author: THOMAS, J.,

text:
    Commonwealth v. Acosta

      C.P. of Bucks County,
    no. 00-04238.

      Lisa K. Backentross, senior deputy district attorney and Diane E. Gibbons, district attorney, for plaintiff.

      February 15, 2001

      Michael K. Parlow, for defendant.
   THOMAS, J.,

Pursuant to Pa.R.A.P. 311(d), the Commonwealth appeals the order of this court dated December 4, 2000, granting defendant Miqueas Acosta’s motion to suppress. This opinion is filed in accordance with Pa.R.C.P. 1925(a).

At the suppression hearing, the defendant argued that the search was unlawful because it was made pursuant to a pre-textual stop; it was the result of an illegal seizure; the consent given was not voluntary; and because the defendant was incapable of consenting to a search. This court ordered the suppression of all evidence obtained after the stop of the defendant’s vehicle because, under the totality of the circumstances, defendant did not give a voluntary consent.

The facts of this case are as follows. On June 16,2000, Officer John Monaghan was on duty in Bensalem Township, Bucks County, Pennsylvania. N.T., 12/4/00, p. 7. Officer Monaghan was driving southbound on US Route 1 in a marked patrol vehicle when he saw a red, 1992 Ford minivan driven by the defendant Miqueas Acosta. N.T., 12/4/00, pp. 8-9, 17. As Officer Monaghan began to pass the minivan, he noticed that the defendant changed the manner in which he was driving by straightening up, putting both hands on the steering wheel and refusing to look at the officer. N.T., 12/4/00, pp. 10-11.

After Officer Monaghan passed the defendant, he radioed the New York tag of the minivan into police headquarters in order to determine whether the tag was valid. N.T., 12/4/00, p. 12. Police headquarters informed him that the license plate for defendant’s vehicle had been suspended. N.T., 12/4/00, p. 12. Officer Monaghan then activated his car’s overhead lights and pulled the defendant over to the right-hand side of the road. N.T., 12/4/ 00, p. 13.

Officer Monaghan approached the minivan and asked the sole occupant for his driver’s license, registration and insurance information. N.T., 12/4/00, p. 14. The defendant gave the officer a valid registration and insurance card and responded that he did not have his driver’s license. N.T., 12/4/00, p. 14. When asked for any form of identification, the defendant produced a BJ’s Wholesale Club card, displaying his picture and name. N.T., 12/4/ 00, p. 15.

When the officer informed the defendant that the name on the ID did not match the name on the registration and insurance card, the defendant stated that his brother owned the vehicle. N.T., 12/4/00, p. 17. The defendant also orally provided the officer with two conflicting dates of birth and could not produce any identification reflecting his date of birth. N.T., 12/4/00, p. 18. When Officer Monaghan asked him whether he was licensed, the defendant said he had a Minnesota driver’s license. N.T., 12/4/00, p. 19.

Officer Monaghan went back to his patrol car and called in the information regarding the defendant’s name and the two dates of birth. N.T., 12/4/00, p. 19. The officer was unable to obtain any licensing information for the defendant. N.T., 12/4/00, p. 19. However, he did ascertain that a subject with a different first name and the same last name was wanted in Wisconsin for writing bad checks. N.T., 12/4/00, p. 21. The information Officer Monaghan received also included a general physical description of the wanted subject, which was fairly similar to that of the defendant. N.T., 12/4/00, p. 21.

Upon receiving this information, Officer Monaghan radioed for assistance. N.T., 12/4/00, p. 22. He then approached the minivan and ordered the defendant to leave his vehicle. The defendant complied without incident. N.T., 12/4/00, pp. 23, 57. Officer Monaghan led the defendant to the rear of the minivan along the curb line of the highway. N.T., 12/4/00, p. 58. He repeated the questions he had asked previously regarding licensure and ownership of the vehicle. N.T., 12/4/00, p. 24. Officer Monaghan also asked additional questions which revealed that the defendant was travelling from New York to take the minivan to someone in Philadelphia. N.T., 12/4/00, pp. 24-25. At some point during this conversation, Officer Dennis Hart arrived on the scene in full uniform and in a marked patrol car. N.T., 12/4/00, pp. 23-24, 28.

