author: TURGEON, J„

text:
    Sweikert v. Kostin

      C.P. of Dauphin County,
    no. 4875 S 1996.

      Richard C. Angino, for plaintiffs.

      John Kantner, for defendants.

      Leigh A. J. Ellis, for additional defendants Keyser and Anesthesia Services.
    July 18, 2001
   TURGEON, J„

On January 25,2001, a jury rendered a verdict, slightly in excess of $1 million, in favor of plaintiff Margaret Sweikert and her husband Earl Sweikert Jr., finding defendants and additional defendants liable for Mrs. Sweikert’s arm injury. On January 26, 2001, plaintiffs filed a motion for post-trial relief seeking a new trial or a judgment n.o.v. and remittitur. On January 31, 2001, additional defendants also filed a post-trial motion seeking a new trial or judgment n.o.v. Oral argument was held April 3, 2001. On May 25, 2001, this court entered an order denying both post-trial motions from which both parties have appealed. This opinion is written in support of that order.

FACTS

On December 19,1995, Mrs. Sweikert visited her family doctor with breathing difficulty and chest pain. She was referred to the Harrisburg Hospital emergency room where she was seen by chief surgical resident Dr. William Rhodes, covering for thoracic surgeon Raymond Kostin M.D. Mrs. Sweikert was diagnosed with a spontaneous right pneumothorax, or lung collapse. The lung collapse was caused by a bleb or weakness on the lung surface which allowed air to escape and become trapped in her chest wall, causing pressure and downward collapse of the lung. (N.T. 1/23/01 vol. I 8-9.) Mrs. Sweikert had suffered from the same ailment in 1993 and had been treated then by Dr. Kostin. At that time, her condition had resolved after insertion of a chest tube and removal of the air at its leak. In this case, Dr. Rhodes inserted the chest tube but the bleb failed to seal on ills own.

Dr. Kostin recommended Mrs. Sweikert undergo video-assisted thoracoscopic surgery (VATS) for resection of the probable apical bleb and stapling of the area. Mrs. Sweikert agreed and on December! 21, 1995, underwent the procedure at Harrisburg Hospital. Dr. Kostin performed the surgery with the assistance of Dr. Rhodes. Dr. Glenn Keyser was the anesthesiologist. VATS requires that three small openings be made in the patient’s chest area, including one near the armpit. Various instruments are then placed in and out of the ports as necessary, including a video camera, stapler and grasper, and post-surgically, a chest tube.

Mrs. Sweikert was originally placed supine (flat) and given anesthesia. Upon Dr. Kostin’s instruction, she was moved onto her left side at a 30 degree angle (semi-lateral decubitus position). Dr. Kostin made the ultimate decision about arm positioning and Dr. Keyser physically manipulated Mrs. Sweikert’s arm according to his instructions. (N.T. 1/24/01 178.) Dr. Kostin allegedly wanted her arm in the “Statue of Liberty” position. (N.T. 1/24/01 56.) That position was described as one where the arm is angled at 90 degrees from the body and slightly more than 90 degrees at the elbow and placed in an arm board. (N.T. 1/23/01 vol. 142, 44; 1/24/01 53-54.) This position is similar to the wave position where the elbow is at a 90 degree angle, as if taking an oath or waving. (N.T. 1/24/01 50.) Both positions are typically used in the type of surgery Mrs. Sweikert underwent. (N.T. 1/23/01 vol. I 81; 1/24/01 50, 53, 76; 1/25/01 13-14.) Where a patient is in the semi-decubitus position, there is an association between brachial plexus injuries and the arm being raised to an angle greater than 90 degrees. (N.T. 1/24/01 24, 51; 1/25/01 21.)

Mrs. Sweikert’s arm was positioned at about 10:40 a.m. and remained that way until about 12:10 p.m., when surgery concluded. (N.T. 1/24/01 186.) Mrs. Sweikert was admitted to the post-anesthesia care unit recovery room around 12:30 p.m. At approximately 9 p.m., Mrs. Sweikert complained to the nurse of right arm numbness from her elbow to her fingers. She was unable to make a fist, squeeze the nurse’s hand or do any fine-finger movement. Dr. Rhodes saw Mrs. Sweikert a short while later and recorded that Mrs. Sweikert’s chief complaint was right arm numbness/tingling. She complained as well the next morning to Dr. Kostin of tingles in her fingers.

Mrs. Sweikert’s condition failed to resolve and she was later diagnosed with a brachial plexus injury to her upper right extremity. As of the trial, Mrs. Sweikert had limited range of motion in her right arm (her dominant arm), had a constant burning sensation, was unable to use her thumb, and her hand and fingers were in a retracted position. Her condition is considered permanent. Plaintiffs alleged defendants Dr. Kostin and Harrisburg Hospital (Pinnacle Health), through the action or inaction of its assisting medical staff, caused a brachial plexus stretch injury during surgery as the result of her surgical positioning. Plaintiffs alleged that because the bleb was located at the extreme top of her lung, Dr. Kostin could not have been able to maneuver the surgical instruments through Mrs. Sweikert’s armpit port without raising her arm to an angle greater than 90 degrees. Defendants in turn filed suit against Dr. Keyser of Glamm Anesthesia Services and Anesthesia Associates of Pennsylvania, arguing they were liable for any injury suffered by Mrs. Sweikert.

On January 22,2001, just prior to trial, defendants Dr. Kostin and Harrisburg Hospital settled with plaintiffs for $125,000. The jury was not informed of the settlement and the defendants, through counsel, participated in the trial.

Plaintiffs’ theory of liability was that surgical positioning caused a stretch of the nerves and that additional defendants, through Dr. Keyser, were ultimately responsible for positioning. Additional defendants proposed other theories of liability including that one of the surgical instruments inserted by Dr. Kostin or Dr. Rhodes caused a brachial plexus contusion or compression, or that the injury was caused by pre or postoperative chest tube insertion or by a pre or postoperative stretch injury. Defendants and additional defendants also suggested that stretch injuries are known to occur during surgery in the absence of negligence. Due to a lack of direct evidence of injury, the jury was instructed on the res ipsa loquitur doctrine. Following trial, the jury returned with a $1,020,338.92 verdict, finding defendant Dr. Kostin 45 percent liable, defendant Harrisburg Hospital 45 percent liable and additional defendants, Dr. Keyser, Glamm Anesthesia Services and Anesthesia Associates of Pennsylvania, a combined 10 percent liable.

Additional Defendants’ Post-Trial Motion

Additional defendants sought a new trial arguing the court erred in permitting plaintiffs to directly examine Dr. Kostin regarding medical chart notations made by Dr. Rhodes, the chief resident acting under Dr. Kostin’s supervision. (N.T. 1/23/01 vol. 114-16,25-26,30,32-33, 94, 97.) Dr. Rhodes was unavailable as a witness at the time of trial. Dr. Rhodes, who attended to Mrs. Sweikert after she had complained of an arm injury, recorded the following postop progress notes on December 22,1995: “Assessment/plan postop 1. Stretching of brachial plexus. No leak. Continue suction today.” In addition, on December 26,1995, Dr. Rhodes documented the following in Mrs. Sweikert’s discharge summary: “Postoperatively the patient did well except for some mild parasthesias in her right hand probably secondary to a contusion of the brachial plexus during positioning in the operating room.” Additional defendants filed a limine motion January 16, 2001 seeking exclusion of this evidence as hearsay which I denied January 23, 2001. In ruling on this motion, I agreed with the additional defendants that Dr. Rhodes’ notes constituted hearsay which did not fall within the business records exception. See Pa.R.E. 803(6) and comment (1998). However, I found the notes within the exception as an admission made by the party opponents, defendants Dr. Kostin and Harrisburg Hospital. Pa.R.E. 803(25). The hearsay exception for party opponent admissions provides as follows:

“Rule 803. Hearsay exceptions; Availability of declarant immaterial
“The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness.
“(25) Admission by party-opponent
“The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement may be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).”

The applicable exception here was (D) wherein the notes made by Dr. Rhodes, an agent of Dr. Kostin and Harrisburg Hospital, constituted “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” As set forth recently by the Superior Court, the elements necessary to establish this exception are: “(1) declarant was an agent or employee of the party opponent; (2) the declarant made the statement while employed by the principal; and (3) the statement concerned a matter within the scope of the agency or employment.” Sehl v. Vista Linen Rental Serv. Inc., 763 A.2d 858, 862 (Pa. Super. 2000). (emphasis in original) These elements were clearly proven, assuming defendants were “party opponents.”

Additional defendants argued this hearsay exception did not apply since the hearsay evidence was offered against the additional defendants, which was plaintiffs only “opponent” in the case at the time of trial, defendants Dr. Kostin and Harrisburg Hospital having settled. They argue that since Dr. Rhodes was not the additional defendants’ agent or employee, but rather the defendants, his hearsay did not fall under the exception provided in Rule 803(25)(D).

The issue of whether a defendant who has settled, but remains active in the case, remains a “party opponent” for purposes of this rule, appears one never addressed in Pennsylvania. Nevertheless, I concluded the defendants were a party opponent since they participated in the case and, most importantly, the jury was asked to render a verdict on their liability.

Additional defendants also argue that even if Dr. Rhodes’ notes were properly offered against defendants Dr. Kostin and Harrisburg Hospital, they were still inadmissible against the additional defendants and as such, this court should have, sua sponte, delivered a curative instruction to the jury. The relevant Rule of Evidence on this issue provides as follows:

“Rule 105. Limited admissibility
“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.” Pa.R.E. 105.

As set forth in Rule 105, the court is given discretionary authority to sua sponte submit a curative instruction. Additional defendants have provided no authority for the proposition that this court’s failure to act is reversible error, particularly where nothing precluded additional defendants from requesting the same.

