author: WETTICK, A.J.,

text:
    Reunion Industries Inc. v. Doe 1

      C.P. of Allegheny County,
    no. GD06-007965.

      Stephen J. Del Sole and Bryan C. Devine, for plaintiff.

      Joseph J. Schwerha IV, for defendant Doe 1.
    March 5, 2007
   WETTICK, A.J.,

Plaintiff, a publicly traded corporation, has filed a complaint raising a cause of action for commercial disparagement against three Does, based on messages posted over the Internet on the Yahoo! Financial Bulletin Board. Plaintiff seeks a court order compelling AOL to identify Doe 1. Through a motion seeking a protective order, Doe 1 seeks a court order barring AOL from releasing this information on the ground that Doe 1 ’s identity is protected from disclosure by the First Amendment of the Federal Constitution. This motion is the subject of this opinion and order of court.

In 2000,1 considered a discovery request to obtain the name of an anonymous defendant who published allegedly defamatory statements on an Internet website in Melvin v. Doe, 149 Pitts. L.J. 12, 49 D.&C.4th 449 (2000). In the Melvin litigation, an unknown person published statements on a website which accused Judge Melvin of engaging in political activity that was inappropriate for a judge. She brought a defamation claim against the unknown speaker and sought to obtain the speaker’s identity through discovery. The defendant obtained counsel who sought a protective order that would prevent this discovery. While I rejected the defendant’s contention that the First Amendment absolutely protects anonymous speech, I ruled that the defendant was protected by a qualified privilege rooted in the First Amendment against compelled disclosure of anonymous sources in civil lawsuits and that a summary judgment standard would appropriately balance the right of one party to speak anonymously against the right of another party to protect his or her reputation.

I then gave the plaintiff the opportunity to establish a prima facie case. She produced credible evidence that would support a finding that the statement was made, the statement was false, the statement was defamatory, and she sustained actual harm. Consequently, I entered a court order permitting the plaintiff to discover the identity of John Doe.

The defendant filed an appeal to the Superior Court in which he contended that findings of impairment of reputation and standing in the community, personal humiliation, mental anguish, and suffering are an insufficient basis for compelling disclosure; he contended that I should have protected his anonymity unless the plaintiff could establish out-of-pocket monetary losses or medical treatment.

The Pennsylvania Superior Court ruled that my order denying the motion for a protective order is not a collateral order subject to immediate appeal. 789 A.2d 696 (Pa. Super. 2001). The Pennsylvania Supreme Court rejected the Superior Court’s ruling and remanded the case to the Superior Court to consider the defendant’s constitutional question, namely whether the First Amendment requires a public official defamation plaintiff to establish a prima facie case of actual economic harm prior to obtaining discovery of an anonymous defamation defendant’s identity. 575 Pa. 264, 836 A.2d 42 (2003). The appeal was withdrawn prior to any ruling by the Superior Court.

In the present case, plaintiff contends that my use of a summary judgment standard to protect anonymous speech should be limited to criticism of public officials. However, it cites no cases supporting this position that case law governing anonymous speech differentiates between criticism of public officials and other types of speech such as commercial disparagement. Also, I am not aware of any line of cases holding that commercial disparagement is less valuable speech or that it is not of equal First Amendment importance. Plaintiff has not offered and I am not aware of any justification for giving less protection, than a summary judgment standard, to anonymous speech involving information that may affect the value of a publicly traded company.

At the time I made my rulings in Melvin v. Doe, the parties did not cite, and I was not aware of, any reported cases that had addressed the issue of whether the First Amendment protects the anonymity of persons who anonymously publish an allegedly defamatory statement on an Internet website. Following my mling, two appellate court cases have addressed the same issue and have ruled that a plaintiff who cannot produce evidence supporting a prima facie case may not learn the identity of a Doe defendant.

In Dendrite International Inc. v. John Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), the corporation commenced a lawsuit against several John Does based on allegedly defamatory comments posted on an Internet message board. Through discovery, the plaintiff sought to compel the Internet service provider to disclose the identity of the John Doe defendants. John Doe No. 3 opposed on the ground that his right to speak anonymously was protected by the United States and New Jersey Constitutions.

The trial court ruled that both the First Amendment protections of the Federal Constitution and the New Jersey Constitution protect the anonymity of a speaker unless the party seeking to ascertain the identity of the speaker can establish a prima facie case of defamation which, for corporation defamation, requires a showing of actual damages. The trial court denied the motion of the plaintiff-corporation to compel discovery because the plaintiff-corporation had failed to offer evidence which would support a finding that the plaintiff-corporation was harmed.

The New Jersey Superior Court affirmed the ruling of the trial court that the plaintiff was not entitled to discover the identity of the anonymous speaker because of its failure to offer evidence that would support a finding of actual harm. The court ruled that the following guidelines govern discovery seeking disclosure of the identity of anonymous Internet posters who are sued for allegedly violating the rights of individuals, corporations, or businesses:

“The complaint and all information provided to the court should be carefully reviewed to determine whether plaintiff has set forth aprima facie cause of action against the fictitiously named anonymous defendants. In addition to establishing that its action can withstand a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to R. 4:6-2(f), the plaintiff must produce sufficient evidence supporting each element of its cause of action, on a prima facie basis, prior to a court ordering the disclosure of the identity of the unnamed defendant.

“Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.” Id. at 760-61.

In Doe No. 1 v. Cahill, 884 A.2d 451 (De. 2005), an elected council member and his wife brought a defamation action against John Doe defendants based on anonymous statements posted on an Internet weblog. Through a discovery request that was the subject of this litigation, the plaintiffs sought to learn the identity of John Doe No. 1 from Comcast, which owned John Doe No. 1 ’s IP address. Doe sought a protective order to prevent the plaintiffs from obtaining his identity.

The trial court, applying a good faith standard — a showing of a good faith basis upon which to bring the action and a showing that the information sought is related to the claim and cannot be obtained from any other source — denied Doe’s motion for a protective order. The Delaware Supreme Court reversed on the ground that the trial court applied an incorrect standard. It held that a defamation plaintiff must satisfy a summary judgment standard before obtaining the identity of an anonymous defendant: “We, accordingly, hold that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” Id. at 460.

Also see Best Western International Inc. v. Doe, 2006 WL 2091695 (D. Ariz. 2006), which applied a summary judgment standard.

In Klehr Harrison Harvey Bransburg & Ellers LLP v. JPA Development Inc., 2006 WL 37020 (C.P. Phila. 2006), the Philadelphia Common Pleas Court concluded that the implementation of new standards for cases involving a plaintiff’s effort to learn the identity of anonymous Internet posters will likely do more harm than good. The court ruled that a balancing of John Doe’s First Amendment rights against the plaintiff’s rights to the information sought is built into the Commonwealth’s existing civil procedure. Consequently, the defendant’s motion for a protective order should be analyzed under existing Pennsylvania discovery rules.

Also see In re Subpoena Duces Tecum to America Online Inc., 2000 WL 1210372 (Va. Cir. Ct. 2000), reversed on other grounds, America Online Inc. v. Anonymous Publicly Traded Company, 542 S.E.2d 377 (2001), where a Virginia trial court applied a good faith standard to a request to learn the identity of John Doe defendants.

Upon consideration of the case law decided after my rulings in Melvin v. Doe, I continue to believe that a summary judgment standard is the appropriate standard for balancing the First Amendment protections of anonymous speech against interests furthered through state libel laws.

For these reasons, I am entering a court order granting Doe 1 ’s motion for a protective order barring further discovery to learn the identity of Doe 1. However, plaintiff may request that I rescind this court order if plaintiff is able to make a prima facie showing that (1) the statements on the bulletin board were false; (2) the publisher either intended the publication to cause pecuniary loss or reasonably should have recognized that the publication would result in pecuniary loss; and (3) pecuniary loss did, in fact, result.

For these reasons, I enter the following order of court.

ORDER

On March 5, 2007, upon consideration of Doe 1 ’s motion for a protective order, it is hereby ordered that until further order of court, plaintiff is barred from obtaining from America Online Inc. any information relating to the identity of Doe 1.

      . Yahoo! Inc. identified AOL as being the Internet provider for Doe 1.

      .1 am not aware of any other appellate court case law addressing this issue.

      . According to footnote 4, federal law (47 U.S.C. §551(c)(2)) requires an Internet service provider to furnish notice to the Internet service subscriber before it can disclose the identity of its subscriber to a third party. Id. at 455 n.4.

      . The court rejected the additional requirement in Dendrite that the trial court must balance the defendant’s First Amendment rights against the strength of the plaintiff’s prima facie case. It stated that the summary judgment test is the balance.

      . A cause of action for commercial disparagement also requires a showing that the publisher either knows that the statement is false or acts in disregard of its truth or falsity. See Pro Golf Manufacturing Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 246, 809 A.2d 243, 246 (2002). Plaintiff cannot establish this requirement without knowing the identity of the publisher. Thus, if plaintiff must meet this requirement, I would be giving absolute First Amendment protection to anonymous speech in commercial disparagement claims. For the reasons that I have discussed, this would be a balance that fails to take into consideration the interests protected through state libel law.


source: Caselaw Access Project

author: PARISI, J.,

license: Public Domain

text:
    Commonwealth v. Shuman

      C.P. of Berks County,
    no. CP-06-CR-2452/05.