Officer Monaghan then informed the defendant that the police were having trouble with drug trafficking on that highway. N.T., 12/4/00, pp. 26-27. He asked the defendant whether he had any weapons or narcotics in the vehicle. N.T., 12/4/00, p. 27. When the defendant said “no,” Officer Monaghan asked the defendant whether he would allow him to search the vehicle. N.T., 12/4/00, p. 27.

Although the defendant acquiesced in the officer’s request, that request was made while the officer retained the registration, insurance card, and the ID card. N.T., 12/4/00, p. 70. The officer never indicated in any way that the defendant was free to leave before he requested consent. N.T., 12/4/00, p. 70. The officer acknowledged that he was not certain whether he would have permitted the defendant to leave the scene had he attempted to do so. N.T., 12/4/00, p. 64. Furthermore, the entire conversation was in English.

When the consent was requested, the defendant was standing in front of one of three police vehicles on the scene with their overhead lights activated. N.T., 12/4/ 00, pp. 29, 67. Additionally, three officers — Officer Monaghan and Officer Hart and Officer Derek Gold-stein — stood next to each other in close proximity to the defendant when consent was requested. N.T., 12/4/00, p. 29. The defendant was not provided with any consent forms advising him that he had a right not to consent and he did not give a written consent. N.T., 12/4/00, pp. 30, 62. In short, he was never advised in any way that he was free not to consent to the search. N.T., 12/4/00, p. 62.

Officer Monaghan and Officer Goldstein searched the defendant’s vehicle while Officer Hart stood directly next to the defendant and watched him. N.T., 12/4/00, p. 64. During this initial search, the officers did not discover any drugs. N.T., 12/4/00, p. 66.

Shortly thereafter, Officer Christine Kelliher arrived on the scene with a drug-sniffing dog named Cosmo. N.T., 12/4/00, p. 31. Up until this point in time, the defendant was still standing with Officer Hart along the curbside near the passenger’s side of the patrol vehicle. N.T., 12/4/00, pp. 40, 69. But when the dog arrived, the defendant was placed in the back seat of Officer Monaghan’s patrol car. N.T., 12/4/00, pp. 31,40. Officer Monaghan stated that the defendant was moved for “safety reasons,” although the officer testified that Cosmo was not a vicious dog, albeit it was “playful in nature” and would jump up. N.T., 12/4/00, pp. 31-32, 40, 69. However, at all times, the dog was leashed and under the control of Officer Kelliher. N.T., 12/4/00, p. 69.

While the defendant was in the back seat of the patrol vehicle, Officer Monaghan, Officer Goldstein, Cosmo and narcotics Officer Gross searched the minivan for a second time. N.T., 12/4/00, p. 66. As a result of the second search, narcotics were found in a steel compartment built into the rear bench of the vehicle. N.T., 12/4/00, pp. 42-43. The defendant was then handcuffed and advised he was under arrest. N.T., 12/4/00, p. 69. At this point, 45 minutes had elapsed since the initial stop. N.T., 12/4/00, p. 72.

Although the defendant was Hispanic and later in the investigation Officer Monaghan felt the need to request that Officer Nieves advise the defendant of his Miranda rights in Spanish, nonetheless all conversations with the defendant at the scene were conducted in English. The defendant told Officer Nieves that he “knew English a little bit” but was more comfortable speaking in Spanish. N.T., 12/4/00, p. 77.

In Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000), the Supreme Court of Pennsylvania set forth the requirements for a valid consensual search, incident to a traffic stop, indicating that the central Fourth Amendment inquiries in consent cases entail assessment of the constitutional validity of the citizen-police encounter giving rise to the consent, and, ultimately, the voluntariness of consent. Where the encounter is a valid one, voluntariness becomes the sole focus. If an illegal seizure precedes the consent search, the Commonwealth must also establish a break in the causal connection between the illegality and the evidence thereby obtained. 563 Pa. at 57, 757 A.2d at 888-89.