The additional defendants also seek a judgment n.o.v. Specifically, they contend that plaintiffs failed to present sufficient evidence of improper arm positioning wherein plaintiffs offered only a single standard of care witness on that point and that his testimony contradicted that of all the operating room participants. Additional defendants assert no two reasonable minds could have differed that Mrs. Sweikert’s arm was properly positioned.

A judgment n.o.v. can be entered where the evidence is insufficient to support the verdict. Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 91, 596 A.2d 203, 206 (1991), appeal denied, 503 Pa. 644, 607 A.2d 254 (1992). It is an extreme remedy which is properly entered only where the facts are so clear that no two reasonable minds could fail to agree that the verdict was improper. Id. 408 Pa. Super, at 91, 596 A.2d at 207. In considering a judgment n.o.v. motion, we must consider the evidence and all inferences which are reasonably deducible from the evidence in a light most favorable to the verdict winner. Id. A motion for judgment n.o.v. may also be entered where the movant is entitled to judgment as a matter of law. Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992).

Plaintiffs’ burden at trial was to prove by a preponderance of evidence that the additional defendants owed Mrs. Sweikert a duty of care, breached its duty, that the breach was the legal cause of Mrs. Sweikert’s injury and that Mrs. Sweikert suffered an actual loss. Hightower-Warren v. Silk, 548 Pa. 459, 463, 698 A.2d 52, 54 (1997). In order to succeed on its judgment n.o.v. motion, additional defendants had to convince this court that plaintiffs failed to satisfy each element of the cause of action. Ludmer v. Nernberg, 433 Pa. Super. 316, 323-24, 640 A.2d 939, 943 (1994).

The evidence and all its reasonable inferences, viewed most favorably to plaintiffs, supported the jury’s verdict. Dr. Martin Gerald Fleishman, a general surgeon who testified as plaintiffs’ expert, stated that he had no doubt that Mrs. Sweikert suffered from a stretch injury and that proper surgical positioning would have prevented such an injury. (N.T. 1/24/01 36.) He opined that Mrs. Sweikert’s arm could not have been in the position as described by Drs. Kostin and Key ser since it would have been impossible to insert the stapling device through the midaxillary port (armpit) to the lung apex due to the size of the stapling device. (N.T. 1/24/01 47.) He concluded her arm must, therefore, have been positioned at an angle significantly greater than 90 degrees. (N.T. 1/24/01 51.) While this testimony contradicted that of additional defendant Dr. Keyser, defendant Dr. Kostin and two defendant hospital nurses who assisted with the surgery, the jury could conclude otherwise, based upon Dr. Fleishman’s testimony:

“Judgment n.o.v.... ‘may not be employed to invade the province of the jury.’ Collincini v. Honeywell Inc., 411 Pa. Super. 166, 172, 601 A.2d 292, 294 (1991). ... Thus, when there is a question of fact to be resolved, it is within the sole purview of the jury. . . . Judgment n.o.v. should not be entered where evidence is conflicting upon a material fact. . . . Thus, where the jury has been presented with conflicting evidence, a motion for judgment n.o.v. should be denied.” Rohm and Haas Co. v. Continental Casualty Co., 732 A.2d 1236, 1248 (Pa. Super. 1999). (citations omitted)

Plaintiffs’ Post-Trial Motion

Plaintiffs take issue with the jury’s finding that defendant Harrisburg Hospital (Pinnacle Health) was allocated 45 percent of the causal negligence when, according to plaintiffs, the proof at trial did not in any way establish their negligence. Thus, plaintiffs seek a new trial limited to determination of comparative fault or alternatively, that the court grant judgment n.o.v. in favor of Harrisburg Hospital and remit its negligence, proportionally reassigning it to defendant Dr. Kostin and the additional defendants, such that Dr. Kostin would be held 78 percent liable and Dr. Keyser, Glamm Anesthesia Services and Anesthesia Associates of Pennsylvania 22 percent liable.

Plaintiffs argue that the only possible negligence that could be the joint responsibility for the three defendant entities found liable was improper arm positioning. Plaintiffs note that the undisputed facts indicated that positioning was the responsibility of either Dr. Kostin solely or Dr. Kostin and Dr. Key ser jointly. The only hospital employee potentially involved in positioning was a circulating nurse. However, plaintiffs contend there was no evidence she had anything to do with positioning, thus, no reasonable jury could have assigned her (the hospital) a greater percentage than the anesthesiologist.

In reviewing a jury’s verdict, we must presume it was consistent unless there is no reasonable theory to support the verdict. McDermott v. Biddle, 544 Pa. 21, 25, 674 A.2d 665, 667 (1995). Plaintiffs assume that the jury based its verdict solely upon their theory that Mrs. Sweikert’s arm was malpositioned. We do not know, however, if the jury found malpositioning the sole cause of injury. The jury may well have factored into its verdict other potential causes, including causes which implicated the actions of Dr. Rhodes. The jury may have found credible testimony that the insertion of a surgical instrument may have caused a contusion to Mrs. Sweikert’s brachial plexus. (N.T. 1/24/01 92,95,129-30.) Dr. Rhodes, defendant hospital’s chief resident, assisted Dr. Kostin with the surgical instrumentation since the surgery required the simultaneous manipulation of three instruments. (N.T. 1/24/01 70-71.) There was also testimony that the chest tube may have been placed too high or inserted too far and could have caused a contusion or compression injury to Mrs. Sweikert’s brachial plexus. (N.T. 1/24/01 92-94, 132-33, 135, 194-95.) The chest tube was inserted preoperatively by Dr. Rhodes and after it was removed for surgery, was reinserted postoperatively, probably by Dr. Rhodes. (N.T. 1/24/01 76-77, 195.) Thus, the jury’s verdict was not inconsistent with the testimony and plaintiffs’ request for a new trial or judgment n.o.v. and a remittitur were rejected.

Accordingly, this court issued an order May 25,2001, denying both parties’ post-trial motions.

      . The verdict was moot as to defendants since they had settled with plaintiffs just prior to trial.

      . The brachial plexus is a group of nerves originating in the spine which course through the shoulder down the arm and includes the radial, median and ulnar nerves, among others. (N.T. 1/23/01 vol. I 26-29.)

      . Following his residency, Dr. Rhodes went to Africa as a missionary surgeon. (N.T. 1/23/01 vol. 173.)

      . The participation of defendants Dr. Kostin and Harrisburg Hospital, through counsel, included providing an opening and closing statement (N.T. 11/22/01 32-41), the questioning of Dr. Kostin on a limited basis following plaintiffs’ extensive examination of him (as of cross) (N.T. 1/23/01 vol. I 5-69, 89-91), providing a short examination of additional defendant Dr. Keyser (N.T. 1/24/01 196-98) and a short examination of additional defendants’ anesthesiologist expert, Dr. Laudes. (N.T. 1/24/01 96-97.) Defense counsel also raised at least two objections during the course of the trial. (N.T. 1/23/01 vol. I 52, 66.) Counsel did not cross-examine any of the three Harrisburg Hospital nurses presented by plaintiffs (N.T. 12, 20, 28) nor plaintiffs’ expert surgeon, Dr. Fleishman. (N.T. 1/24/01 52.) Defense counsel did not independently call any witnesses and at the conclusion of trial, informed the court and the jury, that all the witnesses defendants would have called had been previously called. (N.T. 1/25/01 37.)

      . See N.T. 1/23/01 vol. I 64, 88, 97-98; 1/23/01 vol. II 11, 24, 28-29; 1/24/01 92, 178.

      . Plaintiffs’ motion was titled, in full, “Motion for judgment n.o.v. or, in the alternative, a remittitur as to the jury’s 45 percent allocation of negligence for defendant Pinnacle Health Systems d/b/a Pinnacle Health at Harrisburg Hospital and reapportionment of percentage of fault or grant of new trial limited to apportionment of negligence.”

      . See N.T. 1/23/01 vol. I 85, 88; 1/24/01 44-45, 56, 74-75, 208; 1/25/01 11-12.

      . Attempting to speculate on a jury’s reasoning in reaching a verdict is a challenging task. See generally, Stephen J. Adler, The Jury (1994). Nevertheless, one possible reason the jury assigned defendant hospital 45 percent of the causal negligence was that it (along with its co-defendant Dr. Kostin) provided no representatives in court other than counsel and presented no witnesses. (See n.4.) The jury, noting this apparent half-hearted defense and unaware defendants had settled, may have found that justice warranted apportioning 90 percent of the verdict against them. Defendants’ trial tactic, if it was such, permitted the additional defendants to deflect liability back to defendants Dr. Kostin and the hospital without costing these defendants an additional cent and potentially reducing the additional defendants’ liability.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Stassi v. Ransom Township Zoning Hearing Board

      C.P. of Lackawanna County,
    no. 00-CV-6189.

      Howard C. Terreri, for appellants.

      Donna M. DeVita, for appellee.

      Ronald S. Cusano and Thomas R. Daniels, for intervenor.

      James E. Pocius, for Ransom Township.
    September 24, 2001
   NEALON, J.,

Appellants, Louis Stassi, Reverend Susan Davis, Alan Heyen and the Borough of Old Forge (referred to collectively as Rev. Davis), have filed a land use appeal asserting a procedural challenge to a zoning ordinance that was enacted by Ransom Township on July 25, 2000. Rev. Davis maintains that Ransom violated the requirements of the Municipalities Planning Code, Act of July 31, 1968, P.L. 805 as amended, 53 PS. §§10101-11202, in adopting the 2000 ordinance as a result of which the new zoning code is void ab initio. Since Ransom failed to comply with the mandatory provisions of section 608 of the MPC when it published notice of a public hearing twice within the same calendar week rather than once each week for two successive weeks, the 2000 zoning ordinance must be declared null and void as violative of the public notice requirements of the MPC. Therefore, Rev. Davis’ procedural challenge will be granted.