      Jeffrey Zielinski, assistant district attorney, for Commonwealth.

      Eric J. Taylor, for defendant.
    March 13, 2007
   PARISI, J.,

On August 17, 2006, a jury found the defendant guilty of solicitation to commit murder and solicitation to commit kidnapping. On October 6,2006, defendant was sentenced to a total term of confinement of not less than six years nor more than 15 years imprisonment in a state correctional facility. On November 9, 2006, this court denied defendant’s post-sentence motions for relief.

On December 8, 2006, the defendant filed a notice of appeal to the Superior Court of Pennsylvania. This court ordered defendant to file a concise statement of matters complained of on appeal. On December 13,2006, this court granted defendant an extension of time to file his concise statement. On January 23,2007, defendant filed his concise statement of matters complained of on appeal. The following issues are set forth for appellate review:

(1) The lower court erred by denying appellant’s motion to suppress the Commonwealth’s two April 14,2005 wiretaps, where the Commonwealth’s wiretap search warrant application was based upon illegal recordings done by Melissa Landrio that violated Pennsylvania law because both parties did not consent to the recordings and because the application did not include the criminal record of David Short.

(2) The lower court erred by denying appellant’s motion to suppress the Commonwealth’s two April 14,2005 wiretaps, because the Commonwealth failed to comply with the custodial provisions of the Wiretap Act because its tapes were in the possession of Trooper Hess, who was not certified under the Wiretap Act.

(3) The lower court erred by denying appellant’s motion to suppress the Commonwealth’s two April 14,2005 wiretaps, because Trooper Volchko disposed of one of the recordings on his own without providing it to the assistant district attorney.

(4) The lower court erred by denying appellant’s motion to suppress Melissa Landrio’s April 14, 2005 wiretaps, because David Short was by then working as an agent of the Commonwealth.

(5) The lower court erred by denying appellant’s motion to suppress the two April 14, 2005 wiretaps by the Commonwealth, because the consent was provided for the Berks County detectives to perform the wiretaps, not the Pennsylvania State Police, who ultimately performed the wiretap recordings.

(6) The lower court erred by denying appellant’s motion to suppress photographs, Kodak picture paper, and a digital camera, respectively items 2, 11 and 12 in the search warrant receipt/inventory, which were seized by the police pursuant to the execution of the search warrant, where these items were not identified in the search warrant and could not be otherwise seized.

(7) The trial court erred in admitting David Short’s and Corporal Rafael Rodriguez’ speculative opinion testimony that appellant had changed his perspective in one of his conversations, that appellant had changed his tone from a previous conversation, and that appellant wanted a person killed. J.T. at 152-62, 174-260.

(8) The trial court erred in permitting Glenn Muthersbaugh to testify where his testimony was irrelevant and the trial court erred specifically where it permitted Muthersbaugh to answer the Commonwealth’s question of Muthersbaugh’s actions in response to hearing that somebody was trying to arrange for his death, which was also irrelevant. J.T. at 54-59, 63-64.

(9) The trial court erred in denying appellant’s proposed jury charge 3.02(a), corpus delecti, to instruct the jury that it must first determine that a crime had occurred before it could consider appellant’s statement. J.T. at 387-91,418-19.

(10) The sentencing court abused its discretion by entering a manifestly excessive and clearly unreasonable sentence for criminal trespass, where the sentence violated the Sentencing Code, where the trial court ignored the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the appellant’s individual rehabilitative needs and his mitigating circumstances, including the facts of the case, and where the sentences were within the sentencing guidelines but the application of the guidelines would be clearly unreasonable.

The defendant’s first claim on appeal is that the lower court erred by denying appellant’s motion to suppress the Commonwealth’s two April 14,2005 wiretaps, where the Commonwealth’s wiretap search warrant application was based upon illegal recordings done by Melissa Landrio that violated Pennsylvania law because both parties did not consent to the recordings and because the application did not include the criminal record of David Short.

In relevant part, pursuant to the Pennsylvania Wiretapping and Electronic Surveillance Control Act, an assistant district attorney designated in writing by the district attorney of the county wherein the suspected criminal activity has been, is, or is about to occur, may make written application for an order authorizing the interception of a wire, electronic or oral communication by the investigative or law enforcement officers or agency having responsibility for an investigation involving suspected criminal activities when such interception may provide evidence of the commission of any of certain offenses, including solicitation to commit criminal homicide, or may provide evidence aiding in the apprehension of the perpetrator or perpetrators. 18 Pa.C.S. §5708.

Here, Trooper William Volchko made a written request for approval of a wiretap authorization based upon information that he and Trooper Hess had received from Melissa Landrio. Landrio had taped a series of phone conversations while the defendant was in Pennsylvania and the other party, David Short, was likely in Texas. Landrio was in New York when she taped the conversations and she testified that no one ever told her to make the tapes; she began taping because she was fearful that someone was going to be hurt. Mr. Short consented to being taped.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act protects people from unlawful interceptions of communications. The statute requires that for a person to intercept a wire, electronic or oral communication, all parties to the communication must have given prior consent to such interception. 18 Pa.C.S. §5704(4). Chapter 16 of the Texas Penal Code requires that one of the parties to a communication has given consent prior to the interception. V.T.C.A., Penal Code 16.02(c)(3)(A). New York Penal Law holds that the recording of a telephonic communication by a person other than a sender or receiver, without the consent of either the sender or receiver, is a felony. This court finds that the law of New York, where the recordings were made, is the applicable law. As both David Short and Melissa Landrio consented to the taping, this meets the one party consent require-merits of New York law and therefore was legal. The application was sufficient and there was no error.

Defendant’s second claim on appeal is that the lower court erred by denying appellant’s motion to suppress the Commonwealth’s two April 14, 2005 wiretaps, because the Commonwealth failed to comply with the custodial provisions of the Wiretap Act because its tapes were in the possession of Trooper Hess, who was not certified under the Wiretap Act.

Interception authorized under 18 Pa.C.S. §5704(2)(ii) is subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and indicates that the attorney general, deputy attorney general, district attorney or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained.

The tapes recorded in this matter on April 14,2005, a tape-recorded telephone call and the conversation between defendant and Rodriguez were not given to the district attorney until April 28, 2005. From the time of the recording until the delivery to the district attorney, the tapes were held in the possession of State Police Trooper Hess.

The Wiretap Act provides for the exclusion of any wire, electronic or oral communication, or evidence derived therefrom on enumerated grounds. 18 Pa.C.S. §5721.1 (b). However, the applicable statutory exclusionary rule, 18 Pa.C.S. §5721.1(b), does not enumerate violation of the custody requirement for one-party consensual intercepts. 18 Pa.C.S. §5704(2)(ii). Moreover, section 5704(2)(ii) designates the prosecutor who approved the interception as the custodian of the recordings; there is no requirement that he or she take physical possession at any specified time, contrasting the explicit requirements respecting transfer and custody of recordings involving non-consensual interceptions. See 18 Pa.C.S. §5714(b); Commonwealth v. Spangler, 570 Pa. 226, 809 A.2d 234 (2002).

The interceptions presently before the court were consented to by one of the parties and were therefore obtained pursuant to the exception in section 5704(2)(ii). Although such provision requires the prosecutor authorizing the interception serve as the custodian of the recorded evidence, it does not impose a time frame for transfer or further elaborate upon this obligation. This omission, while in contrast to other statutory provisions that impose time constraints, see e.g., 18 Pa.C.S. §5714(b) (requiring immediate transfer and sealing for non-consensual interceptions); 18 U.S.C. §2518(8)(a) (same), is consistent with the different degrees of caution to be exercised based upon the existence of consent. For non-consensual interceptions, the immediacy and sealing requirements are deemed necessary to protect privacy/ confidentiality, prevent editing or alteration, and aid in establishing a chain of custody. On the other hand, while concern with the integrity of recorded evidence also exists in the context of one-party consensual interceptions, the consent of a party to the communication lessens the constitutional concerns related to privacy as compared to those which pertain to non-consensual interceptions. See Spangler, 570 Pa. 226, 809 A.2d 234; Commonwealth v. White, 401 U.S. 745, 751-52, 91 S.Ct. 1122, 1126 (1971). The absence of a provision for the immediate transfer and sealing of recorded evidence for one-party consensual interceptions under section 5704(2)(ii) is therefore consistent with constitutional privacy considerations. Although the best course of action would have been prompt delivery to the district attorney, the delay is not sufficient to require suppression. Therefore, there was no error in denying suppression.

Defendant’s third claim on appeal is that the lower court erred by denying appellant’s motion to suppress the Commonwealth’s two April 14, 2005 wiretaps, because Trooper Volchko disposed of one of the recordings on his own without providing it to the assistant district attorney.