In the instant case, the court concluded that the encounter preceding the search was a valid one. If a police officer establishes that an actual violation of the Vehicle Code occurred prior to stopping a vehicle or that a reasonable basis supported his belief that the code was being violated, the stop of the vehicle is legal. Commonwealth v. Andersen, 753 A.2d 1289, 1293 (Pa. Super. 2000). Officer Monaghan was justified in stopping the defendant because the license plate for the vehicle had been suspended.

The initial stop, however, was never followed by a termination of the encounter before consent was given. Instead, there was a continuous investigative detention throughout the entire time Officer Monaghan and the defendant were together. An investigative detention subjects an individual to a stop and a period of detention but may not be so coercive as to constitute the functional equivalent of an arrest. Strickler, 563 Pa. at 58, 757 A.2d at 889. In other words, an investigative detention involves seizure of the person. Id.

The determination of whether a seizure, and thus an investigative detention, has been effected in the first instance is made by examining the totality of the circumstances to determine whether a reasonable person would feel free to leave. Commonwealth v. Freeman, 563 Pa. 82, 88, 757 A.2d 903, 906 (2000). In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject’s movement has in some way been restrained. Strickler, 563 Pa. at 58, 757 A.2d at 890.

Factors relevant to such an assessment include: the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review (for example — the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and “excesses” factors stressed by the United States Supreme Court); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police/citizen interaction. Strickler, 563 Pa. at 72-78, 757 A.2d at 898-900.

The character of the interaction subsequent to Officer Monaghan’s contacting headquarters regarding the defendant’s name support the conclusion that the defendant was subject to a continuous seizure which was never terminated. The officer’s actions were consistent with a finding that the defendant was seized, as he: radioed for backup; ordered the defendant out of his vehicle; directed the defendant’s movements; questioned the defendant about licensure and intended whereabouts; never told the defendant he was free to leave; and withheld the defendant’s documentation. Officer Monaghan’s actions would clearly lead a reasonable person to believe that he was not free to leave. Therefore, at all times, the defendant was subject to a Fourth Amendment seizure. See Freeman, 563 Pa. at 88-89, 757 A.2d at 907.

Having concluded that the defendant was “seized” at the time his consent was requested, the question is whether the seizure was lawful. To maintain constitutional validity, an investigative detention must be supported by a reasonable and articulable suspicion that the person is engaged in criminal activity. The detention “may continue only so long as is necessary to confirm or dispel such suspicion.” Strickler, 563 Pa. 58, 757 A.2d at 889 (2000); Commonwealth v. Lewis, 535 Pa. 501, 508, 636 A.2d 619, 623 (1994). “The question of whether reasonable suspicion existed at the time of a detention must be answered by examining the totality of the circumstances to determine whether there was a particularized and objective basis for suspecting the detainee of criminal activity.” Freeman, 563 Pa. at 90, 757 A.2d at 908.

The record shows that Officer Monaghan possessed a reasonable suspicion of criminal activity. The defendant provided conflicting identifying information. He was also unclear as to the owner of the vehicle. N.T., 12/4/00, p. 23. Information regarding the defendant’s destination was vague. N.T., 12/4/00, p. 24. Additionally, Officer Monaghan testified that the route the defendant was travel-ling on was heavily traveled by drug dealers. N.T., 12/4/ 00, pp. 26-27. See e.g., Com. v. Francis, 700 A.2d 1326, 1329 (Pa. Super. 1997) (trooper who had made valid traffic stop had reasonable grounds to suspect that criminal activity was afoot and request for permission to search the vehicle was not an unlawful seizure, where motorist dropped three cards back into the trunk while freely displaying the other cards to the trooper, and motorist had inconsistent identification and was driving a vehicle with a plate that belonged to another vehicle).