I. FACTUAL BACKGROUND

In early 1998, Ransom Township retained a consultant, Donato Consulting, to consider the adoption of a new zoning ordinance to replace the zoning law which Ransom had enacted on February 5,1990. (See transcript of validity challenge hearing before Ransom ZHB on 9/ 19/00, pp. 52-56.) Donato Consulting eventually prepared a draft of a new code which was presented to the Ransom Planning Commission at its meeting on April 17, 2000, and discussed by the commission members during a public meeting on June 19, 2000. (See Ransom Planning Commission minutes of meetings dated 4/17/00 and 6/19/00 attached to Alliance’s brief as exhibits E and G.) Under the 1990 zoning ordinance, property owned by the intervenor, Alliance Sanitary Landfill Inc., was located in agricultural (A-l) and open-space/conservation (S-l) zoned districts in which solid waste facilities or landfills were not allowed as permitted uses. The proposed ordinance that was prepared by Donato Consulting rezoned Alliance’s land into a heavy manufacturing (M-2) district where solid waste facilities are expressly designated as permitted uses. (See Ransom Township Zoning Ordinance no. 2000-3, §§301,304,661 and Table 3-1.) Thus, although the 1990 ordinance enabled Alliance to conduct landfill activities on its Ransom property only if it first secured a special exception, the 2000 proposal would entitle Alliance to operate a solid waste facility as a use permitted as of right. (See transcript of proceedings dated 7/11/01, pp. 22-25.)

Section 608 of the MPC provides that “[b]efore voting on the enactment of a zoning ordinance, the governing body shall hold a public hearing thereon, pursuant to public notice.” 53 P.S. §10608. To that end, the Ransom Township Board of Supervisors scheduled a public hearing for Tuesday, July 11, 2000, to consider the adoption of a new zoning ordinance. In anticipation of that public hearing, Ransom published a notice in The Scranton Times on Monday, June 26, 2000, and Saturday, July 1, 2000, which read:

“Public Hearing Scheduled
“The Ransom Township Board of Supervisors will hold a public hearing, pursuant to the Pa. Municipalities Planning Code, at 7 p.m. on July 11, 2000, at the Ransom Township Building, 2435 Hickory Lane. The purpose of the hearing is to consider the adoption of a zoning ordinance and repeal of the previous zoning ordinance enacted February 5, 1990. Copies of the ordinance are available for public inspection at the Ransom Township Building during regular office hours, 6:30 p.m. to 8 p.m. on Tuesdays and Thursdays, or by calling the township at 586-7250 for an appointment.” (See Alliance’s brief, exhibit L.)

Comparable notices were published in The Scranton Times on the same dates with respect to Ransom’s consideration of a new storm water management ordinance and amendments to its subdivision and land development ordinance. (Id.)

The Ransom supervisors conducted a public hearing on July 11, 2000, regarding the adoption of new zoning and storm water management ordinances and amendments to its subdivision and land development ordinance. At that time, a Donato Consulting representative discussed the proposed changes and amendments with the supervisors and eight Ransom residents who were in attendance. None of the appellants in this case were present at the public hearing on July 11, 2000. Following the supervisors’ receipt of “public comment,” the public hearing was adjourned. (Id., exhibit K.)

The Ransom supervisors subsequently scheduled a special meeting for July 25, 2000, to consider the enactment of the new zoning ordinance. On July 18, 2000, notice of that special meeting was published in The Scranton Times by the Ransom solicitor. The published notice advised the public about the date, time and purpose of the special meeting, set forth a “summary of the proposed ordinance” by identifying the titles of its nine articles, and represented that copies of the ordinance were available for public inspection at the Ransom Township Building, the Lackawanna County Planning Commission, and The Scranton Times. (Id., exhibit N.) A special meeting of the Ransom supervisors was held on July 25,2000, and attended by 17 individuals, including Heyen and other residents of Old Forge. After receiving public comment, the supervisors voted unanimously “to repeal the current zoning ordinance enacted February 5,1990” and “to enact the proposed zoning ordinance” which had been drafted by Donato Consulting. (Id., exhibit M.)

On August 23, 2000, Rev. Davis presented a validity challenge to the 2000 zoning ordinance by filing a “notice of challenge to zoning ordinance and map” with the supervisors and ZHB. In her challenge, Rev. Davis asserted that Ransom failed to: (1) furnish notice to Old Forge, as an adjacent municipality, of the proposal to amend Ransom’s zoning map; (2) publish appropriate “notice of the required public hearing” for enactment of a new ordinance; (3) require its planning agency to prepare the text and map of the proposed ordinance, present recommendations to the board of supervisors, and furnish “the required public notice of its meeting;” (4) timely and adequately “post the land affected by its rezoning;” and (5) “supply a copy of the ordinance to a newspaper of general circulation serving the township.” (Id., exhibit A.) On September 19, 2000, the ZHB conducted a hearing regarding Rev. Davis’ validity challenge, at the conclusion of which it took the matter under advisement for issuance of a decision within 45 days. (See transcript of “validity challenge to the Ransom Township zoning ordinance map” on 9/19/00, p. 98.) During a subsequent meeting on October 9,2000, the ZHB voted unanimously to reject Rev. Davis’ validity challenge. (See transcript of “validity challenge to the Ransom Township zoning ordinance map” on 10/9/00, pp. 4-5.)

The ZHB later submitted its written decision on November 14, 2000, and determined that although Rev. Davis had standing to appeal as a resident of Ransom, she “failed to meet her burden of proof in showing that the procedures followed by Ransom Township were defective or in violation of the Municipalities Planning Code.” (See appellants’ notice of land use appeal, exhibit B, ¶¶2-3.) Specifically, the ZHB found that: (1) the MPC did not obligate Ransom to notify Old Forge “of the proposed adoption of the new zoning ordinance;” (2) Ransom complied with the MPC’s requirements governing advertisements and public hearings relative to the adoption of a new zoning ordinance; and (3) the planning commission was not required “to hold a public hearing prior to making its recommendations” to the supervisors concerning the new ordinance. (Id., ¶¶4-7.) (emphasis in original) The ZHB did not make factual findings or legal conclusions in its written decision with respect to Rev. Davis’ arguments that the affected land had not been properly posted or that the proposed ordinance had not been duly furnished to a newspaper of general circulation.

On December 13, 2000, Rev. Davis filed the instant land use appeal maintaining that the 2000 zoning ordinance should be invalidated on the grounds that: (1) notice of the public hearing on July 7,2000, was published twice within the same calendar week rather than during two successive weeks as required by the MPC; (2) the Ransom planning commission neglected to furnish public notice of its meeting; (3) the affected land was not properly posted prior to adoption of the ordinance; (4) advance notice was not provided to Old Forge with regard to the prospective adoption of a new zoning ordinance and map; (5) an additional public hearing was not convened by Ransom to discuss revisions which had been made to the proposed ordinance subsequent to the public hearing on July 11, 2000; (6) recommendations and explanatory materials were not furnished to the Ransom supervisors by the planning commission; and (7) a copy of the ordinance was not supplied to newspaper of general circulation. (See appellants’ notice of land use appeal, ^2(a)-(g).) Upon learning of this land use appeal in April 2001, Alliance promptly filed a petition to intervene on May 17, 2001, and by memorandum and order dated July 26,2001, Alliance’s petition to intervene was granted. See Stassi v. Ransom Township Zoning Hearing Board, 102 Lacka. Jur. 687 (2001).

Rev. Davis has preserved five principal issues for review. First, she maintains that section 608 of the MPC required Ransom to hold a public hearing “pursuant to public notice” before it enacted the new zoning ordinance and that section 107 of the MPC mandates that such notice be published in two successive weeks. Since the notice of the public hearing on July 11,2000, was advertised twice in The Scranton Times during the same calendar week, Rev. Davis posits that the public notice was deficient under the MPC. Although the ZHB and Alliance acknowledge that Ransom failed to provide public notice during two successive weeks, they submit that any such error was “harmless” and “de minimis” since eight other members of the public did attend the hearing on July 11,2000, and Ransom “substantially” complied with the “fundamental” notice and publication provisions of the MPC. (See ZHB’s memorandum of law, p. 5; Alliance’s brief, pp. 10-15.)

Second, Rev. Davis alleges that section 607 of the MPC obligated the Ransom Planning Commission to provide the Ransom supervisors with recommendations and explanatory materials regarding the proposed ordinance and to “hold at least one public meeting pursuant to public notice” in preparing the new law. See 53 P.S. §10607(a)-(c). According to Rev. Davis, the planning commission met on June 19, 2000, to discuss the proposed ordinance and map, but did not furnish public notice of the same nor did it present recommendations and explanatory materials to the supervisors. Since section 607 of the MPC states that the foregoing procedures “shall be a condition precedent to the validity of a zoning ordinance adopted pursuant to this Act,” 53 P. S. § 10607(d), Rev. Davis asserts that the 2000 ordinance should be invalidated for that reason. The ZHB and Alliance counter that the planning commission records clearly document that the ordinance and map were duly studied by the commission at a public meeting and thereafter referred to the supervisors for consideration. Once again, the ZHB and Alliance concede that public notice of the planning commission meeting on June 19,2000, was not advertised, but nevertheless contend that such lack of notice did not prejudice the public as the planning commission is “an advisory body rather than a decision-making body” and the appellants did attend the supervisors’ special meeting on July 25, 2000, where the “decision-making body” adopted the ordinance. (See ZHB’s memorandum of law, pp. 5-6; Alliance’s brief, pp. 16-17.)