Here, the state police made, or attempted to make, two recordings of the second conversation on April 14,2005. One recording was the cassette tape made from the body-recorder and the second recording was a recorder backup tape attempted from a transmission to the surveillance officer’s car. The transmitter tape recording was never given to the assistant district attorney who authorized the interception as required by 18 Pa.C.S. §5704(2)(ii). The police officer testified that the tape was destroyed because it was inaudible and thought to be useless. In addition, the tape was only made as back-up of the recorder on the undercover officer’s person and was primarily for safety purposes to ensure the officer was not in danger. Based upon the officer’s testimony of the tape’s condition and the fact that the tape reported by the trooper was inaudible and was merely an insurance copy of the body recorder in the event it did not work, the existence of the body-recorded tape is sufficient evidence of the conversation and neither the trooper’s disposal of the tape, nor this court’s denial of suppression of the body wire recording were in error.

Defendant’s fourth claim on appeal is that the lower court erred by denying appellant’s motion to suppress Melissa Landrio’s April 14, 2005 recordings, because David Short was by then working as an agent of the Commonwealth.

The state and federal constitutional limitations on unreasonable searches and seizures apply exclusively to the conduct of persons who are acting as instruments or agents of the state. U.S.C. Const. Amend. 4. “Individual acts do not become imbued with the character of governmental action merely because they are later relied upon and used by the government in furtherance of governmental objectives.” Commonwealth v. Hawkins, 549 Pa. 352, 377, 701 A.2d 492, 505 (1997). “The mere use by police and prosecutors of the results of an individual’s actions does not serve to ‘ratify’ those actions as conduct of the state.” Commonwealth v. Corley, 507 Pa. 540, 547, 491 A.2d 829, 832 (1985).

In Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033 (2002), the court held that the mere fact that a murder defendant’s accomplice, Mathias, gave statements to the Commonwealth and ultimately cooperated with the prosecution at defendant’s trial did not establish that the accomplice was acting as an agent of the Commonwealth in writing letters to the defendant for purposes of determining admissibility of defendant’s responses to such letters. In Harris, it was Mathias’ uncontroverted testimony that it was his idea alone to copy the letters and turn the copies over to the district attorney.

Similarly, the witness here, David Short, explicitly testified that he did not ask for anyone’s permission to tape record his phone conversations with defendant. Even further, Short testified that Trooper Hess instructed Short to refrain from any tape recording once police became involved. As such, he was not an agent of the Commonwealth and this claim should be denied.

Defendant’s fifth claim on appeal is that the lower court erred by denying appellant’s motion to suppress the two April 14,2005 wiretaps by the Commonwealth, because the consent form indicated that consent was provided for the Berks County detectives to perform the wiretaps, not the Pennsylvania State Police, who ultimately performed the wiretap recordings.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act protects people from unlawful interceptions of communications. Under the applicable statute in this instance, it is required that one of the parties to the communication has given consent prior to the interception. 18 Pa.C.S. §5704(2)(ii).

Here, the Commonwealth tape-recorded two communications between Police Corporal Raphael Rodriguez and defendant on April 14,2005, under the consent provisions of 18 Pa.C.S. §5704(2)(ii). Raphael Rodriguez signed a waiver form giving consent to be taped. However, the consent form gave consent to allow the Berks County detectives permission to record the calls, rather than the state police. This “form” error does not invalidate Raphael Rodriguez’ consent to be taped. As Rodriguez unequivocally testified, his consent would not have changed given the mistake on the waiver form. Additionally, at the beginning of each tape recording, Rodriguez verbalized his consent to be taped. Based upon the totality of the circumstances, this court finds Rodriguez’ consent to be taped was based upon a voluntary waiver and was valid consent. As such, the tape-recorded communications between Rodriguez and defendant on April 14, 2005, satisfy the requirement of consent of one of the parties as required under 18 Pa.C.S. §5704(2)(ii). The essential requirements of (1) consent by one party, and (2) prior approval from the district attorney or appropriate representatives of the district attorney, were met. There was no error.

Defendant’s sixth claim on appeal is that the lower court erred by denying appellant’s motion to suppress photographs, Kodak picture paper, and a digital camera, respectively items 2,11 and 12 in the search warrant receipt/inventory, which were seized by the police pursuant to the execution of the search warrant, where these items were not identified in the search warrant and could not be otherwise seized.

Courts have held that, while items to be seized shall be set forth as precisely as can be, an exact description may be impossible. Commonwealth v. Barba, 314 Pa. Super. 210, 460 A.2d 1103 (1983). A generic description may suffice. Id. Further, although it is often stated that only articles specifically described can be seized, it has been held in this court and others that ‘it is permissible to seize things other than those described in the search warrant if they have a reasonable relation to the purpose of the search.’ See United States v. Russo, 250 F. Supp. 55 (E.D.Pa. 1966); United States v. Joseph, 174 F. Supp. 539, 544 (E.D. Pa. 1959), aff’d, 278 F.2d 504 (3d Cir. 1960), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); see also, Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539 (1961), cert. denied, 375 U.S. 888, 84 S.Ct. 167, 11 L.Ed.2d 118 (1963).

In this case, items related to the HP photo-smart digital camera and digital images were seized. Each pertained to the criminally related activities. They were therefore properly considered instrumentalities of the crime, and had a sufficient relation to the purpose of the search to allow their seizure and admission into evidence without being specifically described in the warrant. Therefore, the motion to suppress was properly denied. There was no error.

Defendant’s seventh claim on appeal is that the trial court erred in admitting David Short’s and Corporal Rafael Rodriguez’ speculative opinion testimony that appellant had changed his perspective in one of his conversations, that appellant had changed his tone from a previous conversation, and that appellant wanted a person killed. J.T. at 152-62, 174-260.

Similarly, defendant’s eighth claim on appeal is that the trial court erred in permitting Glenn Muthersbaugh to testify where his testimony was irrelevant and the trial court erred specifically where it permitted Muthersbaugh to answer the Commonwealth’s question of Muthersbaugh’s actions in response to hearing that somebody was trying to arrange for his death, which was also irrelevant. J.T. at 54-59, 63-64.

Generally, “All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401.

In particular, evidence is admissible if it is relevant and its probative value is not outweighed by the danger of unfair prejudice. Pa.R.E. 401 and 403. The admissibility of evidence is vested in the sound discretion of the trial court and is not reversed unless there is an abuse of discretion. Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super. 2003). Atrial court abuses its discretion when it overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will when determining whether to admit evidence. Id. Each of the above witnesses’ testimony was certainly appropriate and neither speculative nor irrelevant. Therefore, there was no abuse of discretion.

Defendant’s ninth claim on appeal is that the trial court erred in denying appellant’s proposed jury charge 3.02(a), corpus delecti, to instruct the jury that it must first determine that a crime had occurred before it could consider appellant’s statement. J.T. at 387-91, 418-19.

Generally, the charge to the jury must be read as a whole in order to determine if it was fair and not prejudicial. Commonwealth v. Rodgers, 459 Pa. 129, 327 A.2d 118 (1974); Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973); Commonwealth v. Franklin, 438 Pa. 411, 265 A.2d 361 (1970).

In reviewing a challenge to the trial court’s refusal “to give a specific jury instmction, it is the function of this court to determine whether the record supports the trial court’s decision.” Lockhart v. List, 542 Pa. 141, 147, 665 A.2d 1176, 1179 (1995). A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. Potochnick v. Perry, 861 A.2d 277, 283 (Pa. Super. 2004). A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. Atwell v. Beckwith Machinery Co., 872 A.2d 1216, 1222 (Pa. Super. 2005); Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa. Super. 2005). The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal. Commonwealth v. Newman, 382 Pa. Super. 220, 236, 555 A.2d 151, 158-59(1989).

Here, even if a determination is made that the instructions requested by appellant were not reasonably covered in the charge, this court is of the opinion that any omissions did not affect the outcome of the case. The court addressed appellant’s proposed points for charge and concluded that a reading of proposed instruction 3.02(a), corpus delecti, was not necessary. In the charge, the trial judge referred numerous times to the Commonwealth’s burden to prove each and every element of the crime beyond a reasonable doubt. Never did the trial court suggest any other burden of proof or that the defendant bore any burden whatsoever. Based on the charge as a whole, we find it extremely unlikely that the jury perceived that the Commonwealth’s burden was ever less than beyond a reasonable doubt. The court’s charge accurately reflected the law and was sufficient to guide the jury in its deliberations. See Cruz v. Northeastern Hospital, 801 A.2d 602, 611 (Pa. Super. 2002). Accordingly, appellant’s ninth claim of trial court error fails.

Defendant’s tenth and final claim on appeal is that the sentencing court abused its discretion by entering a manifestly excessive and clearly unreasonable sentence for criminal trespass, where the sentence violated the Sentencing Code, where the trial court ignored the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the appellant’s individual rehabilitative needs and his mitigating circumstances, including the facts of the case, and where the sentences were within the sentencing guidelines but the application of the guidelines would be clearly unreasonable.

Initially, this court notes that the defendant was not charged or sentenced for criminal trespass as challenged by defense counsel on appeal. Here, the defendant has been convicted and sentenced for criminal solicitation to commit murder. In this regard, this court addresses the claim of an unreasonable sentence in relation to the applicable charge.