This finding, however, does not in any way justify a search of the defendant’s vehicle if the search was pursuant to involuntary consent. “[T]he Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances.” Strickler, 563 Pa. at 79, 757 A.2d at 901. “Since both the tests for voluntariness and for a seizure centrally entail an examination of the objective circumstances surrounding the police/citizen encounter to determine whether there was a show of authority that would impact upon a reasonable citizen-subject’s perspective, there is a substantial, necessary overlap in the analyses.” Strickler, 563 Pa. at 79, 757 A.2d at 901-902. Consequently, the reasons supporting the conclusion that the defendant was “seized” at the time that he lent his consent to the vehicle search also support a determination that his consent was not voluntary. See Strickler, 563 Pa. at 79, 757 A.2d at 902.

The existence of a prior, lawful detention is a factor “engrafting” a degree of coercion upon the encounter. See Strickler, 563 Pa. at 76, 757 A.2d at 900. Temporal and geographic elements of an interaction, such as numerous officers with marked patrol cars with flashing lights standing a few feet from a defendant, enhance the coercive aspects to a degree. Id. The withholding of documents, such as registration, works against a finding that consent is voluntary. See Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992).

The absence of an express endpoint to a detention in the form of an admonition by the officer that the defendant is free to leave is also a factor. Strickler, 563 Pa. at 77, 757 A.2d at 900. The knowledge of the right to refuse to consent to the search is an additional consideration. Strickler, 563 Pa. at 79, 757 A.2d at 901.

All of these factors were present in the instant case. The defendant was detained throughout the entire stop. The defendant was ordered out of his vehicle and his movements were controlled by the officer when he was initially led near the passenger side of the police car and later placed in the back seat of that police car. Officer Monaghan radioed for backup and the officers who arrived on the scene in response to the call were standing close-by to the defendant with the lights on their patrol cars turned on when consent was requested. The defendant was never told he was free to leave but, instead, was under questioning up until the time the consent was requested. None of the documentation the defendant handed over was ever returned. He was never told he was free to refuse to consent to the search. These factors are to some extent magnified by the fact that the officer recognized that it was necessary to warn the defendant of his rights in Spanish and that there was at least some question as to the defendant’s proficiency in English. See Strickler, 563 Pa. at 79, 757 A.2d at 901 (“the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will) are to be taken into account” in the determination of whether voluntary consent was given). In light of the aforementioned, this court found that the consent given was not the product of an essentially free and unconstrained choice and was thus involuntary.

It is for the above reasons that the defendant’s motion to suppress was granted.

      . Further investigation revealed that the defendant was not the subject wanted in Wisconsin. N.T., 12/4/00, p. 67.


source: Caselaw Access Project

author: HORAN, J.,

license: Public Domain

text:
    Davis v. II-VI Inc.

      January 31, 2001
    C.P. of Butler County,
    no. A.D. 99-10704.

      Christopher J. Youngs, for plaintiff.

      Paul J. Walsh III, for defendant II-VI Inc.

      Robert J. Ray, for defendant Hornfeck Engineering.

      Kenneth S. Mroz, for defendant Hey Electric.

      John L. Kwasneski, for defendant Holbein Inc.

      Edward A. Schenck, for defendant Gabriel Enterprises Inc.
   HORAN, J.,

Before this court for consideration is the defendant Hornfeck Engineering Inc.’s motion to dismiss filed at the above docket number. For the foregoing reasons, said defendant Homfeck’s motion is denied.

FACTUAL BACKGROUND

The complaint for personal injuries was filed against the five defendants by the plaintiff Martin R. Davis, on November 22, 1999. In his complaint, the plaintiff alleges that he was assigned by his employer, Salt Painting Inc., to paint certain portions of a building which was under construction and owned by the defendant II-VI Inc. The plaintiff alleges that on November 26,1997, in order to perform this painting, he was driving a scissors lift machine supplied by one or more of the defendants. The plaintiff allegedly drove over a pit, which had been covered with plywood and plastic by one or more of the defendants. The scissors machine broke through the plywood and the plaintiff and the machine fell into the pit. Plaintiff alleges injuries, including a broken leg, which has necessitated several surgeries and subsequent complications, and an injury to his quadriceps muscle and broken teeth resulting from falls caused by his incident-related disability. In his complaint, the plaintiff brings a count of negligence against each of the defendants.