Third, Rev. Davis avers that the 2000 zoning ordinance constituted an amendment of an existing ordinance rather than a repeal and replacement of a prior law since it was not written in accordance with a newly drafted comprehensive plan. See e.g., Budco Theaters Inc. v. Zoning Hearing Board of Springettsbury Township, 159 Pa. Commw. 257, 263-64, 632 A.2d 1072, 1075-76 (1993) (zoning enactment was a new ordinance rather than an amendment to the previous ordinance in that it was written in accordance with a newly drafted comprehensive plan). Rev. Davis argues that before Ransom could adopt a zoning amendment with a map change, section 609(b) of the MPC required it to conspicuously post notice of a public hearing on the affected land “at points deemed sufficient by the municipality along the tract to notify potentially interested citizens.” 53 PS. §10609(b). The ZHB and Alliance submit that Rev. Davis’ argument is meritless since the posting requirements of section 609(b) are only applicable to zoning amendments and Ransom did not simply amend its existing zoning law, but instead completely repealed its prior ordinance and supplanted it with a new zoning code.

Fourth, Rev. Davis contends that section 408 of the MPC obligated Ransom to notify Old Forge as an adjacent municipality prior to adopting the 2000 zoning ordinance. In response, the ZHB and Alliance maintain that the notice provisions of section 408 apply only if the “municipality proposes to adopt an official map, or amendment thereto, that shows any street or public lands intended to lead into any adjacent municipality ....” 53 PS. § 10408(c). The ZHB and Alliance assert that the proposed ordinance and map did not affect any streets or land leading into Old Forge and were not part of a comprehensive plan under 53 PS. §§10302 and 10401. Hence, they reason that section 408(c) is inapplicable to the 2000 ordinance.

Last, Rev. Davis posits that section 610(a) of the MPC required Ransom to publish the proposed ordinance “in one newspaper of general circulation in the municipality not more than 60 days nor less than seven days prior to passage.” Under section 610(a), if the full text of the ordinance is not included in the publication, a copy of the proposed ordinance must “be supplied to a newspaper of general circulation in the municipality at the time the public notice is published” and “be filed in the . . . county office designated by the county commissioners. ...” 53 PS. § 10610(a)(1), (2). As stated above, the notice published by the Ransom solicitor did not include the full text of the ordinance but represented that a copy of the ordinance was available for public inspection at The Scranton Times and the Lackawanna County Planning Commission. (See Alliance’s brief, exhibit N.) However, the parties have stipulated on appeal that Ransom neglected to provide a copy of the ordinance to The Scranton Times or any other newspaper of general circulation.

Consequently, Rev. Davis contends that the 2000 zoning ordinance should be declared void based upon Ransom’s violation of the publication requirements of section 610(a). The ZHB counters that “the township secretary testified [during the validity challenge hearing] that she received no requests from The Scranton Times for a map or a copy of the ordinance due to any inquiries (N.T. 36).” (See ZHB’s memorandum of law, p. 6.) Therefore, the ZHB “submits that the failure to supply a copy of the proposed ordinance to the newspaper was harmless error.” (Id.) Counsel for the parties presented extensive oral argument on September 11, 2001, at the conclusion of which this matter was submitted for a decision.

E. DISCUSSION

(A) Scope of Review

The scope of judicial review in a land use appeal where the trial court has not taken any additional evidence is limited to a determination of whether the zoning hearing board committed an error of law or abused its discretion. Phillips v. Zoning Hearing Board of Montour Township, 776 A.2d 341, 342 n.2 (Pa. Commw. 2001); World School House Residences Ltd. Partnership v. Zoning Hearing Board of the City of Scranton, 102 Lacka. Jur. 14, 18 (2000), aff’d, 777 A.2d 544 (Pa. Commw. 2001). A governing body abuses its discretion if its findings are not supported by substantial evidence. Ruf v. Buckingham Township, 765 A.2d 1166, 1168 n.2 (Pa. Commw. 2001); City of Scranton v. Zoning Hearing Board of City of Scranton, 101 Lacka. Jur. 159, 161 (1999), aff’d, 767 A.2d 33 (Pa. Commw. 2000). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103, 104 (Pa. Commw. 2001); Glynn v. Zoning Hearing Board of Dickson City, 101 Lacka. Jur. 145, 151 (1999). Furthermore, when a zoning appeal presents a question of law, the scope of appellate review is plenary. Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 459 n.4, 751 A.2d 165, 166 n.4 (2000).

(B) Notice of Public Hearing on July 11, 2000

Rev. Davis first argues that Ransom failed to properly advertise its public hearing on July 11, 2000, in accordance with the provisions of the MPC. Section 608 of the MPC states that “[b]efore voting on the enactment of a zoning ordinance, the governing body shall hold a public hearing thereon, pursuant to public notice.” 53 P.S. §10608. It is beyond legitimate dispute that section 608 governs the public notice to be furnished with regard to the public hearing to be held prior to the adoption of a new zoning ordinance. See Belle Vernon Area Concerned Citizens v. Board of Commissioners of Township of Rostraver, 87 Pa. Commw. 474, 478-79, 487 A.2d 490, 492-93 (1985) (holding that township gave proper notice under section 608 of public hearing on proposed zoning ordinance); Northampton Residents Association v. Northampton Township Board of Supervisors, 14 Pa. Commw. 515, 523-24, 322 A.2d 787, 792 (1974) (section 608 governs public notice of public hearings to be held to enact a zoning ordinance whereas section 609 controls the notice applicable to zoning amendments). The ZHB contends that the public notice required for the public hearing on July 11, 2000, is determined by section 610(a) of the MPC which provides that “[t]he governing body shall publish the proposed ordinance or amendment once in one newspaper of general circulation in the municipality not more than 60 days nor less than seven days prior to its passage.” 53 P.S. § 10610(a). The ZHB’s argument in this regard is devoid of merit since the plain language of section 610(a) clearly reflects that it applies only to the newspaper publication of the proposed ordinance or amendment itself, not to the required notice of the public hearing which must be conducted before the governing body may vote on the enactment of the proposed ordinance or amendment. See Valianatos v. Zoning Hearing Board of Richmond Twp., 766 A.2d 903, 905 (Pa. Commw. 2001) (“Section 610 of the MPC sets forth the requirements for publication, advertisement, and availability of proposed zoning ordinances and amendments.”). Therefore, Rev. Davis’ first argument is governed by the publication requirements of section 608 of the MPC, not section 610. Belle Vernon Area Concerned Citizens, supra.

The MPC contains a definitional section which confirms that “[t]he following words and phrases when used in this Act shall have the meanings given to them in this subsection unless the context clearly indicates otherwise.” 53 P.S. § 10107(a). Section 107 of the MPC defines the phrase “public notice” as “notice published once each week for two successive weeks in a newspaper of general circulation in the municipality.” Id. (emphasis added) See also, Belle Vernon Area Concerned Citizens, supra at 478, 487 A.2d at 492 (applying section 107’s “public notice” definition to section 608); Northampton Resident’s Association, supra at 523-24, 322 A.2d at 792 (same). Although the MPC does not expressly define the term “successive weeks,” section 1909 of the Statutory Construction Act does and provides:

“Time: Publication for successive weeks
“Whenever in any statute providing for the publishing of notices, the phrase ‘successive weeks’ is used, weeks shall be construed as calendar weeks. The publication upon any day of such week shall be sufficient publication for that week, but at least five days shall elapse between each publication. At least the number of weeks specified in ‘successive weeks’ shall elapse between the first publication and the day for the happening of the event for which publication shall be made.” 1 Pa.C.S. §1909. Thus, the phrase “successive weeks” as used in the MPC must be interpreted as referring to “calendar weeks.”

While neither the MPC nor the Statutory Construction Act contains a specific definition of the phrase “calendar weeks,” it is a fundamental precept of statutory construction that all words and phrases are to be construed based upon their common usage and ordinary meaning. See 1 Pa.C.S. § 1903(a). In that regard, the term “calendar week” has long been interpreted as referring to a common calendar week beginning on Sunday and concluding on Saturday. See Currens v. Blocher, 21 Pa. Super. 30 (1902) (citing Ronkendorff v. Taylor, 29 U.S. 349 (1830)); Bucher v. Boyer, 5 Lacka. Jur. 98 (Schuylkill Cty. 1903) (invalidating sheriff sale which had been advertised in the Pottsville Daily Republican on Wednesday, September 9,1903, Friday, September 11,1903, and Saturday, September 12, 1903, since those publications all fell within the same calendar week). Cf. North Penn School District v. Unemployment Compensation Board of Review, 662 A.2d 1161, 1163 (Pa. Commw. 1995) (noting that unemployment compensation regulations define the word “week” as “the calendar week — Sunday through Saturday.”). See also, People v. Rexford, 228 Mich. App. 371, 375, 579 N.W.2d 111, 113-14 (1998) (“[although the term ‘calendar week’ is not defined in the administrative rule itself, giving the term its ordinary and generally accepted meaning, and relying on past case law, we read ‘calendar week’ to mean a seven-day period from Sunday through Saturday.”). As a consequence, a notice may be regarded as “published once each week for two successive weeks” only if it is duly advertised between Sunday and Saturday of one calendar week and again between Sunday and Saturday of the following calendar week.

In the present land use appeal, Ransom scheduled its public hearing pursuant to 53 P.S. §10608 for Tuesday, July 11, 2000. However, the public notice of that hearing was published twice during the same calendar week on Monday, June 26, 2000, and Saturday, July 1, 2000. By virtue of the fact that those advertisements appeared twice in The Scranton Times during a single calendar week, public notice was not published “once each for two successive weeks” as required by 53 P.S. §§10107 and 10608.

The Supreme Court of Pennsylvania has consistently held that “the procedures established by the legislature for the enactment of ordinances must be followed strictly in order for an ordinance to be valid.” Lower Gwynedd Township v. Gwynedd Properties Inc., 527 Pa. 324, 327, 591 A.2d 285, 287 (1991) (citing West Conshohocken Borough Appeal, 405 Pa. 150, 173 A.2d 461 (1961)). For that reason, the notice and publication requirements for the adoption of ordinances have been characterized as “mandatory and non-waivable,” Cranberry Park Associates, supra at 461, 751 A.2d at 168, and if a township does not comply with the public notice requirements of the MPC in scheduling a public hearing, “then the appropriate zoning enactment is made null and void.” Valianatos, 766 A.2d at 905. As the Supreme Court has clearly stated:

“The right of the public to participate in the enactment of municipal ordinances requires that municipalities strictly follow the prescribed notice procedures in order to validate any ensuing legislation.
“The precedents of this court have been consistent in holding that statutory publication requirements are mandatory and that ordinances adopted without strict compliance are void.” Lower Gwynedd Township, supra at 329, 591 A.2d at 287-88; Tinicum Township v. Tinicum Township Zoning Hearing Board, 154 Pa. Commw. 476, 483, 624 A.2d 232, 236 (1993).