In challenging the discretionary aspects of a sentence, an appellant must present a substantial question. 42 Pa.C.S. §9781(b). Appellate courts decide if a substantial question is raised on a case-by-case basis. Commonwealth v. Urrutia, 439 Pa. Super. 227, 236, 653 A.2d 706, 710 (1995). A substantial question will be found when “an appellant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code or contrary to fundamental norms which underlie the sentencing process.” Id. at 236, 653 A.2d at 710. Usually, a “claim of excessiveness when the sentence is within the statutory limits is not a substantial question.” Commonwealth v. Nixon, 718 A.2d 311, 315 (Pa. Super. 1998). However, even when a sentence is within the statutory guidelines a substantial question can be raised as to excessiveness if the sentence is “so manifestly excessive as to [constitute] too severe a punishment.” Commonwealth v. Mouzon, 571 Pa. 419, 430, 812 A.2d 617, 624 (2002).

In this case, the defendant claims that that sentencing court abused its discretion in sentencing defendant to a manifestly excessive and unreasonable sentence. If the appellate court finds a substantial question has been raised, the standard for review is well settled. “Sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed ... absent an abuse of discretion.” Commonwealth v. Harclerode, 768 A.2d 1132, 1134 (Pa. Super. 2001), quoting Commonwealth v. Adams, 760 A.2d 33, 39 (Pa. Super. 2000). Only when a sentence is clearly unreasonable may an appellate court reverse a sentence that falls within the statutory guidelines. Commonwealth v. Fenton, 750 A.2d 863, 867 (Pa. Super. 2000), citing Commonwealth v. Koren, 435 Pa. Super. 499, 504, 646 A.2d 1205, 1208 (1994). When reviewing the discretionary aspects of the sentence, the appellate court will reverse only if the “appellant can demonstrate a manifest abuse of discretion by the sentencing judge.” Commonwealth v. Hermanson, 449 Pa. Super. 443, 447, 674 A.2d 281, 283 (1996), quoting Commonwealth v. Koren, supra, at 504, 646 A.2d at 1208. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that “the judgment exercised [was] manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will.” Commonwealth v. Kocher, 529 Pa. 303, 306, 602 A.2d 1308, 1310 (1992).

When reviewing a sentence, the appellate court gives great weight to the sentencing court’s decisions because the sentencing court is in the best position to view the character of the defendant, whether the defendant displayed remorse, defiance, or indifference, and the overall effect and nature of the crime. Commonwealth v. Viera, 442 Pa. Super. 348, 360, 659 A.2d 1024, 1030 (1995). “[T]he trial court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and the court must impose a sentence that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.” Commonwealth v. Guth, 735 A.2d 709, 711 (Pa. Super. 1999), quoting Commonwealth v. Burkholder, 719 A.2d 346, 350 (Pa. Super. 1998). Where the record strongly indicates “that the lower court was aware of the relevant sentencing considerations and attempted to weigh them appropriately, appellate courts are not free to interfere arbitrarily.” Commonwealth v. Semuta, 386 Pa. Super. 254, 261, 562 A.2d 894, 897 (1989), citing Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988). If the record reveals the judge set forth reasons for sentencing and considered the particular circumstances of the case, the court’s discretion should not be disturbed. Commonwealth v. McKiel, 427 Pa. Super. 561, 564, 629 A.2d 1012, 1014 (1993).

The court did review the pre-sentence investigation report in this case. The defendant had a prior record score of zero. With regard to Count 1, criminal solicitation to commit murder, the offense gravity score is 13, which would make the standard range 60 months to 78 months, aggravated to 90 months, mitigated to 48 months. The defendant’s sentence of not less than six nor more than 15 years imprisonment in a state correctional facility is within the standard guideline range. The reason(s) for the sentence in this matter are the sentencing guidelines, the defendant’s age and his apparent health and consideration of the arguments and testimony presented at the time of the sentencing hearing. (N.T. sentencing hearing, 10/6/06, pp. 26-27.) Given all the above, the sentence imposed was within the discretion of the court.

For the foregoing reasons, this court respectfully requests that the defendant’s appeal be denied.

      . This court notes that the defendant was neither charged nor sentenced for criminal trespass as raised by defense counsel. Defendant was charged and sentenced to criminal solicitation to commit murder.

      . Short claimed to be in Texas at the time. There is no independent evidence as to where Short was physically situated. Short clearly is a manipulator and a liar. However, the court found Short reliable as to the issue of his location.

      . See generally, United States v. Ojeda Rios, 495 U.S. 257, 263, 110 S.Ct. 1845, 1849, 109 L.Ed.2d 224 (1990) (construing the custody and sealing provision as reflecting a congressional purpose to ensure the reliability and integrity of evidence obtained by electronic interception); United States v. Cantor, 470 F.2d 890, 892(3d Cir. 1972) (describing the federal custody and sealing provision as indicating a concern for confidentiality); United States v. Kohne, 358 F. Supp. 1053, 1058 (W.D. Pa. 1973) (identifying confidentiality and chain of custody).

      . See generally, United States v. Vancier, 466 F. Supp. 910, 911 (S.D.N.Y. 1979) (acknowledging that protection of the integrity of recorded evidence applies equally in the circumstance of consensual interceptions, but declining to impose a sealing requirement under the federal wiretap statute).


author: MOTTO, P.J.,

text:
    Commonwealth v. Stewart

      C.P. of Lawrence County,
    nos. 483 of 2006, CR, 544 of 2006, CR.

      John J. Bongivengo, district attorney, and Thomas Minett, assistant district attorney, for Commonwealth.

      Daniel S. Soom, for defendant Stewart.

      Ralph D. Karsh, for defendant Mercer.
    January 22, 2007
   MOTTO, P.J.,

Before the court for disposition is the Commonwealth’s petition for immunity orders requesting the court to issue an order granting immunity to defendants Kailin Stewart and Marlon Mercer, obligating them, under the protection of the immunity provided for by 42 Pa.C.S. §5947, to each testify in the proceeding against the other.

This case presents the question of whether the use of an immunity order as provided in 42 Pa.C.S. §5947 is consistent with the Pennsylvania constitutional privilege at Article 1, Section 9, against compelled self-incrimination. For the reasons that follow, this court finds that an immunity order granting each defendant use and derivative use immunity is consistent with the protection provided under our state constitution.

The facts of this case indicate that on March 20,2006, in the city of New Castle, defendant Kailin Stewart was involved in a shooting with defendant Marlon Mercer. The Commonwealth alleges that Marlon Mercer fired at Kailin Stewart with a firearm. Kailin Stewart has stated that he fired his firearm at Marlon Mercer during the same episode. There were two persons apprehended arising from this “shoot-out”: namely, Kailin Stewart and Marlon Mercer. Both defendants were charged with aggravated assault, in violation of 18 Pa.C.S. §2702(a)(l), and firearms not to be carried without a license, in violation of 18 Pa.C.S. §6106(a)(l). The aggravated assault charge against each defendant was withdrawn at the preliminary hearing and the Commonwealth has elected to proceed on the firearms not to be carried without a license charge against each defendant. The Commonwealth expects that both defendants will invoke their Fifth Amendment right against self-incrimination if they are called to testify against the other concerning the shooting. Accordingly, the Commonwealth, pursuant to 42 Pa.C.S. §5947, requested that this court enter an immunity order relative to Kailin Stewart obligating him, with the protection of use immunity, to testify against Marlon Mercer and, similarly, the Commonwealth seeks a comparable order relative to Marlon Mercer. It is alleged in both applications that it is the judgment of the district attorney that the testimony or other information from both defendants is necessary to the public interest, and that both defendants had refused or were likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.

The applications were scheduled for a joint hearing and, after a number of continuances, the matter came before the court on October 11, 2006. Counsel for the Commonwealth and both defendants conferred and concluded that only a legal issue was presented: whether an immunity order, as provided for by 42 Pa.C.S. §5947, was constitutionally available where the Commonwealth sought to compel testimony from each of two defendants when they are both charged in the same incident. This conclusion was reached after counsel for both defendants agreed that the Commonwealth’s applications were legally sufficient and that the Commonwealth could prove the allegations of the applications if a hearing was conducted.

42 Pa.C.S. §5947 provides in pertinent part:

“Immunity of witnesses

“(a) General rule. — Immunity orders shall be available under this section in all proceedings before:

“(1) Courts.

“(2) Grand juries.

“(3) Investigating grand juries.

“(4) The minor judiciary or coroners.

“(b) Request and issuance. — The attorney general or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the attorney general or district attorney:

“(1) the testimony or other information from a witness may be necessary to the public interest; and

“(2) a witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.

“(c) Order to testify. — Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding specified in subsection (a), and the person presiding at such proceeding communicates to the witness an immunity order, that witness may not refuse to testify based on his privilege against self-incrimination.

“(d) Limitation on use. — No testimony or other information compelled under an immunity order, or any information directly or indirectly derived from such testimony or other information, may be used against a witness in any criminal case, except that such information may be used:

“(1) in a prosecution under 18 Pa.C.S. §4902 (relating to perjury) or under 18 Pa.C.S. §4903 (relating to false swearing);

“(2) in a contempt proceeding for failure to comply with an immunity order; or

“(3) as evidence, where otherwise admissible, in any proceeding where the witness is not a criminal defendant.” See 42 Pa.C.S. §5947.

