claims supervisor with SEPTA, acknowledged receipt of respondent’s June 1,2000 letter and informed respondent that the statue of limitations had expired for third-party benefits.

(14) Respondent did not inform Ms. Saunders that he had failed to commence an action on her behalf for third-party benefits before the expiration of the statute of limitations.

(15) On October 19, 2000, Ms. Charleston spoke to respondent by telephone and told him that SEPTA had informed her office that Ms. Saunders’ case was closed. Respondent asked Ms. Charleston to send him the documerits she forwarded to SEPTA so that he could address this matter directly.

(16) SEPTA had erroneously closed its claim file, as Ms. Saunders’ claim for first-party benefits had not expired. SEPTA remained liable to NovaCare and had a duty to pay NovaCare directly for medical treatment received by Ms. Saunders, up to the statutory limit.

(17) By letter dated October 27,2000, Ms. Charleston:

(a) informed respondent that she had followed his advice of contacting SEPTA directly to obtain payment of NovaCare’s outstanding balance, only to be told by SEPTA that the case was closed and not approved for medical payment;

(b) enclosed documents she had supplied to SEPTA and requested that respondent arrange for payment of NovaCare’s outstanding invoice.

(18) By letter dated November 27,2000, addressed to Ms. Narvaez, respondent requested that SEPTA pay Ms. Saunders’ medical bill totaling $4,106.25, by tendering a check made payable to L.A. Charleston, and enclosed copies of documents from NovaCare that substantiated Ms. Saunders’ medical bill.

(19) By letter dated December 5, 2000, Ms. Narvaez enclosed forms for respondent to complete so that SEPTA could process Ms. Saunders’ claim for first-party benefits, and requested that respondent return the completed forms and affidavit executed by Ms. Saunders attesting to the absence of other applicable insurance.

(20) By letter dated December 5, 2000, Ms. Narvaez acknowledged receipt of respondent’s FPB application and affidavit and informed respondent that Denise Ferraro would be handling the claim for first-party benefits.

(21) By letter dated January 5,2001, Ms. Narvaez informed respondent that she had yet to receive certain pertinent information from Ms. Saunders and reminded respondent that she could not properly evaluate the claim without such information.

(22) On February 7, 2001, respondent had Ms. Saunders sign and complete several forms to process her claim for first-party benefits.

(23) By letter dated February 14, 2001, respondent enclosed a physician’s report to Ms. Saunders for completion.

(24) On July 9, 2001, respondent commenced a lawsuit against SEPTA to recover first-party benefits on behalf of Ms. Saunders.

(25) The complaint filed by respondent had attached to it a verification that was prepared and executed by respondent.

(26) By letter dated August 13, 2001, Harry J. Gerie, claims supervisor with SEPTA, extended an offer to settle Ms. Saunders’ claim for first-party benefits for $5,000.

(27) Without divulging that SEPTA had made an offer of $5,000, respondent, on August 20, 2001, called Ms. Charleston to inquire if her client would compromise Ms. Saunders’ bill of $4,106.25. NovaCare agreed to reduce its bill to $3,079.68.

(28) By letter dated August 20,2001, Ms. Charleston confirmed that NovaCare agreed to respondent’s request to compromise the bill by reducing it to $3,079.68.

(29) Respondent mailed to Ms. Saunders a release, which she signed and returned.

(30) The release did not state that Ms. Saunders was receiving $5,000 in settlement of her claim against SEPTA for first-party benefits.

(31) Respondent misled Ms. Saunders into believing that her settlement with SEPTA was for her claim for third-party benefits.

(32) Respondent mailed the General Release to Mr. Gerie and requested that he send respondent a $5,000 settlement check made payable to respondent and Ms. Saunders.

(33) Respondent filed with the prothonotary’s office an order to settle, discontinue, and end the first-party benefits lawsuit.

(34) On November 20,2001, Ms. Charleston spoke to respondent to inquire about the status of Ms. Saunders’ case and was told by respondent that the settlement had yet to be completed and that he would advise her when distribution was ready to be made.

(35) On November 26,2001, respondent received from SEPTA the $5,000 settlement check for first-party benefits made payable to respondent and Ms. Saunders.

(36) Respondent commingled his personal funds with fiduciary funds by depositing the settlement check into his checking account with First Union National Bank.

(37) NovaCare had an interest in not less than $3,079.68 of the $5,000 recovery because the funds were designated to satisfy any outstanding balances owed by Ms. Saunders to those medical providers who treated her for her injuries.

(38) Respondent failed to notify Ms. Charleston that he had received the $5,000 settlement check.

(39) Respondent had Ms. Saunders sign a document entitled “Approval of settlement and distribution.”

(40) The settlement sheet stated that respondent was withholding $2,000 for attorney’s fees and $300 for costs, and that the remaining amount of $2,700 was being distributed to Ms. Saunders.

(41) The settlement sheet was misleading in that it gave the false impression that the $5,000 was in settlement of Ms. Saunders’ claim for third-party benefits and it left blank the section indicating the amount withheld for medical bills, creating the impression that medical bills were paid or would be paid from another source.