The ZHB and Alliance do not dispute the fact that Ransom failed to strictly comply with the public notice mandates of the MPC when it advertised the public hearing twice during the same calendar week. Nevertheless, they submit that Ransom substantially complied with the MPC’s notice requirements and that any advertisement deficiencies were harmless since the appellants subsequently attended the special meeting on July 25, 2000, at which time the ordinance was enacted. The propositions advocated by the ZHB and Alliance overlook the fact that “[t]he Supreme Court [has] expressly rejected the argument that substantial compliance with the publication notice provisions is sufficient.” Tinicum Township, supra at 482, 624 A.2d at 235. Rather, “[t]hese requirements are strictly applied and mere substantial compliance of the publication and notice provisions is not sufficient.” Valianatos, 766 A.2d at 905.

The “harmless error” argument advanced by the ZHB and Alliance likewise lacks merit. It is well-settled that “[i]f a published notice fails to satisfy the statutory requirements, the fact that members of the public, or even the appellants themselves, appeared at the hearing does not breathe life into an otherwise void ordinance.” Lower Gwynedd Township, supra at 329, 591 A.2d at 287. The statutory notice provisions governing the enactment of ordinances “are designed to protect public interests, not private ones, hence there is no duty on one raising a challenge on this basis to show prejudice.” Tinicum Township, supra at 482, 624 A.2d at 235. Hence, any contention that Rev. Davis must demonstrate prejudice to succeed with her effort to invalidate the 2000 ordinance as violative of 53 RS. §10608 is wholly unsupported by Pennsylvania case law.

Inasmuch as Ransom failed to comply with the mandatory public notice requirements of section 608 in advertising the public hearing on July 11, 2000, the new zoning ordinance which was enacted on July 25, 2000, must be declared null and void. Such a conclusion may appear somewhat harsh to Ransom since the 2000 ordinance would have been deemed validly enacted if the second notice had simply been advertised one day later on Sunday, July 2, 2000. However, the appellate courts of this Commonwealth have uniformly held that the public notice requirements of the MPC are mandatory and that an ordinance which is adopted without strict adherence to those provisions must be declared void ab initio. See Valianatos, 766 A.2d at 906 (affirming nullification of zoning ordinance even though the “publication was a good faith effort by the township to comply with the relevant notice provisions in the MPC” and the Commonwealth Court agreed that stringent application of the MFC’s public notice language was “splitting hairs”).

Accordingly, the zoning ordinance which was enacted by Ransom on July 25, 2000, must be invalidated for failure to comply with the public notice mandate of 53 P.S. §§10107 and 10608. The 2000 ordinance not only adopted a new zoning code for Ransom, but also repealed its earlier zoning law which had been enacted on February 5, 1990. Since the 2000 ordinance is null and void, its concomitant repeal of the 1990 zoning ordinance is likewise invalid. Mazurek v. Farmers Mutual Fire Insurance Co. of Jamestown, 320 Pa. 33, 38, 181 A. 570, 573 (1935) (repeal of prior law is ineffective if the legislation in which it is contained is declared void); Policichio v. Zoning Hearing Board of Borough of Throop, 100 Lacka. Jur. 350, 356 (1999) (invalidation of 1994 zoning ordinance also nullified its repeal of 1986 zoning code). Consequently, until such time as Ransom has properly published, advertised and enacted a new zoning ordinance in compliance with the provisions of the MPC, the zoning code which was adopted by Ransom on February 5, 1990, shall govern all zoning matters in Ransom.

ORDER

And now, September 24,2001, upon consideration of the land use appeal of appellant, Susan Davis, the memoranda of law submitted by the parties, and the oral argument of counsel on September 11,2001, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The procedural challenge asserted by appellant, Susan Davis, pursuant to section 608 of the Municipalities Planning Code, 53 P.S. §10608, is granted;

(2) In light of the failure of Ransom Township to provide appropriate public notice of its public hearing on July 11, 2000, in accordance with 53 P.S. §§10107 and 10608, the zoning ordinance (no. 2000-3) enacted by Ransom Township on July 25,2000, is declared null and void ab initio;

(3) Since the zoning ordinance which was adopted by Ransom Township on July 25, 2000, is null and void ab initio, its repeal of the prior zoning code which had been enacted by Ransom Township on February 5, 1990, is likewise void and ineffective; and

(4) Until such time as Ransom Township enacts a new zoning ordinance in compliance with the provisions of the Municipalities Planning Code, 53 PS. §§10101-11202, the enforceable zoning law in Ransom Township will be the zoning ordinance that was adopted by Ransom Township on February 5, 1990.

      . Stassi and Heyen are residents of Old Forge and do not own any property in Ransom, and for that reason, the Ransom Township Zoning Hearing Board concluded that Stassi, Heyen and Old Forge did not have standing to challenge Ransom’s adoption of the 2000 zoning ordinance. However, the ZHB found that Rev. Davis, as a Ransom resident and property owner, did have standing to advance a procedural challenge. See Sunnyside Up Corp. v. City of Lancaster Zoning Hearing Board, 739 A.2d 644,648 (Pa. Commw. 1999) (residents and property owners in close proximity to a proposed land use are aggrieved parties with standing to appeal zoning board decisions), app. denied, 563 Pa. 636, 758 A.2d 666 (2000). As there is no dispute that Rev. Davis has standing in this case, the appellants will be referred to singularly as “Rev. Davis” for purposes of this land use appeal.

      . Rev. Davis’ fifth objection concerning the need for another public hearing to address changes made to the ordinance draft after July 11,2000, was not asserted in her original validity challenge before the ZHB. (Compare “notice of challenge to zoning ordinance and map” dated 8/23/00, Hfa)-(e) with “notice of land use appeal,” fl2(a)-(g).) As such, Rev. Davis has waived her ability to assert that issue on appeal. See Segal v. Zoning Hearing Board of Buckingham Township, 771 A.2d 90, 94 (Pa. Commw. 2001) (a party in a land use appeal may not present an issue to the trial court if it did not raise the question before the zoning hearing board). Therefore, Rev. Davis’ fifth issue will not be considered in this appeal. See Baer v. Zoning Hearing Board of Quincy Township, 782 A.2d 597, 601-602 (Pa. Commw. 2001).

      . The ZHB mischaracterizes the substance of the cited testimony during the validity challenge hearing. The Old Forge borough manager, not the Ransom Township secretary, testified that she did not contact The Scranton Times to request a copy of the zoning ordinance or map. (See “validity challenge to the Ransom Township zoning ordinance map” on 9/19/00, p. 36,11. 21-25.) Nothing in the reproduced record reflects that Ransom never received a request from The Scranton Times for a copy of the ordinance or map or that no citizen ever contacted The Scranton Times to review them.

      . The introductory provision of the Statutory Construction Act states that its rules of interpretation must be followed when construing a Pennsylvania statute unless the application of those rules would result in a construction that is inconsistent with the manifest intent of the General Assembly. See 1 Pa.C.S. §1901.

      . In light of the grant of Rev. Davis’ first objection predicated upon section 608 of the MPC, it is unnecessary to consider the remaining four issues which she has presented for review. At the time of oral argument, the ZHB indicated that if the 2000 ordinance were to be declared void ab initio by the court, Ransom would respond by simply reenacting the same zoning legislation after the appropriate hearings and meetings had been conducted and the requisite notices and publications had been furnished. In that event, and in order to stave off another successful legal challenge by the appellants, it would be prudent for Ransom to err on the side of caution by addressing the procedural infirmities asserted by the appellants in this appeal when Ransom considers and enacts its new zoning ordinance.


author: HERMAN, J.,

text:
    McDonald v. Washington County Hospital Association

      C. P. of Franklin County,
    no. A.D. 1998-475.

      Robin J. Marietta, for plaintiff.

      Stephanie Carfley, for defendant Washington Cty. Hospital Ass’n.
    February 27, 2001
   HERMAN, J.,

INTRODUCTION

Before the court are preliminary objections filed by defendant Washington County Hospital to the complaint filed by the plaintiff in this action alleging medical malpractice in the death of plaintiff’s decedent. The two objections are Pennsylvania’s lack of personal jurisdiction over the defendant and the insufficiency of the complaint.

DISCUSSION

Jurisdiction

Under the due process clause of the Fourteenth Amendment to the United States Constitution, there are two grounds for a state to exercise personal jurisdiction over a nonresident defendant. The first, general jurisdiction, occurs where the defendant maintains continuous and systematic contacts with the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992). The defendant must have certain minimum contacts with the forum state such that its exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.2d 95 (1945); Insulations Inc. v. Journeymen Welding & Fab, 700 A.2d 530 (Pa. Super. 1997). Minimum contacts can be found where a defendant’s conduct and his connection with the forum state are such that it was reasonable for him to anticipate being called to defend himself there. Random, fortuitous and attenuated contacts are not enough, nor is unilateral activity in the forum by others who claim some relationship with the defendant. Instead the defendant must have purposefully directed his activities to the forum state and its residents and conducted himself in a manner indicating he has availed himself of the privileges and benefits of that forum’s laws such that he should be subject to those laws. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Burger King; Surgical Laser Technologies v. C.R. Bard Inc., 921 F. Supp. 281, 285 (E.D. Pa. 1996); Kubik.