Defendant Homfeck filed its motion to dismiss on November 2,2000. Defendant Hey Electric Co. Inc. opposes this motion. Oral arguments were heard on January 22,2001. Discovery is presently ongoing in this case.

DISCUSSION

In its motion to dismiss, defendant Homfeck argues that it is a consulting engineering company and that it was not involved in any manner with the cause of the plaintiff’s injuries. In its motion, the defendant includes an affidavit of noninvolvement from its president, Richard W. Petrie, wherein Mr. Petrie explains the scope of Hornfeck’s duties related to the construction project and he denies any involvement in the incident, which gives rise to this claim. Defendant Homfeck argues that the scope of its duties within the construction project was to design the building’s permanent lighting and that no lighting or power systems designed by Homfeck were in place at the time of the accident. Also, defendant Homfeck further argues that it had no responsibility for any temporary lighting or for the constmction at the building site, that it did not cover the pits, that it did not have a representative at the constmction site, and that it did not own, possess, control or furnish the scissors lift to the plaintiff.

Defendant Hey Electric opposes defendant Homfeck’s motion to dismiss and presented oral arguments in support of its opposition on January 22, 2001. Defendant Hey Electric essentially argues that there is a factual issue as to whether there was permanent lighting in place at the time of the accident. Defendant Hey Electric specifically argues that defendant II-VI has provided verified answers to interrogatories and responses to requests for production of documents wherein it has stated that permanent lighting was in place at the time of the accident. Further, defendant Hey Electric argues that Daryl Schmidt, the project manager for defendant II-VI, testified at his deposition that he believed permanent lighting was in place at the time of the accident but that he could not say so with certainty.

Defendant Homfeck’s motion to dismiss appears to this court to be in some ways similar to a motion for summary judgment. Defendant Homfeck is asking this court to dismiss the claims against it based upon the affidavit of noninvolvement from its president. 42 Pa.C.S. §7502(a) permits dismissal in a negligence action where a construction design professional files an affidavit of noninvolvement. Section 7502(c) provides that the defendant may be reinstated if discovery establishes the existence of liability. The issue before this court is essentially whether or not the court may dismiss a defendant under 42 Pa.C.S. §7502(a) when another party presents evidence that creates a genuine issue of material fact as to whether or not the defendant was involved in the incident.

The Allegheny County Court of Common Pleas faced a similar issue in Buyce v. Mellon-Stuart Co., 13 D.&C.4th 39 (1991) where an architect filed a motion to dismiss based upon an affidavit of noninvolvement. The court recognized that the standards for considering a motion to dismiss pursuant to 42 Pa.C.S. §7502(a) are similar to the standards used when considering a motion for summary judgment. Id. at 44. The major difference between these two motions concerns the stage of the proceedings at which the court will dismiss the construction design professional against whom there is no evidence. See id.

In Buyce, 13 D.&C. 4th 39, the court held that the defendant had established a prima facie case showing that it was entitled to have the action dismissed pursuant to 42 Pa.C.S. §7502, and granted the plaintiff 60 days to submit evidence that the defendant was involved with regard to the cause of the injury. The court stated that if the plaintiff can present evidence that would permit the jury to find that the construction design professional was involved in any of the activities upon which the negligence claim is based, the defendant’s motion to dismiss should be denied. Id. at 44.

This court finds that defendant Hey Electric has presented sufficient evidence, in the form of deposition testimony and answers to interrogatories, to establish the existence of a genuine issue of material fact. According to the court’s decision in Buyce, 13 D.&C.4Ü139, defendant Homfeck’s motion to dismiss pursuant to 42 Pa.C.S. §7502 should be denied due to the presence of such evidence which would permit a jury to determine that defendant Homfeck was involved in activities upon which the negligence claim is based. As such, defendant Homfeck’s motion to dismiss is denied.