(42) Respondent retained $2,300 for his own use and benefit.

(43) Pursuant to 75 Pa.C.S. § 1798(a), respondent was prohibited from charging and collecting a contingent fee for any services he provided in connection with Ms. Saunders’ claim for first-party benefits for SEPTA.

(44) Respondent handed Ms. Saunders a personal check in the amount of $2,700, which had the word “settlement” written on the memo section of the check.

(45) Respondent misled Ms. Saunders into believing that the aforementioned check represented her share of the settlement proceeds of her claim for third-party benefits.

(46) Respondent misappropriated monies intended for NovaCare by dividing between him and Ms. Saunders the proceeds of the $5,000 settlement check.

(47) Sometime before receiving the settlement check, respondent asked Ms. Saunders to provide him with her medical card so that he could address any outstanding medical bills.

(48) Ms. Saunders gave respondent her medical card, which respondent did not return.

(49) Respondent intended to use Ms. Saunders’ medical card to have the Commonwealth of Pennsylvania satisfy NovaCare’s outstanding balance for treatment rendered to Ms. Saunders for her accident-related injuries, so that neither Ms. Saunders and/or NovaCare would discover that respondent had misappropriated funds intended for payment of NovaCare’s bills, and so that Ms. Saunders would not discover that her third-party benefits claim had expired due to respondent’s inaction.

(50) On January 17, 2002, Ms. Charleston called respondent to inquire about the status of Ms. Saunders’ settlement.

(51) Respondent misrepresented to Ms. Charleston that he had not received any settlement monies from SEPTA.

(52) On February 11,2002, Ms. Charleston called respondent to inquire about the status of Ms. Saunders’ settlement.

(53) Respondent advised Ms. Charleston that Ms. Saunders’ case had settled and misrepresented that he was not sure why NovaCare’s outstanding balance had not been paid by SEPTA.

(54) On February 13,2002, Ms. Charleston called respondent to inquire about payment of Ms. Saunders’ outstanding balance.

(55) Respondent misrepresented to Ms. Charleston that he was not sure where the money went from Ms. Saunders’ settlement and that he had to check with his partner, after which he would call Ms. Charleston.

(56) Respondent did not inform his law firm that he missed the statute of limitations in Ms. Saunders’ matter.

(57) By letter dated April 25,2002, which was received by respondent’s law office on April 26, 2002, Office of Disciplinary Counsel advised respondent of Ms. Saunders’ complaint.

(58) Under cover of a letter dated May 6,2002, to Ms. Charleston, respondent forwarded to her a $2,300 check and represented that the check was for the “total remainder of the first-party funds collected,” and requested a response as to whether the amount would be accepted.

(59) On May 10, 2002, Ms. Charleston hand wrote a notation on respondent’s letter which stated that the file was closed. She initialed the notation and sent the letter to respondent by facsimile.

(60) On March 21,2002 and March 22,2002, respondent failed to maintain sufficient funds in the checking account equal to the minimum account of funds he was required to maintain on behalf of NovaCare.

Charge II — The Campbell Matter

(61) Respondent was retained by Derrick Campbell to represent him in two civil actions that were pending in the Philadelphia Court of Common Pleas; these actions were eventually consolidated.

(62) On February 2,1999, during the trial, respondent failed to introduce certain insurance contracts into evidence before resting Mr. Campbell’s case.

(63) On February 2,1999, The Honorable Thomas D. Watkins granted defendants’ motions for compulsory nonsuit and dismissed the case because of respondent’s failure to introduce the insurance contracts into evidence.

Aggravating Factors

(64) By letter dated November 1, 2002, respondent received notification of his transfer to inactive status by the Supreme Court of Pennsylvania, order dated November 1,2002, effective December 1,2002.

(65) From December 1,2002 to at least June 3,2004, respondent held himself out as a duly licensed attorney, by representing existing and new clients, including appearing as counsel in civil and criminal matters in Pennsylvania state courts, and by failing to take action to remove himself from the practice of law in accordance with the Pennsylvania Rules of Disciplinary Enforcement and Disciplinary Board Rules.

' (66) Since the effective date of his transfer to inactive status, respondent has been listed as counsel of record in at least nine legal matters in the Civil and Criminal Divisions of the Philadelphia County Court of Common Pleas.

(67) As of the date of the second disciplinary hearing in June 2004, respondent still had not brought himself into compliance with the order of the Supreme Court.

(68) Respondent was transferred back to active status in July 2004.

(69) Respondent’s hearing testimony was less than candid.

(70) Respondent did not show sincere remorse for his actions.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.1 — A lawyer shall provide competent representation to a client.

(2) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(3) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(4) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(5) R.P.C. 1.5(a) — A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

(6) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

(7) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, and upon request by the client or third person, shall render a full accounting regarding such property.

(8) R.P.C. 4.1(a) — In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

(9) R.P.C. 8.4(a) — A lawyer shall not violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.