A second basis for jurisdiction can be found in the specific conduct of the defendant which gave rise to the litigation (specific jurisdiction). Helicopteros v. Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Specific personal jurisdiction has a more narrow scope than general jurisdiction, and focuses on the particular actions of the defendant which gave rise to the underlying cause of action. Hall-Woolford Tank Co. Inc. v. R.F. Kilns Inc., 698 A.2d 80 (Pa. Super. 1997). Specific jurisdiction may arise where the defendant’s contacts with the forum state are infrequent but are nevertheless related to the plaintiff’s claim.

Pennsylvania’s long-arm statute allows Pennsylvania courts to exercise personal jurisdiction over a corporation where it carries on “continuous and systematic part of its general business within this Commonwealth.” 42 Pa.C.S. §5301(a)(2)(iii). Under section 5322(b), jurisdiction may be exercised over a nonresident defendant “to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contacts with this Commonwealth allowed under the Constitution of the United States.” A Pennsylvania court may exercise personal jurisdiction over a nonresident defendant based on the relationship between the defendant, the Commonwealth and the facts underlying the litigation, and also where the defendant has sufficient minimum contacts to satisfy federal due process requirements. In other words, even where jurisdiction cannot be based on a relationship between the defendant, the forum state and the particular conduct or activities underlying the cause of action, Pennsylvania courts may exercise jurisdiction if the defendant’s general activities within the Commonwealth are sufficiently “continuous and substantial” under federal constitutional standards. Remick v. Manfredy, 52 F. Supp. 452 (E.D. Pa. 1999).

It is well-established that the court must consider preliminary objections, including a challenge to jurisdiction, in the light most favorable to the non-moving party. Once the defendant comes forward with support for its jurisdictional objection, the burden shifts to the plaintiff to show by a preponderance of the evidence there is statutory and constitutional support for the forum state’s exercise of jurisdiction. Snider v. Howard S. Slatkin Inc., 105 F.Supp.2d 428 (E.D. Pa. 2000); Hall-Woolford. The plaintiff must show prima facie evidence of jurisdiction by establishing with reasonable particularity sufficient contacts between the defendant and the forum state. Snider; Crompton v. Park Ward Motors Inc., 299 Pa. Super. 40, 445 A.2d 137 (1982).

The hospital argues there is no basis for Pennsylvania to exercise general or specific jurisdiction because the complaint contains no facts showing it has continuous and systematic contacts with the Commonwealth sufficient to establish minimum contacts, specifically, that it has not purposefully availed itself of the Pennsylvania market or directed its business activities toward Pennsylvania residents. The hospital points to the statements in the affidavit of Nelson Tillou, Washington County Hospital director of risk management, dated August 2, 2000, attached as exhibit A to the hospital’s preliminary objections that the hospital (1) is not incorporated in Pennsylvania, (2) is not qualified as a foreign corporation under Pennsylvania law, (3) is a Maryland corporation with its offices and principal place of business in Maryland, (4) is located in Maryland and (5) all treatment of the plaintiff’s decedent by the hospital staff occurred in Maryland. The plaintiff does not dispute these statements of fact. The hospital argues this court cannot exercise specific jurisdiction because the complaint does not aver the cause of action arose from the hospital’s actions in Pennsylvania and the plaintiff failed to plead the hospital purposefully sought to attract Pennsylvania consumers to its facility.

The plaintiff orally argued that Pennsylvania has jurisdiction over the hospital because of its geographic proximity to the state border (6 miles, a fact not in the record) and based on its continuous solicitation of patients from Pennsylvania by three methods. One is the hospital’s grant of admitting privileges to physicians, including the physicians named as defendants, who are licensed to practice in Pennsylvania and maintain offices in the Commonwealth. The plaintiff argues that the hospital granted the defendant physicians admitting privileges and permitted them to treat the plaintiff’s decedent knowing that part of her follow-up care would be provided in Pennsylvania. Granting such privileges to the defendant physicians and other physicians knowingly fosters the routine admission of Pennsylvania residents to the hospital, plaintiff asserts. Plaintiff’s counsel represented to the court that the decedent was specifically told by hospital personnel to follow up with her treating physicians who had admitting privileges at the hospital while maintaining their offices and licenses in Pennsylvania. Although the complaint does not aver these physicians have admitting privileges at the hospital, it does aver they have their offices and licenses in the Commonwealth.

Another means by which the hospital regularly solicits patients from Pennsylvania, according to the oral representations of plaintiff’s counsel, is its use of Pennsylvania-based ambulance services to bring those patients to its facility. The plaintiff points to the defendant’s use of the Greencastle Ambulance Service, an independent company with its principal place of business in Pennsylvania, which delivers Pennsylvania residents to the hospital for treatment on a regular basis, including the plaintiff’s decedent, who was transported there on October 19,1996 when she suffered her initial injury. Lastly, the plaintiff indicated to the court at oral argument that the hospital actively solicits business from the Commonwealth by advertising its services to Pennsylvania residents. The record does not contain these facts.

It is clear the plaintiff has failed to place on the record sufficient facts supporting this court’s jurisdiction over the hospital. The only facts pled in the complaint referring to jurisdiction are that the defendant physicians have their licenses and offices in the Commonwealth and that the decedent returned to the hospital for evaluation and treatment with at least one of those physicians numerous times over the 18-month period before her death. It is equally clear, however, that the plaintiff is entitled to amend the complaint or to supplement the record with these missing facts. “The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2). If the record lacks all the facts necessary to resolve an objection to jurisdiction, the court should receive evidence on the issue through interrogatories, depositions or an evidentiary hearing. Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 602 A.2d 864 (1992); Laffey v. Lehigh Valley Daily Co-op, 257 Pa. Super. 45, 390 A.2d 238 (1978). The parties’ failure to provide the evidence necessary for the proper determination of the issue does not excuse the court from further inquiry. The court is obligated to receive such evidence before ruling on the objection. Holt Hauling and Warehousing Systems Inc. v. Aronow Roofing Co., 309 Pa. Super. 158, 454 A.2d 1131 (1983).

According to the hospital, allowing the plaintiff to clarify and supplement the record will still leave the court without sufficient contacts to establish jurisdiction because the hospital’s proximity to Pennsylvania and any advertising it undertakes for patients here are not enough for minimum contacts. The hospital cites Snider v. Slatkin, 105 F. Supp.2d 428 (E.D. Pa. 2000) in which the court found neither general or specific personal jurisdiction in Pennsylvania where the only evidence of contacts was the defendant’s solicitation through its web site aimed at a national audience rather than Pennsylvania residents in particular. The use of interstate communications facilities such as the telephone, mail or fax is insufficient in itself to establish minimum contacts. Geographic proximity also was found insufficient in itself for jurisdiction. Id. The court will sustain the hospital’s objection to jurisdiction without prejudice to the plaintiff’s right to amend the complaint or supplement the record as to the contacts represented by counsel during oral argument and other similar information. At that point, dismissal of the action may be warranted if the plaintiff is unable to develop additional facts in support of jurisdiction.

Insufficiency of Pleading

The defendants ask the court to strike allegations in the complaint on grounds of insufficient specificity. In paragraphs 136, 147, 150, 153, 156 and 159, the plaintiff sets out the claims of negligence against the defendant physicians. Paragraphs 147, 150, 153, 156 and 159 (specifically their subparagraphs a, b, c, q, r, v, y, aa, bb, cc, ff, hh, 11, mm, and qq) contain allegations against Drs. Stowell, Cirincione, Milford, Amalfitano and Friedman, respectively. Count VIII alleges the hospital is vicariously liable for these physicians’ negligence as set out in the above paragraphs and subparagraphs.

Subparagraph (a) of the paragraphs at issue asserts the physicians failed to properly examine, monitor, evaluate and treat the plaintiff’s decedent between October 1996 through February 1998. The remaining subparagraphs allege the physicians failed to provide appropriate and timely treatment to the plaintiff’s decedent. The hospital contends these allegations are bald, vague, generic, boilerplate and conclusory and cannot be defended against because they are subject to numerous interpretations. As an alternative to striking these paragraphs and subparagraphs, the defendant requests the plaintiff be required to plead these allegations with greater specificity.

Rule 1019(a) requires that the material facts on which a cause of action or defense is based should be stated in a concise and summary form. Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 505 A.2d 973 (1985). A party is not required to plead evidence. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). Whether an averment is specific enough to allow a defendant to prepare his defense should be decided based on a review of the pleading as a whole. The court has broad discretion in determining whether the pleading is sufficiently specific in that regard. Id.

The complaint consists of 170 paragraphs, many of which contain numerous subparagraphs averring negligence on the part of the defendant physicians and the hospital in connection with the death of plaintiff’s decedent. The complaint essentially alleges the decedent, who suffered an arm injury at work, died of complications arising from the defendant physicians’ failure to render proper medical treatment to her during the 18 months following the initial injury. When reviewed in its entirety, the complaint sets forth in detail the course of medical care rendered to the decedent during those 18 months. This course of treatment included hospitalizations, diagnostic procedures, surgeries, and the prescribing and administering of medications. Clearly the paragraphs and subparagraphs at issue are specific enough to enable the hospital to prepare its defense when read in conjunction with all the averments of the complaint. Consequently the hospital’s motion to strike those paragraphs will be denied. The alternative motion for a more specific pleading as to those paragraphs will also be denied.

ORDER

Now February 27,2001, the prehminary objection filed by the defendant hospital on grounds of lack of personal jurisdiction is sustained without prejudice to the plaintiff’s right to amend the complaint and/or supplement the record as indicated in the attached opinion. The defendant hospital’s preliminary objection seeking the striking of certain paragraphs set out in this opinion is overruled.

      . Other objections raised by the hospital have been resolved by counsel.