Accordingly we enter the following:

ORDER

And now, January 31, 2001, in consideration of defendant Hornfeck Engineering Inc.’s motion to dismiss, briefs in support, and oral arguments thereon, as well as defendant Hey Electric Co.’s oral arguments in opposition to said motion, it is hereby ordered that the defendant’s motion is denied.


author: WETTICK JR., J.,

text:
    Port Authority of Allegheny County v. Thornhill

      October 2, 2001
    C.P. of Allegheny County,
    no. AR00-5248.

      Colin Meneely and Terrance R. Henne, for plaintiff.

      Emanuel J. Oakes Jr., for defendant.
   WETTICK JR., J.,

In this case, a district justice entered judgments in favor of Mr. Thornhill on a complaint which he filed and a cross-complaint filed by the Port Authority of Allegheny County (PAT). This opinion addresses the issue of whether a notice of appeal to which the appellant attached only one of the two adverse judgments entered by the district justice operates as an appeal from both district justice judgments.

This lawsuit arises out of an accident involving a PAT bus and Mr. Thornhill’s motor vehicle. Mr. Thornhill filed a complaint with District Justice Tibbs at CV-164-00 to recover money for the damage to his motor vehicle. Thereafter, PAT filed a complaint with District Justice Tibbs at CV-164-00 to recover money for the damage to its motor vehicle.

District Justice Tibbs entered separate judgments, both docketed at CV-164-00. He ruled in Mr. Thornhill’s favor with respect to PAT’s claim for property damage, and he awarded Mr. Thornhill $3,469.08 for the claim that he had raised in his complaint against PAT.

On August 15, 2000, PAT filed plaintiff’s notice of appeal from district justice judgment. The notice of appeal identified PAT as the plaintiff and Mr. Thornhill as the defendant. PAT attached to its notice of appeal only the judgment entered in favor of Mr. Thornhill on PAT’s complaint for property damage.

On November 1,2000, Mr. Thornhill ruled PAT to file a complaint. On November 13, 2000, PAT filed a complaint in which it alleged that it had sustained property damage as a result of Mr. Thornhill’s negligence. On March 27, 2001, a board of arbitrators entered the following award: “Award for defendant and against plaintiff.”

On July 13, 2001, PAT presented a motion for stay of execution which is the subject of this opinion and order of court. In the motion, PAT alleges that Mr. Thornhill is attempting to execute on the district justice judgment of $3,469.08 entered on his claim against PAT. PAT contends that its appeal included both judgments entered in the district justice proceedings.

In 1990, in Olczak v. Miller, 138 Pitt. L.J. 121 (1989), I ruled that a notice of appeal which identified only the judgment on the appellant’s complaint as the judgment from which the appeal was taken was not an appeal from a second judgment entered on a cross-appeal. This ruling governs the present case.

In that case, Mr. Olczak filed a complaint with the district justice to recover the value of a ring which he allegedly gave Ms. Miller in contemplation of a marriage that never took place. Ms. Miller filed a complaint with the same district justice at the same number to recover the value of various items of personal property in Mr. Olczak’s possession allegedly belonging to Ms. Miller.

The district justice entered a judgment for Ms. Miller on Mr. Olczak’s claim against Ms. Miller and a judgment for Mr. Olczak on Ms. Miller’s claim against him. The district justice mailed two notices of judgment to the parties. The first notice, which identified Mr. Olczak as the plaintiff and Ms. Miller as the defendant, stated that a judgment had been entered for the defendant. The second notice, which identified Ms. Miller as the plaintiff and Mr. Olczak as the defendant, stated that a judgment had been entered for the defendant.

Mr. Olczak filed a notice of appeal which identified Mr. Olczak as the plaintiff and Ms. Miller as the defendant. Thereafter, Mr. Olczak filed his complaint in which he sought to recover damages for the value of the ring. In her answer, Ms. Miller filed a counterclaim in which she sought to recover the value of the items that were the subject of the complaint that she had filed in the district justice proceedings. Mr. Olczak sought dismissal of the counterclaim on the ground that Ms. Miller had failed to file an appeal from the judgment entered against her by the district justice on her complaint. Consequently, Ms. Miller was barred from relitigating her claim under the doctrine of res judicata.