The defendants in this case argue that the immunity statue which grants an immunized witness use and derivative use immunity offers insufficient safeguards in exchange for the considerable protection guaranteed under Article 1, Section 9 of the Pennsylvania Constitution, which the immunized witness is forced to forsake. The defendants acknowledge that the United States Supreme Court has upheld use and derivative use immunity as sufficient protection under the Fifth Amendment to the United States Constitution in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653 (1972). They argue, however, that the Pennsylvania constitutional protection is broader and can only be satisfied by a grant of transactional immunity.

Article 1, Section 9, of the Pennsylvania Constitution reads as follows:

“In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or prosperity, unless by judgment of his peers or laws of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling to a person to give evidence against himself.”

Generally three types of immunity are recognized. “Use” immunity provides immunity only for the testimony actually given pursuant to the order compelling said testimony. “Use and derivative use” immunity enlarges the scope of the grant to cover any information or leads that were derived from the actual testimony given under compulsion. Thus, under either “use” or “use and derivative use” immunity, a prosecution against the witness is not foreclosed; any prosecution must, however, arise from evidence unrelated to the information which is derived from the witness’ own mouth. “Transactional” immunity is the most expansive, as it in essence provides complete amnesty to the witness for any transactions which are revealed in the course of the compelled testimony. See Kastigar v. United States, id., and Commonwealth v. Johnson, 507 Pa. 27, 487 A.2d 1320 (1985).

In Kastigar, the United States Supreme Court found use and derivative use immunity to adequately protect the privilege against compulsory self-incrimination contained within the Fifth Amendment. The court held that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Id. at 453.

According to Kastigar, transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The United States Supreme Court held that the privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being forced to give testimony leading to the infliction of penalties affixed to criminal acts. Id.

The case of Commonwealth v. Swinehart, 541 Pa. 500, 664 A.2d 957 (1995), presented the first opportunity for the Pennsylvania Supreme Court to consider the constitutionality of the 1978 revision of 42 Pa.C.S. §5947. The issue presented in Swinehart was stated by the court as “whether the use and derivative use immunity provided in 42 Pa.C.S. §5947 is consistent with the Pennsylvania constitutional privilege at Article 1, Section 9, against compelled self-incrimination.”

In Swinehart, the defendant, Thomas DeBlase, was subpoenaed as a witness in the trial of his co-conspirator on a murder charge. The defendant was offered immunity pursuant to 42 Pa.C.S. §5947 to testify against his co-conspirator. He refused to testify against his co-conspirator and argued that only transactional immunity can truly protect a witness from later being condemned by his own words. Id. at 523, 664 A.2d at 668. He argued that the Pennsylvania Constitution provides broader protection than the United States Constitution and can only be satisfied by a grant of transactional immunity. The court found that the statute is consistent with the Pennsylvania constitutional protection and held that use and derivative use immunity is constitutionally sufficient and transactional immunity is not required.

The Pennsylvania Supreme Court went on to explain the policy consideration that underlies the use of “use” and “derivative use” immunity in criminal prosecutions. “[TJhere is no dispute that immunization of a witness is a necessary, effective and ancient tool in law enforcement. As the United States Supreme Court stated in Kastigar, ‘many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.’ . . . Thus, in order to serve justice an accommodation must be made, however, that arrangement should not place the ‘witness’ in abetter position as to possible criminal prosecution than he had previously enjoyed. A grant of immunity should protect the witness from prosecution through his own words, yet it should not be so broad that the witness is forever free from suffering the just consequences of his actions, if his actions can be proven by means other than his own words.” Swinehart, 541 Pa. at 523-24, 664 A.2d at 968.

In the case sub judice, the defendants assert that they would be prejudiced because their testimony against the other defendant, provided under the immunity order, could provide a basis to pursue perjury charges against them if they were to testify differently during their own trial. While the Commonwealth relies heavily on Swine-hart in support of its position that the application for immunity should be granted in this action, the defendants argue that Swinehart is not factually similar to the case at bar because the witness in Swinehart, DeBlase, was being forced to testify against his co-conspirator, and there are no allegations that there was any conspiracy with respect to the defendants in this case. The defense notes that the current charge pending against each defendant is firearms not to be carried without a license, and that forcing the defendants to testify in direct conflict with their privilege against self-incrimination would act to force them into the dilemma of not only self-accusation, but also perjury or contempt, which are both allowed by the statute.

Swinehart provides guidance to this court because the situation presented instantly is the type of situation discussed by the Pennsylvania Supreme Court in Swinehart, when it said:

“A grant of immunity should protect the witness from prosecution through his own words, yet it should not be so broad that the witness is forever free from suffering the just consequences of his actions, if his actions can be proven by means other than his own words.” Id., 541 Pa. at 524, 664 A.2d at 968.

Although in Swinehart, the witness DeBlase and defendant were charged with being co-conspirators in a murder, while here each defendant is not charged as a co-conspirator but are each charged with the identical offense arising out of the same incident, the distinction is without a difference. The constitutional concern raised by DeBlase in Swinehart is the same raised by the defendants in this case. DeBlase’s argument was described by the court in Swinehart as follows:

“In fact in the instant case DeBlase argues that if forced to testify against his co-conspirator he will forever be caught within the web and his ability to receive a fair trial forever tainted. Specifically, the untraceable effects of his immunized testimony will impact upon the selection of his jury, the presentation of a defense, the ability to utilize character witnesses and infringe upon his decision to testify on his own behalf.” Swinehart, 541 Pa. at 523, 664 A.2d at 968.

Despite the acknowledgement of the dilemma use/derivative use immunity presents to the witness charged in the same incident, the Swinehart court concluded that the practical consequences, otherwise known as the “web effect” created by immunizing a witness, should not tip the balance so far in favor of the witness that the Commonwealth is only left with the option of granting complete amnesty. Swinehart, 541 Pa. at 524, 664 A.2d at 968. Despite the practical concerns raised by the immunized witness, which are the same practical concerns raised sub judice, the Supreme Court in Swinehart read 42 Pa.C.S. §5947 to be constitutional and not violative of Article 1, Section 9 of the Pennsylvania Constitution.

For these reasons, this court finds that the Commonwealth’s application for immunity order should be granted with respect to each defendant. While the court notes that each defendant is put into the precarious position of possibly subjecting himself to self-accusation, perjury or contempt, that alone is not enough to deny the application for immunity order pursuant to 42 Pa.C.S. §5947 if the requirements of the statute are otherwise met.

Both Kastigar and Swinehart clearly support the proposition that “use” and “derivative use” immunity are permitted within the boundaries of our state constitution and that it can best achieve the necessary balance between the right to protect a witness from giving evidence against himself and the right of the public to compel every person’s testimony. Each defendant will be protected from being prosecuted by “his own words” compelled by an immunity order. That is all that is required by Article 1, Section 9 of the Pennsylvania Constitution. Accordingly, the applications for immunity order will be granted by separate order.

ORDER

And now, January 22,2007, after hearing and consideration of the foregoing application for immunity order, the application is granted. Marlon Mercer is directed that he may not refuse to testify based on his privilege against self-incrimination in this criminal action against Kailin Stewart.

No testimony or other information compelled under this immunity order, or any information directly or indirectly derived from such testimony or other information, may be used against the testifying person in any criminal case, except that such information may be used: in a prosecution relating to perjury or relating to false swearing, in a contempt proceeding for failure to comply with this immunity order, or as evidence, where otherwise admissible, in any proceeding where the testifying person is not a criminal defendant.

ORDER

And now, January 22,2007, after hearing and consideration of the foregoing application for immunity order, the application is granted. Kailin Stewart is directed that he may not refuse to testify based on his privilege against self-incrimination in this criminal action against Marlon Mercer.

No testimony or other information compelled under this immunity order, or any information directly or indirectly derived from such testimony or other information, may be used against the testifying person in any criminal case, except that such information may be used: in a prosecution relating to perjury or relating to false swearing, in a contempt proceeding for failure to comply with this immunity order, or as evidence, where otherwise admissible, in any proceeding where the testifying person is not a criminal defendant.


author: JACKSON, J.,

text:
    Andrew v. Harrah’s Atlantic City Inc.

      C.P. of Philadelphia County,
    March Term 2005,
    no. 3728.

      Stephen A. Sheinen, for plaintiffs.

      Lawrence M. Kelly, for defendant.
    January 22, 2007
   JACKSON, J.,

The plaintiffs-appellants, Delores and Anthony Andrew, brought this action against defendant-appellee, Harrah’s Atlantic City Inc., to recover damages sustained by plaintiff, Dolores Andrew, for personal injuries resulting from a fall off of a stool at defendant’s casino; and damages sustained by plaintiff, Anthony Andrew, for loss of consortium.

A jury was selected on September 13, 2006. Prior to the commencement of the trial, defendant argued a motion in limine to preclude plaintiffs from eliciting testimony regarding prior incidents. This court granted ciefendant’s motion at that time. Immediately following the ruling by this court, defendant made a motion for compulsory nonsuit. This court granted the motion and entered nonsuit on September 14, 2006.