      . The plaintiff also presented certain information to the court in its “response to preliminary objections.” Such a pleading is not permissible under Pa.R.C.P. 1017(a). An answer to preliminary objections is permissible but the plaintiff has not filed an answer. Even if the plaintiff had filed an answer, same would not have cured the deficiencies in the record because new matter cannot be pled in an answer to preliminary objections. Goodrich-Amram 2d §1017(a):14.


author: LEWIS, J.,

text:
    Levenduski v. Levenduski

      C.P. of Dauphin County,
    no. 357 S 1998.

      Max J. Smith Jr., for plaintiff.

      Madeline R. Kaufman, for defendant.

      February 2, 2001
   LEWIS, J.,

Defendant Laura Levenduski and plaintiff Joel Levenduski were married on May 31, 1980 and divorced on March 23,1999. The parties are the parents of three children, Nicholas, bom April 12, 1981; Renee, bom February 23, 1983; and Matthew, bom December 20,1991. Since December 9, 1997, Nicholas and Renee have resided with Mr. Levenduski and Matthew has resided with Mrs. Levenduski.

On March 10, 1999, the parties executed a property settlement agreement which both believed would resolve all issues pertaining to the divorce. At the time, the parties were represented by counsel. Presently before this court is Mrs. Levenduski’s petition for enforcement and contempt of property settlement agreement. She argues that her former husband has violated several provisions of their agreement, including those dealing with child support, life insurance and the division of Mr. Levenduski’s pension. This court’s analysis of her arguments and the relevant law is set forth below.

Mrs. Levenduski’s main contention pertains to paragraph 10 of the agreement which states in pertinent part:

“(10) Pension and retirement
“Wife will receive 30 percent of husband’s military retirement. Husband agrees to apply for retirement no later than June 30, 1999. . . . Wife further waives the military survivor benefit plan.”

The United States Code defines “disposable retired pay” in the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 USCS §1408, as the total monthly retired pay to which a member is entitled less amounts which... (B) are deducted from the retired pay of such member as a result of... a waiver of retired pay required by law in order to receive compensation under title 5 or title 38. 10 USCS § 1408(A)(4)(B).

Testimony at the hearing revealed that Mr. Levenduski began receiving military pension of $2,406 in August of 1999. However, Mrs. Levenduski did not begin receiving her 30 percent share until September of 1999. Therefore, this court finds that Mrs. Levenduski is entitled to be reimbursed by her former husband for August of 1999 in the amount of $721.80, plus interest.

Subsequently, Mr. Levenduski applied for and was approved for veteran’s disability compensation. Those payments, which started in My of2000, are offset against his military retirement benefits and are tax-free. Accordingly, Mr. Levenduski maintains that the disability benefit is a separate benefit that Mrs. Levenduski is not entitled to. He further argues that the terms of the agreement are clear and unambiguous. The parties agreed that Mrs. Levenduski would receive 30 percent of Mr. Levenduski’s military pay, not an actual monetary amount, no mater what dollar figure Mrs. Levenduski contemplated at the time of the agreement’s execution.

Mrs. Levenduski counters that she knew nothing of her former husband’s intention to apply for disability benefits. She maintains that prior to the time the parties executed the agreement, an appraisal had been conducted regarding Mr. Levenduski’s pension. Mrs. Levenduski further maintains that she expected to receive an amount certain and she relied on that dollar figure. She contends that based on her reliance, she gave up her right to the imposition of alimony in this action. Finally, she argues that since Mr. Levenduski did not apply for disability until after their agreement and after the commencement of his military retirement, Mr. Levenduski should be held to his contractual commitment, pursuant to the expectation of the parties at the time.

Mrs. Levenduski cites an unpublished Cumberland County opinion, issued on February 17, 1994 by the Honorable Edgar B. Bayley in support of her position. She maintains that the facts in that case, Adams v. Adams, 2205 civil 1987 (Cumb. Cty., February 17, 1994), are identical to the facts in the case sub judice. This court disagrees. In Adams, the wife was'to receive a designated portion of her husband’s retirement (46 percent). The provision in that property settlement agreement dealing with wife’s apportionment of her husband’s “disposable retirement pay” was specifically defined more restrictively as follows:

“All military retirement benefits to which husband is entitled reduced only by the survivor benefit plan premium if any for wife and before any waiver for benefits received in lieu of husband’s military retirement benefits, together with any cost-of-living increases or similar increases that occur after retirement.” Adams, at p. 3. (emphasis in original)

After execution of the agreement, husband received an offset from his military retirement pay for disability benefits subsequently received by him. Judge Bayley found the intent of the parties clear. Based on the specific language of their property settlement agreement, Judge Bayley required husband to pay the full amount of military retirement pay to his ex-wife as calculated under the agreement without deductions for the veteran’s disability benefit. Adams, at pp. 4-5. Husband did not appeal from this determination.

Several years later, Mr. Adams attempted to again reduce his wife’s portion of his retirement. This time, Mr. Adams accepted a federal civil service position, which, like disability, operated to reduce his spouse’s monthly pension benefit due to a federally mandated pay-cap ordered for dual government compensation of military retirees. On appeal, the Pennsylvania Superior Court, in Adams v. Adams, 725 A.2d 824 (Pa. Super. 1999), affirmed the lower court’s ruling that Mr. Adams reimburse his wife the difference due between what she should receive pursuant to the terms of their property settlement agreement and what she received after her husband’s deduction due to the civil service employment. The Superior Court explained:

“The trial court noted in its opinion that it previously had determined in the divorce action that the parties had agreed to a more restrictive definition than that made by the federal government. They did so without regard to the federal government’s requirement that a reduction in husband’s military retirement pay was a precondition to receipt of veteran’s disability benefits. The trial court applied the same reasoning to deny husband a reduction in retirement pay owed to wife to reflect the reduction in his pension benefits required to meet the pay-cap imposed for dual government compensation of military retirees. Indeed, the trial court noted husband voluntarily elected to reduce his pension payments rather than his current salary....” Adams, 725 A.2d at 827.

The Superior Court went on to reject Mr. Adams’ latter argument and found that the trial court’s conclusion was supported by the record. The court further discussed:

“Husband agreed to a more restrictive definition of eligible military retirement pay than the one recognized by the federal government. He promised not to make a waiver or accept any offset of his pension eligibility other than the amount deducted to fund one-half the survivor’s benefit plan insurance. Consequently, the trial court correctly decided husband is bound to this mutually agreed upon and more restrictive definition of “eligible” disposable military retirement pay. He agreed to pay based on that definition without regard to unilateral subsequent waivers or offsets he initiated that the federal government then deducted to make its calculation of his eligible monthly military retirement pay. Husband is bound under the agreement to the terms as defined in the agreement.” Adams, 725 A.2d at 828. (emphasis in original)

This court finds that it is this more restrictive definition of military retirement pay as found in the property settlement agreement in the Adams case that distinguishes the result from the instant case. In the Levenduskis’ agreement, there is no restrictive definition or limiting language as to what offsets that which Mr. Levenduski is entitled to receive as pension money. Mr. Levenduski agreed to provide 30 percent of his military retirement pay to his wife, subject to the application of the federal law that controls the distribution and administration of his pension. To read a more restrictive definition as to what constitutes his military retirement pay with that which appears in their agreement is impermissible. Unfortunately for Mrs. Levenduski, the drafters of the agreement should have considered such a result when creating an instrument intended to protect her future interest in her husband’s retirement pay. Therefore, this court declines to improperly consider the intent of the parties at the time of the agreement’s execution.

Of further note, the United States Supreme Court in Mansell v. Mansell, 490 U.S. 581 (1989), has interpreted the applicable provision of the U.S. Code holding that the USFSPA does not grant state courts the power to treat as property, divisible upon divorce, military retirement pay that has been waived to receive veterans’ disability benefits. Mansell, 490 U.S. at 595. In addressing the potential unfairness in such a rationale, Justice Marshall explained:

“We realize that reading the statute literally may inflict economic harm on many former spouses. But we decline to misread the statute in order to reach a sympathetic result when such a reading requires us to do violence to the plain language of the statute and to ignore much of the legislative history. Congress chose the language that requires us to decide as we do, and Congress is free to change it.” Id.

Two more issues are raised with regard to Mrs. Levenduski’s petition, including proof of beneficiary designation on a life insurance policy and reimbursement for child support. This court finds that although Mr. Levenduski demonstrated at the hearing in this case that he had in fact obtained a life insurance policy with a face amount of $50,000, he has yet to designate Mrs. Levenduski as the beneficiary or provide proof of the same. This court orders that proof of such designation be provided to Mrs. Levenduski within 20 days from the date of this opinion and order.

Finally, Mrs. Levenduski is requesting child support and babysitting expenses incurred during 1999. Paragraph 11 of the agreement provides that Mr. Levenduski agrees to pay $600 in child support for Matthew directly to Mrs. Levenduski through December 31,1999 and one-half the babysitting costs for Matthew during that summer. The agreement also provided that neither party could apply for a modification of that amount until January 1, 2000. Evidence revealed that upon petition filed by Mr. Levenduski, in October of 1999, Dauphin County domestic relations entered an order requiring him to pay $134.32 per month to Mrs. Levenduski.

Presently, Mrs. Levenduski requests the difference between the amount she should have received under the agreement and the amount she actually received based on the domestic relations order from September of 1999 through December of 1999, or $1,862.72. Further, she asks for $400 representing half of the babysitting expenses for Matthew during the summer of 1999. Since neither party presented proof that the amounts at issue were factored into the domestic relations order, this court finds that Mrs. Levenduski is entitled to those amounts covered by their agreement. Therefore, the total due Mrs. Levenduski toward the support of Matthew is $2,262.72.

Accordingly, the following is entered:

ORDER

And now, February 2, 2001, the following is hereby ordered with respect to defendant Laura Levenduski’s petition for enforcement and contempt of property settlement agreement:

(1) Defendant’s request for reimbursement of pension money not received as a result of plaintiff’s receipt of disability compensation is denied.