Ms. Miller contended that she was entitled to file her counterclaim because the appeal by Mr. Olczak operated as an appeal from both judgments entered by the district justice.

Pa.R.C.P.DJ. no. 1004C sets forth the procedure to be followed for appeals from district justice proceedings involving cross-complaints:

“When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within 30 days after the date on which the appellant served a copy of his notice of appeal upon the appellee.”

This rule permits a party to appeal from a judgment on its complaint alone; thus, the filing of a notice of appeal cannot automatically operate as an appeal of every judgment entered by the district justice. For this reason, in Olczak v. Miller, I ruled that Ms. Miller was barred from pursuing her counterclaim because Mr. Olczak’s notice of appeal was limited to the judgment entered against him on his complaint against Ms. Miller.

PAT relies on a recent ruling of the Pennsylvania Supreme Court in American Appliance v. E.W. Real Estate Management Inc., 564 Pa. 473, 769 A.2d 444 (2001). In that case, American filed a complaint in a district justice court against E.W. to recover money for various household appliances which E.W. had purchased. E.W. filed a cross-complaint against American Management before the same district justice, alleging property damage arising from American’s improper installation of a washing machine. The complaint and cross-complaint were docketed at the same district justice number. The district justice entered separate judgments — one in favor of American on its complaint for $3,496.73 and the other in favor of American on E.W.’s cross-complaint.

E.W. filed a timely notice of appeal which identified the appeal as an appeal from the matter of American Appliance v. E. W. Real Estate Management Inc. It attached to its notice of appeal the notice of judgment on the complaint and the notice of judgment on the cross-complaint. The notice of appeal contained a praecipe to enter a rule upon American to file a complaint.

In its answer to American’s complaint, E.W. filed a counterclaim. American contended that E.W. could not pursue the counterclaim because it had not filed a second notice of appeal.

Both the trial court and the Superior Court ruled in American’s favor. Both courts stated that when separate judgments on a claim and counterclaim are entered, the applicable rules of procedure require that the adverse judgment on the counterclaim be appealed separately. These rulings were consistent with an opinion of the Pennsylvania Superior Court in Burr v. Callwood, 374 Pa. Super. 502, 543 A.2d 583 (1988), alloc. denied, 520 Pa. 594, 552 A.2d 249 (1988), which stated that a party appealing from two judgments must file two notices of appeal.

The Pennsylvania Supreme Court reversed. It concluded that nothing within the rules requires the filing of two notices of appeal; the district justice rules require only the filing of a single notice of appeal together with copies of both notices of judgment issued by the district justice. See Pa.R.C.P.D J. no. 1002A.

The holding of the Pennsylvania Supreme Court was as follows:

“Rule 1004 implies that appeals may be filed from either the claim, counterclaim or both claims. There is no language, however, that expressly requires the filing of a separate notice of appeal when an appellant (as opposed to an appellee) appeals from judgments on a complaint and cross-complaint. E.W.’s attachment of notices of judgment from both the complaint and cross-complaint was sufficient to satisfy the requirements of Rule 1002 as to the method of appeal. Rule 1004 says nothing more about an appellant’s obligation regarding the filing of such a notice.” American at 480, 769 A.2d at 448. (emphasis in original)

It appears that in American Appliance the court sought to construe the rules governing district justice proceedings “to provide [an] uncomplicated framework for small claims procedure, realizing that members of the public using the system would be largely unrepresented by legal counsel.” Id. at 481, 769 A.2d at 449. The reading of the rules to provide that the notice of appeal applies to those judgments described in the notice or notices of judgment attached to the notice of appeal fulfills this goal.

PAT may argue that because of the interrelationship between its claim and Mr. Thornhill’s claim, it obviously intended for its appeal to cover both claims. However, a ruling in PAT’s favor based on what PAT must have intended would complicate the framework for small claims procedure. A party prevailing before the district justice that was not aware of this case law would not be likely to file a counterclaim in the common pleas court proceedings because this party would believe that it had already prevailed on its claim. Consequently, the party that created the confusion by failing to attach both notices of judgment would benefit from its failure to comply with the rules.