On September 21, 2006, plaintiffs filed a “motion to remove nonsuit/motion for reconsideration of evidentiary ruling granting defendant’s motion in limine.” Notwithstanding plaintiffs’ labeling of the motion, it is in effect a motion for post-trial relief pursuant to Pa.R.C.P. 227.1(a)(3).

On October 11, 2006, plaintiffs filed a notice of appeal to Superior Court. That appeal was marked “discontinued” with Superior Court on November 6, 2006. On December 19,2006, this court denied plaintiffs’ motion for post-trial relief and entered judgment in favor of defendant. Plaintiffs filed the instant appeal on December 27, 2006. In their statement of matters complained of on appeal, plaintiffs contend:

“(1) The trial court erred in granting defendant’s motion for nonsuit and in denying plaintiffs’ motion to remove nonsuit....

“(2) The trial court abused its discretion in granting defendant’s motion in limine precluding plaintiffs from eliciting testimony from defendant’s employee regarding whether defendant had notice of the dangerous condition of its slot stools ....

“(3) The trial court erred in limiting plaintiffs’ potential recovery to $15,000 ....”

Plaintiffs contend this court erred in granting defendant’s motion for nonsuit and in denying plaintiffs’ motion to remove nonsuit. “An order denying a motion to remove a compulsory nonsuit will be reversed on appeal only for an abuse of discretion or error of law.” Alfonsi v. Huntington Hospital Inc., 798 A.2d 216, 218 (Pa. Super. 2002). (citation omitted) “A trial court’s entry of compulsory nonsuit is proper where the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action, and it is the duty of the trial court to make a determination prior to submission of the case to a jury.” Id. “In making this determination the plaintiff must be given the benefit of every fact and all reasonable inferences arising from the evidence and all conflicts in evidence must be resolved in plaintiff’s favor.” Id.

In the instant case, prior to commencement of the trial, defendant argued a motion in limine to preclude testimony of evidence of prior slot stool accidents or events. This court granted that motion. Immediately following the ruling, defendant made a motion for compulsory non-suit. When this court questioned plaintiffs’ counsel as to the argument on the motion, counsel replied, “I don’t know how I can contest that.” N.T., September 14,2006, p. 24. After counsel requested that the transcript of his proffered witness be attached to the record, this court inquired again, “[s]o no further argument on the motion for nonsuit, counsel?”, and plaintiffs’ counsel replied, “[n]o.” N.T., p. 25.

As there was no argument at the time of the motion for nonsuit, none can be argued at this point in time. Counsel did not preserve this issue for appeal. Hence, this court has nothing to address on this issue.

Plaintiffs contend this court abused its discretion in granting defendant’s motion in limine precluding plaintiffs from eliciting testimony from defendant’s employee regarding whether defendant had notice of the dangerous condition of its slot stools. Specifically, plaintiffs intended to present testimony from Alex Lovas, the security supervisor at defendant’s casino, demonstrating that there were prior complaints at defendant’s casino regarding loose slot stools, prior incidents of patrons having fallen off of loose slot stools, and an established duty to inspect the slot stools.

“[M]any jurisdictions, including New Jersey and Massachusetts, have not adopted a per se rule precluding the use of prior accidents as substantive evidence of a dangerous condition. The rationale for not adopting a per se rule of preclusion is that the practice conflicts with the modern rules of evidence, which emphasize a trial court’s discretionary determination of relevancy. ‘In determining relevance, the trial court should focus on “the logical connection between the proffered evidence and a fact in issue[,]” or “the tendency of evidence to establish the proposition that it is offered to prove.” ’ ” Wymbs v. Township of Wayne, 163 N.J. 523, 750 A.2d 751 (2000). (citations omitted)

In the instant case, when Mr. Lovas was questioned at his deposition regarding prior incidents, he testified that he couldn’t remember any specific incidents where patrons complained of loose slot stools. When asked if he ever took a complaint himself, he responded, “I’m not positively sure but yes, probably.” N.T., December 12, 2005, p. 45. When asked to clarify his answer to the question had he received any complaints from the time he started working at Harrah’s until July 2003, he responded, “Yeah, I would say probably 75 percent sure that someone has made a complaint about slot stools in that 10-month period but I cannot remember any specific cases where I would know peoples’ names.” N.T., pp. 47,48.

Further, with respect to plaintiff’s stool specifically, Mr. Lovas couldn’t remember ever inspecting her stool prior to the incident, ever hearing that her stool was loose, or if it was repaired prior to the incident. N.T., p. 54. When asked if he had ever heard of a patron falling off of a loose slot stool at Harrah’s, Mr. Lovas testified “[a]gain, I don’t remember any specific incidents, but I’m sure it occurred.” N.T., pp. 55, 56.

Clearly, this testimony could not be admitted as substantive evidence of a dangerous condition. Mr. Lovas could not remember one specific incident of a complaint about a loose slot stool, let alone a prior fall off of a loose slot stool. Hence, this court properly precluded Mr. Lovas’ testimony.

Plaintiffs contend this court erred in limiting plaintiffs’potential recovery to $15,000 per Pa.R.C.P. 1311.1. This court notes that plaintiffs had not briefed or argued this issue prior to appeal, however, it will address it as follows. After reviewing Pa.R.C.P. 52, this court agrees that the amended version of Pa.R.C.P. 1311.1 applies to the instant case. Hence, the maximum amount of damages recoverable per this stipulation would have been $25,000 if a nonsuit had not been entered. Since a non-suit was entered, the issue is now moot.

For all of the above reasons, the order granting non-suit should be affirmed.

      . New Jersey law is applicable as that is where the incident occurred. This court further notes, both counsel have relied on the cited case.


author: ABRAMSON, J,

text:
    Wyatt v. Silverstein

      C.P. of Philadelphia County,
    March Term 2004,
    no. 5214.

      Jeffrey Zucker, for plaintiff.

      William T Hangley and Kathleen M. Laubenstein, for defendants.
    January 11, 2007
   ABRAMSON, J,

This case concerns a dispute over fees for legal services. Aaron Wesley Wyatt seeks restitution of $100,000 allegedly loaned or advanced to Silverstein and Beilin LLC (S&B). Wyatt also seeks restitution of a success fee in the amount of $695,000 that S&B allegedly failed to earn. By counterclaim, Ira Silverstein and S&B assert that the $100,000 constituted neither a loan nor an advance, but a paid fee for legal services. Silverstein and S&B also assert that S&B earned and properly collected the $695,000 success fee when Wyatt sold his interests in Pilot Air Freight to Richard Phillips, a business partner. Finally, Silverstein and S&B claim that Wyatt owes S&B $389,615 for legal services rendered from February 1,2003 to January 19, 2004, under a quantum meruit theory.

FINDINGS OF FACT

I. Background

(1) Silverstein is an attorney licensed to practice in the Commonwealth of Pennsylvania. Wyatt is a businessman and former client of Silverstein. Silverstein and Wyatt formed an attorney-client relationship in the mid-1990s, when Silverstein worked at the firm of Fox Rothschild.

(2) Wyatt continued to be a client of Silverstein’s after Silverstein formed S&B in 2000.

II. The November 2000 Fee Agreement

(3) Wyatt and S&B entered into a fee agreement (the 2000 agreement), which was effective November 15, 2000.

(4) Under the 2000 agreement, Wyatt agreed to pay, and did pay, S&B a monthly retainer of $20,000.

(5) Under the 2000 agreement, S&B was entitled to a success fee.

(6) The 2000 agreement defined “success” as either Wyatt’s purchase of Richard Phillips’ interests in Pilot, or as Phillips’ purchase of Wyatt’s interest in the same. Either way, the success fee payable to S&B amounted to 10 percent of the purchase price.

(7) In January 2003, Phillips purchased Wyatt’s interests in Pilot.

(8) Following the sale, Wyatt paid S&B a success fee of $695,000.

III. The 2003 Fee Agreement

(9) Wyatt and S&B reached a new fee agreement (the 2003 agreement), whose terms were embodied in a letter from Silverstein to Wyatt, dated March 11, 2003.

(10) The 2003 agreement provided that for legal representation “commencing with February 1, 2003,” the success fee would be calculated as 25 percent of any recovery.

(11) The 2003 agreement provided that S&B would receive a fixed monthly fee of $20,000 for all litigation.

(12) The 2003 agreement provided that its terms applied to specific contemplated litigation actions in pursuit of damage claims. Specifically, the 2003 agreement named the following contemplated litigation actions against:

“(1) Richard G. Phillips, Schnader, Harrison, Segal & Lewis and Grant Thornton, arising from Wyatt’s relationship with Pilot Air Freight;

“(2) John Edwards and his counsel with respect to their prosecution of the lawsuit against Wyatt which was on appeal to the Third Circuit; and

“(3) The Kearns estate and KPMG in connection with the misrepresentations of D.F. Young financials.”

(13) The 2003 agreement stated that S&B would handle additional assignments at no additional charge, except that, should a major new litigation or project be contemplated other than those outlined above, the parties would reach an agreement as to whether the new major litigation required modification of the 2003 agreement.

(14) After the parties entered into the 2003 agreement, S&B performed legal services on behalf of Wyatt in the damages actions enumerated in the 2003 agreement.