(2) Defendant’s request for reimbursement of $721.80 plus interest representing pension money not received for August of 1999 is granted.

(3) Defendant’s request for reimbursement of $2,262.72 representing babysitting costs not received for the summer of 1999 and child support not received from September of 1999 through December of 1999 is granted.

(4) Counsel fees are not awarded to either party.


author: CORBETT, J.,

text:
    Cook v. Walsh

      C.P. of Lackawanna County,
    no. 98 CV 1694.

      Gary Solomon, for the plaintiffs.

      David E. Heisler, for defendant.
    November 3, 2000
   CORBETT, J.,

Before the court is a post-trial motion by the plaintiffs for a new trial. On June 5 and 6,2000, we held a jury trial in this matter. At the close of testimony, this court directed a verdict as to negligence and causation in favor of the plaintiffs and submitted the issue of monetary damages to the jury. Despite the uncontroverted testimony from the medical experts for both parties, that plaintiff suffered an injury as a result of the accident, the jury awarded zero damages. Thereafter, this court dismissed the jury and instructed plaintiffs to file a post-trial motion requesting a new trial. This court informed both parties that we would be inclined to grant the motion given the verdict which was contrary to the evidence and the law.

On or about June 14, 2000, the plaintiffs timely filed their post-trial motion. By letter dated July 13,2000, the court administrator set August 31, 2000, for the argument date. That date was rescheduled to October 16,2000 wherein this court heard oral argument. At the oral argument we affirmatively granted the post-trial motion for a new trial and asked counsel whether or not they desired an opinion. Mr. Heisler requested an opinion which this court thereby undertook. Thereafter, on October 23,2000, counsel for the defendant, David Heisler, Esquire, filed a “praecipe for entry of judgment” pursuant to Pa.R.C.P. 227.4(b). On that same day the clerk of judicial records entered judgment pursuant to the praecipe. Upon learning of this maneuver, this court filed an order striking the judgment. This court stated we had already ruled and made the parties aware that our decision was to grant the post-trial motion and award plaintiff a new trial. Counsel for defendant, David Heisler’s, use of Pa.R.C.P. 227.4 was a disingenuous attempt to circumvent this court’s verbal ruling.

Additionally, this calculated move on Mr. Heisler’s part was nothing more than form over substance as he was aware of this court’s ruling and therefore was aware that no post-trial motions were outstanding or undecided. Although due to scheduling this court did not have a chance to file our decision of record within the allotted 120 days, at the time of defendant’s filing of the praecipe, Mr. Heisler was aware of this court’s verbal ruling.

Rule 227.4(l)(b) provides: “the prothonotary shall, upon praecipe of a party: (1) enter judgment upon the verdict of a jury ... if (b) one or more timely post-trial motions are filed and the court does not enter an order disposing of all motions within 120 days after the filing of the first motion....”

In the “explanatory comment” it provides that the “rule is optional with the parties.” This rule was designed to give either party the ability to move the case along. In the matter before this court, both parties were aware that we were in the process of entering an opinion and order confirming our granting of a new trial. Therefore, this court will not tolerate, nor allow David Heisler, defense counsel, to side step our judgments by an incorrect interpretation of a rule of civil procedure. Further, inasmuch as this court’s verbal ruling predated the filing of the praecipe to enter judgment, the same should be deemed moot.

As to this court’s grant of a new trial for the plaintiff we note the following. It is well settled that in reviewing an order to grant a new trial, a reviewing court is limited to determining whether the trial court abused its discretion or committed an error of law. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995). “A trial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it ‘shocks one’s sense of justice.’ ” Id.

In the instant matter, this court finds that the jury’s verdict was so contrary to the evidence that it shocks one’s sense of justice. At trial this court directed a verdict on negligence and causation, leaving to the jury the amount of monetary damages to be awarded to the plaintiff. During testimony, not only did plaintiff’s expert testify as to plaintiff’s injuries, but also, defendant’s own expert conceded that some of the plaintiff’s injuries were attributable to the accident. “Since there was uncontroverted evidence that plaintiff was injured in the accident and that these injuries were the type one normally associates with pain and suffering, the jury’s refusal to award any damages to plaintiff ‘shocks one’s sense of justice’ and thus the granting of a new trial is warranted.” Ricca v. Jackson, no. 96-05145-17-2 (Bucks Cty. May 5, 2000) (citing Neison, supra), (other internal citations omitted) “It is impermissible for a jury, in a personal injury case, to disregard the uncontroverted testimony from the experts for both parties that the plaintiff suffered some injury as a result of the accident in question.” Mano v. Madden, 738 A.2d 493,497 (Pa. Super. 1999). (internal citation omitted) Therefore, plaintiffs’ post-trial motion requesting a new trial in the matter before this court is granted. An appropriate order to follow.

ORDER

And now, November 3,2000, it is hereby ordered and decreed, consistent with the foregoing opinion that the plaintiffs’ motion for a new trial is granted.


author: QUIGLEY, P.J.,

text:
    Commonwealth v. Spade

      C.P. of Juniata County,
    no. 50 of 2000.

      Andrew Winder, for Commonwealth.

      P. Richard Wagner and Ralph Germak, for defendant.
    July 12, 2000
   QUIGLEY, P.J.,

This court has consolidated the above two matters because of the similarity of pretrial motion issues involved. Both of these are driving under the influence cases, both occurred at the same section within the Borough of Mifflin and both involved the same police officer.

Research has indicated that authority exists sufficient for this court to either sustain the action of the police officer in making the initial stop or rejecting same as having been inappropriate. That authority consists of numerous lower court cases, frankly, the bulk of which side with the defendant on the issues before us. See e.g., Commonwealth v. Malone, 19 D.&C.4th 41 (1993) (holding that section 3309(1) does not require perfect adherence to driving entirely within a single marked lane on all occasions); Commonwealth v. Snyder, 13 Franklin L.J. 11 (1995) (stating that one wide turn does not constitute erratic driving which would warrant the belief that a traffic violation was occurring where there were no center line markings); Commonwealth v. Manning, 30 Centre 7 no. 44 (1996) (“defendant’s one wide swing to the right does not constitute erratic driving which would warrant a belief that a traffic violation was occurring”). Nevertheless, this court has the authority, and of course the fortitude, to make its own decision, being influenced, perhaps, to a greater or lesser degree by the opinions of other jurists whom the court respects.

In short, the police officer, acting within the scope of his employment, (contrary to the police officer in Commonwealth v. Carlson, 705 A.2d 468 (Pa. Super. 1998)) observed the defendant make a turn under circumstances that placed his vehicle in part over the center yellow line on Juniata Street. One of the operators continued for a greater length of time on the center line than the other, but both came to a legal and proper stop at the stop sign on Main Street. One of the defendants (Mr. Spade) was stopped by the police officer at that time, the other after a short, uneventful trip into the Borough of Mifflintown.

“Police officers may stop a vehicle whenever they have articulable and reasonable grounds to suspect that a violation of the Vehicle Code had occurred.” Commonwealth v. Hamilton, 543 Pa. 612, 673 A.2d 915 (1996). The only basis by which articulable and reasonable grounds to suspect that a violation of the Motor Vehicle Code has occurred, occurred during the short stretch between North Street and Main Streets on Juniata Street.

Regardless of which “left of center” section one might look to, (3306(a) and 3301(a)) it is clear that both drivers, prima facie, violated, albeit temporarily, the Motor Vehicle Code. It certainly can be argued that one section is more or less applicable than the other and whether or not either or both have been charged, is, in our judgment, irrelevant on the issue of whether there was an appropriate basis to stop.

Thus, we deal with the issue as to whether or not there was an appropriate basis to stop and we consider that the only issue in this case.

Although the record does not disclose it, it is well known to the court that the Borough of Mifflin produces its fair share of DUI situations. Thus, any efforts by the police to attempt to control this dangerous conduct are, at the very least, laudable. However, the authority of Commonwealth agents even when an articulable reason may exist, is, in our judgment, not without limitation.

We are particularly impressed with observations of fellow jurists which, even in the face of articulable violations, nevertheless have found insufficient basis to pull over when the driving has not been construed to be erratic. Further, in limiting our observation to the facts of this case, we do not see erratic driving and, most importantly, we do not see the operation of the motor vehicle under circumstances which creates any type of a hazardous condition to anyone else. Thus, we don’t think the “casual” violation of the Motor Vehicle Code which is not accompanied by conduct that could be reasonably described as erratic or one that creates, even to a low degree, a hazardous situation for others on the highway, provides an insufficient basis to stop a motorist.

We hasten to advise that this case should be construed narrowly and be limited to the facts before us. We should note that the intersection in question is constructed in such a way that it is difficult for one making a right turn to do so within the center lane of traffic and without running over the curb. With counsel’s approval, this judge negotiated that intersection on several occasions and, although he was able to, for the most part, stay within his own lane of traffic, he, on at least one occasion, did, in fact, go over center a little bit and, on at least one other occasion, struck the curb.

Both defendants operated large vehicles, Mr. Kint, in fact, an extended cab pickup vehicle, and under the circumstances, although there was a subsequent basis for a prosecution of both motorists for DUI, we are constrained to suggest that we cannot reach that point at this time and should suppress the evidence obtained as a result of the stop.

We should note that in the matter of Commonwealth v. Kint, no. 12 of 2000, we had previously denied the suppression motion. A motion to reconsider was filed and it was decided by the court, with the approval of both counsel, we believe, to revisit the suppression issue at a time set for non-jury trial. The point of this revelation is that the decision by the court to suppress is not substantively or procedurally, in effect, a verdict of not guilty, although we recognize that the Commonwealth’s case evaporates as a result of this decision. Instead, we take the position that we have reconsidered the pretrial issue and changed the ruling thereon, thus preserving an appellate issue.

ORDER

And now, July 12, 2000, for the reasons set forth in the within memorandum, the motion to suppress in both cases is granted.