(10) R.P.C. 8.4(b) — A lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

(11) R.P.C. 8.4(c) — A lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

Respondent has been charged with multiple counts of misconduct arising out of his representation of two clients, Eula Saunders and Derrick Campbell. Respondent’s actions are set forth with specificity in the above findings of fact. Following a disciplinary hearing, the Hearing Committee found that petitioner met its burden of proof as to all violations of the Rules of Professional Conduct charged in the petition for discipline, and recommended to this board that he be suspended for three years. Respondent filed exceptions to the Hearing Committee report and requested oral argument before a three-member panel of this board.

Respondent raised four issues at oral argument. He represented himself at oral argument. Respondent contends that denial of his motion for appointment of counsel constituted a denial of his Sixth Amendment right to counsel. The board finds no legal merit to this issue. Respondent failed to establish that he had a right to appointed counsel paid for by the board. A disciplinary proceeding is not a criminal proceeding necessitating all of the constitutional safeguards that attach when a person’s physical liberty is at stake. Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975).

Respondent contends that the Hearing Committee was not an independent arbiter and deprived him of his Sixth Amendment right to a trial before an impartial body. Respondent at no time before or during the proceedings in front of the Hearing Committee filed a motion for recusal of one or all of the panel members. The evidence offered by respondent to substantiate his claim consisted of findings made by the Hearing Committee which were perceived by respondent to be unfavorable to him, including the recommended disciplinary sanction of a three-year suspension. The factual findings made by the committee are supported by the evidence presented to the Hearing Committee. In writing its report, the committee provided detailed explanations of its factual and legal reasons for concluding that respondent’s misconduct warranted a long suspension. Its conclusion that a three-year suspension was appropriate was based upon the committee’s analysis of the facts and case law, and does not suggest any lack of impartiality.

Respondent argues that the Hearing Committee erred in making certain findings of fact which are not supported by the record and, furthermore, that the Hearing Committee improperly shifted the burden of proof to respondent to establish facts. The board concludes that respondent’s argument has no merit. The committee properly stated that the burden of proof was carried by petitioner, and went on to cite to the record at the end of each factual finding.

Respondent submits that the Hearing Committee’s recommendation of discipline is manifestly excessive and urges the board to impose a six-month period of suspension. Respondent cited numerous discipline cases to illustrate that three-year suspensions are reserved for demonstrable derelictions of duty involving large sums of money. Office of Disciplinary Counsel v. Atlas, 171 D.B. 2001, No. 919 Disciplinary Docket no. 3 (Pa. June 29, 2004) (three-year suspension for misappropriating $35,000 in firm funds, then refusing to make restitution); Office of Disciplinary Counsel v. Olshock, 28 D.B. 2002, No. 862 Disciplinary Docket no. 3 (Pa. Oct. 24, 2003) (three-year suspension where respondent misappropriated $18,000 in estate funds); In re Anonymous No. 145 D.B. 1991, No. 52 Disciplinary Docket no. 3 (Pa. Aug. 2, 1994) (three-year suspension for converting $20,775 from one client’s trust and $54,800 from another client’s trust).

Respondent cited several discipline cases wherein two-year suspensions were imposed by the Supreme Court. Office of Disciplinary Counsel v. Levin, 108 D.B. 2001, No. 883 Disciplinary Docket no. 3 (Pa. Feb. 18, 2004) (two-year suspension for mishandling entrusted funds, transferring funds from the escrow account to cover operating account overdrafts, and allowing escrow account to be out of trust in varying amounts of money for more than two years); In re Anonymous No. 46 D.B. 2000, 687 Disciplinary Docket no. 3 (Pa. Aug. 15,2001) (two-year suspension for converting $12,000 in funds of a nonprofit organization and making cash withdrawals from the organization’s funds totaling $2,000).

While it is at times difficult to appreciate the difference in factual circumstances between a two-year suspension and a three-year suspension, it is clear that the instant case does not involve the conversion of large sums of money as was present in the above cited cases resulting in three-year suspensions.

Respondent’s argument is persuasive that a three-year suspension is excessive; however, the board does not accept his contention that a six-month suspension is warranted. Respondent’s misconduct involved not only the complete mishandling of his clients’ matters, but deception toward his client, Ms. Saunders, and opposing counsel.

Respondent made rudimentary missteps in his handling of Ms. Saunders’ case, and very inartfully and dishonestly attempted to resolve the problems and cover his tracks. Aggravating factors present in this matter further suggest that a suspension longer than six months is necessary. Respondent has engaged in the unauthorized practice of law while on inactive status, he failed to show demonstrable remorse, and was found by the Hearing Committee to be less than candid in his testimony before the committee. Accordingly, the majority of the board is persuaded that a two-year suspension is justified by the facts and circumstances of this matter.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Alex Hugues Pierre, be suspended from the practice of law for a period of two years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Curran did not participate in the matter.

Board Members Sheerer, Newman, Rudnitsky and Saidis dissented for a three-year suspension.

Board Member Gephart dissented for a five-year suspension.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 17, 2005 adjudication.

ORDER

And now, August 30,2005, upon consideration of the report and recommendations of the Disciplinary Board dated June 13,2005, the petition for review and response thereto, it is hereby ordered that Alex Hugues Pierre be and he is suspended from the bar of this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.