(15) After the parties entered into the 2003 agreement, S&B performed legal services on behalf of Wyatt in a number of non-litigation matters.

(16) After the parties entered into the 2003 agreement, S&B performed legal services on behalf of Wyatt in a number of litigations over and above those that had been specifically identified in the 2003 agreement.

IV. The $100,000 Fee Payment

(17) In a letter dated October 14, 2003, Silverstein requested payment of a $100,000 fee from Wyatt for Silverstein’s “work being done on the case seeking to obtain ownership of Pilot Air Freight.” The letter included a bill requesting the payment of that sum for “general consultation.”

(18) On December 3,2003, Silverstein sent an e-mail to Wyatt’s accountant. This e-mail requested the onetime $100,000 payment “over and above the monthly retainer.”

(19) By e-mail dated December 16, 2003, Wyatt authorized his accountant to make the $ 100,000 payment. Wyatt’s e-mail to his accountant stated: “the payment for [Silverstein] is ok ....”

(20) On December 30, 2003, the accountant paid the $100,000 to S&B.

(21) On January 5, 2004, Wyatt e-mailed his accountant and asked him not to make the $ 100,000 payment to S&B. Wyatt’s e-mail to his accountant stated: “make sure we do not send the advance to [Silverstein] as I am still not sold on this concept.”

(22) On January 19, 2004, Wyatt fired S&B and demanded return of the $100,000.

(23) At the time of the termination, all of the enumerated damages actions specifically contemplated by the 2003 agreement were still pending.

V. The Quantum Meruit Value of the Services on Various Matters Rendered by S&B to Wyatt

(24) From February 1,2003 through January 19,2004, S&B performed legal services on behalf of Wyatt’s litigation against Phillips for $389,377.50, calculated at the hourly rates of the S&B professionals who worked on the matter.

(25) From February 1,2003 through January 19,2004, S&B performed legal services on behalf of Wyatt’s litigation against Grant Thornton for $26,735, calculated at the hourly rate of the S&B professionals who worked on the matter.

(26) From February 1,2003 through January 19,2004, S&B performed legal services on behalf of Wyatt’s litigation against Schnader, Flarrison, Segal & Lewis for $41,797.50, calculated at the hourly rate of the S&B professionals who worked on the matter.

(27) From February 1,2003 through January 19,2004, S&B performed legal services on behalf of Wyatt, in connection with the litigation involving John Edwards, for $23,667.50, calculated at the hourly rate of the S&B professionals who worked on the matter.

(28) From February 1,2003 through January 19,2004, S&B performed legal services on behalf of Wyatt’s litigation involving the Kearns estate and KPMG for $8,340, calculated at the hourly rate of the S&B professionals who worked on the matter.

(29) From February 1,2003 through January 19,2004, S&B performed other legal services attributable to specific, identified matters on behalf of Wyatt for $57,997.50, calculated at the hourly rate of the S&B professionals who worked on the matter.

(30) From February 1,2003 through January 19,2004, S&B performed other legal services that cannot be attributed to a single, identifiable matter that S&B performed on Wyatt’s behalf, for $162,000, calculated at the hourly rate of the S&B professionals who worked on the matter.

(31) In total, S&B performed legal services on behalf of Wyatt for $709,615.

(32) During the 11 months from February 1,2003, to the termination date of January 1,2004, Wyatt paid S&B a monthly fee of $20,000 pursuant to the 2003 agreement. These monthly payments totaled $220,000.

CONCLUSIONS OF LAW

VI. The $695,000 Success Fee Under the 2000 Agreement

(33) The 2000 agreement defined “success” as either Wyatt’s purchase of Richard Phillips’ interests in Pilot, or as Phillips’ purchase of Wyatt’s interest in the same. Either way, the success fee payable to S&B amounted to 10 percent of the purchase price.

(34) A court of law in Pennsylvania has determined that Phillips purchased Wyatt’s interests in Pilot in January 2003. Consequently, Silverstein and S&B are entitled to the success fee of $695,000.

VII. The $100,000 Fee Payment

(35) By letter dated October 14, 2003, S&B billed Wyatt $100,000 “for work being done on the case seeking to obtain ownership of Pilot Air Freight.”

(36) By e-mail dated December 3, 2003, Wyatt informed his accountant that the $ 100,000 payment to S&B was proper.

(37) Following these communications, Wyatt’s accountant sent a check for $100,000 to S&B, on December 30, 2003.

(38) In Pennsylvania, the court ascertains the intent of the parties as manifested by the language of the written instruments. When the language is clear and unambiguous, the court gives effect to that language.

(39) The plain language of S&B’s letter and bill to Wyatt’s accountant specify that the $100,000 constituted a fee for representing Wyatt in his attempt to obtain ownership of Pilot Air Freight.

(40) There is no evidence in the written communications that the $100,000 constituted a loan from Wyatt to S&B.

(41) S&B is entitled to the $100,000 success fee for representing Wyatt in his attempt to acquire Pilot Air Freight.

VIII. The Quantum Meruit Value of the Services on Various Matters Rendered by S&B to Wyatt

(42) Silverstein and S&B claim that S&B is entitled under the 2003 agreement to recover in quantum meruit for work done between February 1, 2003 and January 19, 2004. Silverstein and S&B claim that they are entitled to a quantum meruit amount of $709,615.

(43) Silverstein and S&B concede that Wyatt is entitled to a credit of $220,000 representing 11 monthly payments under the 2003 agreement.

(44) Silverstein and S&B concede that Wyatt is entitled to a credit of $100,000 representing the one-time payment made by Wyatt in December 2003.

(45) An attorney hired under a contingent fee arrangement, but fired before the fee has ripened, may recover in quantum meruit. In such a case, the amount recoverable in quantum meruit for services performed is calculated by multiplying the number of hours worked by a fair fee.

(46) If the words in a contract are clear and unambiguous, the intent of the parties may be discovered only from the express language of the agreement.

(47) The 2003 agreement recited that S&B would be paid a fixed fee of $20,000 a month for all litigation, and would receive a success fee of 25 percent of any recovery.

(48) The language of the 2003 agreement shows that Wyatt and S&B agreed to a hybrid retainer-contingent fee arrangement for all the enumerated litigation actions. The enumerated actions governed by the hybrid retainer-contingent fee arrangement included the Richard G. Phillips litigation, the Schnader, Harrison, Segal & Lewis litigation, the Grant Thornton litigation, the John Edwards litigation, and the Kearns estate and KPMG litigation.

(49) Silverstein and S&B are entitled to $389,377.50 for legal services performed in connection with Wyatt’s litigation against Richard G. Phillips, from February 1, 2003 to January 19,2004.

(50) Silverstein and S&B are entitled to $26,735 for legal services performed in connection with Wyatt’s litigation against Grant Thornton, from February 1,2003 to January 19,2004.

(51) Silverstein and S&B are entitled to $41,497.50 for legal services performed in connection with Wyatt’s litigation against Schnader, Harrison, Segal & Lewis, from February 1,2003 to January 19,2004.

(52) Silverstein and S&B are entitled to $23,667.50 for legal services performed in connection with Wyatt’s litigation concerning John Edwards, from February 1, 2003 to January 19, 2004.

(53) Silverstein and S&B are entitled to $8,340 for legal services performed in connection with Wyatt’s litigations involving the Kearns estate and KPMG, from February 1, 2003 to January 19, 2004.

(54) The 2003 agreement recited that S&B would “handle additional assignments under this retainer arrangement at no additional charge,” excluding major new litigation. The phrase “under this retainer arrangement” is ambiguous as to whether any “additional assignment” would be governed by a fixed monthly or hybrid fee arrangement.

(55) Ambiguous terms in a contract are construed against the drafter.

(56) The court concludes that the legal services performed on behalf of Wyatt on matters not identified in the 2003 agreement are “additional assignments” governed by a fixed monthly fee arrangement, handled at no additional charge. Consequently, Silverstein and S&B are not entitled to $57,997.50 for legal services not identified in the 2003 agreement.

(57) Silverstein and S&B claim that they are entitled to $162,000 for legal services that cannot be attributed to a single, identifiable matter, rendered between February 1, 2003 and January 19, 2004. Silverstein and S&B claim that they are entitled to $ 162,000 even though S&B never issued a billing statement reflecting this amount.

(58) Damages are speculative if the uncertainty concerns the fact of damages rather than the amount.

(59) The court concludes that the claim for services rendered in the amount of $162,000 is speculative as to the fact of damages. Consequently, Silverstein and S&B are not entitled to $162,000 for legal services that cannot be attributed to a single, identifiable matter, rendered between February 1, 2003 and January 19, 2004.

(60) The court concludes that Silverstein and S&B are entitled to recover in quantum meruit in the amount of $169,617.50. This amount reflects services rendered in connection with the Phillips litigation ($389,377.5); plus the Grant Thornton litigation ($26,735); plus the Schnader, Harrison, Segal & Lewis litigation ($41,497.5); plus the John Edwards litigation ($23,667.5); plus the Kearns estate and KPMG litigation ($8,340); minus the retainer payments from February 1,2003 to January 19, 2004 ($213,200); minus the one-time fee of $100,000.

(61) The court finds in favor of defendants/counterclaim plaintiffs Sovereign and S&B in the amount of $169,617.50, and against plaintiff/counterclaim defendant Aaron Wesley Wyatt.

ORDER

And now, January 11,2007, after trial upon stipulated facts, upon consideration of the record, and in accordance with the findings of fact and conclusions of law issued contemporaneously herewith, it is ordered that plaintiff/ counterclaim defendant Aaron Wesley Wyatt shall pay damages to defendants/counterclaim plaintiffs Ira Silverstein and Silverstein & Beilin LLC in the amount of $169,617.50.

      .Amended statements of stipulated facts, ¶1.

      . Id. at%2.

      . Id. at ¶3.

      . Id. at ¶4.

      . Id. at ¶5.

      . Id. at ¶7.

      . Wyatt v. Phillips, 2004 Phila. C.C.P. Lexis 89, aff’d, 880 A.2d 20 (Pa. Super. 2005), appeal denied, 586 Pa. 741, 891 A.2d 734 (2005).

      . Amended statements of stipulated facts, ¶10.

      . Id. at ¶19. See joint exhibit no. 6 to the amended statements of stipulated facts.

      . Amended statements of stipulated facts, ¶21.

      . Id.

      . Id.

        .Id.

      . Id. at ¶22.

      . Id. at ¶23.

      . Id. at ¶24.

      . Id. at ¶30. See joint exhibit no. 12 to the amended statements of stipulated facts.

      . Id. at ¶31.

      . Joint exhibit no. 13 to the amended statements of stipulated facts.

      . Amended statements of stipulated facts, ¶32.

        .Id. a^33.

      . Joint exhibit no. 14 to the amended statements of stipulated facts.

      . Id. at ¶34.

      . Id. a^35.

      . Id. at ¶36.

        . Id. 3†¶37.

        . Id. at|38.

      . Id. at ¶39.

      . Id. at ¶40.

      . Id. at ¶41.

      . Id. a^42.

      . Id. a^43.

      . Wyatt v. Phillips, 2004 Phila. C.C.P. Lexis 89, aff’d, 880 A.2d 20 (Pa. Super. 2005), appeal denied, 586 Pa. 741, 891 A.2d 734 (2005).

      . Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 567 (1983).

      . Id.

      . Mager v. Bultena, 797 A.2d 948, 956-57 (Pa. Super. 2002).

      . Id. at 957.

      . Steuart v. McChesney, 498 Pa. 45, 49, 444 A.2d 659, 661 (1982).

      . Smith v. Windsor Group, 750 A.2d 304, 308 (Pa. Super. 2000).

      . Billing memorandum for non-specific matters, exhibit 13 to Silverstein’s and S&B’s settlement conference statement.

      . Rizzo v. Haines, 520 Pa. 484, 505, 555 A.2d 58, 68 (1989).

      . For example, the billing memorandum, supra at 40, states that “Wyatt would simply show up or call and ask to come over to talk to Silverstein with regard to various matters two to three times a week. These visits averaged about two hours each.” The billing memorandum also states that “Wyatt called Silverstein virtually every day, including during the time that Silverstein was on vacation. The phone time averaged approximately a half hour per day.”


author: PAPALINI, J.,

text:
    Caiazzo v. North American Specialty Insurance Co.

      C.P. of Philadelphia County,
    August Term 2005,
    no. 1577.

      Robert A. Gelinas, for plaintiffs.

      Jonathan Dryer and Thomas Patrick Kelly, for defendants.
    January 5, 2007
   PAPALINI, J.,

Plaintiffs have filed an appeal of our order of September 27, 2006, granting the motion of defendant North American Specialty Insurance Company to transfer venue to Dauphin County on the grounds of forum non conveniens, Pennsylvania Rule of Civil Procedure 1006(d)(1).

Plaintiffs, by attorney Robert A. Gelinas, Esquire, brought this action in 2005, in the Court of Common Pleas of Philadelphia County, against North American Specialty Insurance Company (NASIC) and the Pennsylvania Financial Responsibility Assigned Claims Plan seeking first party, medical and/or uninsured motorist benefits.

I. FACTUAL HISTORY

(1) On August 13, 2001, there was a motor vehicle accident in Harrisburg, Dauphin County, Pennsylvania, involving a city bus, a taxi owned by Capital City Cab Company and a third vehicle owned and operated by B. L. Mosley.

(2) Cheryl F. Cannon, I’Yahnna Cannon, and minors Montae Cannon, Inayah Cannon, Meshach Cannon and Elijah Cannon, were occupants of the cab. Cheryl was killed; the others were injured.

(3) Defendant NASIC insured Capital City Cab Company but denied coverage, contending that the particular vehicle involved in the accident was not insured under the policy.

(4) All lawsuits for personal injury had previously been filed in the Court of Common Pleas of Dauphin County. They include a personal injury, wrongful death and survival action filed by Mr. Gelinas in 2003 on behalf of Cheryl F. Cannon, I’Yahnna Cannon, Montae Cannon, Inayah Cannon and Meshach Cannon, five of the same plaintiffs named in this action against NASIC and numerous other defendants. (Cannon v. Mosley, C.P. Dauphin Cty., 2003 CV 3169.)

(5) Also, prior to the institution of this action, Capital City Cab Company filed a declaratory judgment action in the Court of Common Pleas of Dauphin County against NASIC to determine coverage. Plaintiff Elijah Cannon is not a party to that action nor is the Assigned Claims Plan.

(6) There is venue in Philadelphia County because NASIC does business here. Also, estate administrator Anthony J. Caiazzo Jr. is an attorney with an office in Philadelphia and guardian Mamie Evans resides in Philadelphia.

(7) The insurance policy in question was written in Dauphin County.

(8) NASIC’s main office is in New Hampshire.

(9) All the persons who were actually injured in the accident resided in Dauphin County. There was no treatment in Philadelphia or any other direct contact with this county.

(10) On July 17, 2006, Assigned Claims Plan filed a motion for summary judgment.

(11) On August 1, 2006, defendant NASIC filed a motion to transfer venue. The motion was opposed by both the plaintiffs and defendant Assigned Claims Plan.

II. DISCUSSION

The only issue in this case is whether we erred by transferring venue to the Court of Common Pleas of Dauphin County on grounds of forum non conveniens.

In Wood v. E.I. du Pont de Nemours and Company, 829 A.2d 707 (Pa. Super. 2003), our Superior Court set forth the criteria for determining when a change of venue based on forum non conveniens is warranted:

“The seminal case regarding transfers based on forum non conveniens is Cheeseman [v. Lethal Exterminator Inc., 549 Pa. 200, 701 A.2d 156 (1997)]. Our Supreme Court reasoned as follows. First, ‘a trial court, even if congested, must give deference to the plaintiff’s choice of forum[.]’ Cheeseman, 701 A.2d at 162. The plaintiff’s choice of forum should ‘rarely be disturbed’ by the grant of a petition under Rule 1006(d)(1). Id. Next, ‘a petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiff’s chosen forum is oppressive or vexatious to the defendant. ’ Id. The defendant may meet this burden in one of two ways: (1) by showing ‘with facts on the record that the plaintiff’s choice of forum was designed to harass the defendant, even at some convenience to the plaintiff himself’; or (2) by showing ‘on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute.’ Id.

“The Cheeseman court stressed that ‘the defendant must show more than the chosen forum is merely inconvenient to him.’ Id. A mere showing ‘that no significant aspect of the case involves the chosen forum, and that litigating in another forum would be more convenient,’ is insufficient. Id. Finally, the trial court’s own congestion or backlog is not a relevant factor. Id.” (829 A.2d at 711-12.)

In the case at bar, we found that the only connection this case has to Philadelphia is that plaintiffs’ attorney Mr. Gelinas, estate administrator Caiazzo and a guardian of a minor, Mamie Evans, work or reside here.

It was clearly not inconvenient or oppressive for Mr. Gelinas to litigate this matter in Dauphin County because he already has a personal injury lawsuit on behalf of the plaintiffs pending there. That suit appears to be complex and time-consuming in terms of both liability and damages. It appears that all of the facts witnesses regarding liability and damages reside in or near Dauphin County. Therefore, this court anticipated that Mr. Gelinas will be required to spend a great deal of time in Dauphin County.

Defendant Assigned Claims Plan litigates throughout the Commonwealth, so change of venue was not a burden for it.

We found that going forward with this suit in Philadelphia was burdensome and oppressive to defendant NASIC for three reasons. First, NASIC would have to simultaneously defend similar actions in jurisdictions over 100 miles apart. Second, there existed the real possibility of conflicting decisions as to the liability of NASIC which could be rendered by the Dauphin County court on the declaratory judgment action and the Philadelphia court on this action. Third, if any fact witnesses are required to establish first party, medical and/or uninsured motorist benefits, they all appear to be located in Dauphin County.

For those reasons we properly granted the motion and ordered this matter transferred to the Court of Common Pleas of Dauphin County.

      . The action was commenced by the filing of a writ of summons on August 11, 2005. A complaint was filed on September 6, 2006.

      . We note that in the personal injury action, PYahnna Cannon is listed as the administratrix of the estate of Cheryl F. Cannon, not attorney Caiazzo.