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

ORDER

On October 2,2001, it is hereby ordered that plaintiff’s motion to stay execution proceedings is denied.

      . Pa.R.C.P.D J. no. 315A provides that the defendant, by filing his own complaint, may assert in the case any claim against the plaintiff which is within the jurisdiction of the district justice.

      . My office contacted District Justice Tibbs’ office to confirm that this is what the record shows.

      . See explanatory comment — 1969 to Pa.R.C.P.D J. no. 301.

      . While defendant’s notice of intention to appear states that he intends to present a counterclaim, the award by the arbitrators makes no disposition of a counterclaim.


author: DiNUBILE JR., J.,

text:
    Pratt v. St. Christopher’s Hospital

      Gayle R. Lewis, for plaintiffs.

      Charles A. Fitzpatrick, for defendants Souder and Fisher.

      William Sutton, for defendant St. Christopher’s Hospital.

      May 11, 2001
   DiNUBILE JR., J.,

This opinion arises from the denial of plaintiffs’ post-trial motions nunc pro tunc; resulting in entry of a judgment in favor of the defendants. The issue involves impeachment of the jury’s verdict. The case was a medical malpractice in which parents had brought suit on behalf of their minor son for failure to timely diagnose a subdural empyema (a pernicious infection of the brain) which ultimately led to brain damage. The defendants were Ronald L. Souder M.D., the treating pediatrician, Margaret Fisher M.D., the pediatric infectious disease specialist, and St. Christopher’s Hospital, where treatment occurred. The jury’s deliberation was called into question by one of the jurors, who found in favor of the defendants, by virtue of a letter she sent to this court. After review of the case law, it is concluded that the contents of the letter would be insufficient to impeach the jury’s verdict. Consequently, judgment has been entered on this verdict.

The facts and procedural history leading to the filing of post-trial motions, are as follows. The child, Michael Nesmith Jr., (the parents and child will hereinafter be referred to as plaintiffs) then 6 months old, was hospitalized at defendant St. Christopher’s Hospital on August 10,1989 due to a high fever and a full fontanelle (a bulging of the anterior of his forehead). A spinal tap, ordered and performed almost immediately after admission, ruled out meningitis. After treating the child for about eight days, a CAT scan was performed which revealed the subdural empyema. Plaintiffs maintain that it was negligent on the part of the defendant physicians (and the hospital as their ostensible agent) not to have diagnosed this condition sooner. As a result of this failure of diagnosis, plaintiffs asserted that the child suffered severe brain damage. The issues of negligence and causation were hotly contested by the defense. The defendants maintained that since the spinal tap showed clear spinal fluid, there was no reason to believe that the child suffered from this rare and vicious disease. Defense also asserted that since there was no vomiting, the fontanelle had been flat during the majority of the child’s stay at the hospital and he was alert up until shortly before the CAT scan was performed, that there was no reason to believe that he suffered from this disease. The defendants’ experts maintained that the subdural empyema, which emanated from an e-coli bacteria, is extremely rare. Thus, only after the child became extremely ill and lethargic, on or about the eighth day of hospitalization, it was reasonable and within the standard of care to order a CAT scan of the brain. As stated, on August 18, 1989, the test was performed and the disease was detected.

This was the second trial of the case. It had been tried before the Honorable Paul Ribner, resulting in a defense verdict. Judge Ribner had granted a new trial, after an appeal to the Superior Court affirming his decision, the case came before this court on January 29,2001 for trial. On February 7,2001, after the jury had deliberated about eight hours over a two-day period, a verdict was rendered in favor of the defendants. After the verdict was announced, the jury was polled indicating that 10 jurors had found in favor of the defendants and two for the plaintiffs. Then the verdict was recorded. No post-trial motions were filed within the required time period pursuant to Pa.R.C.P. 227.1(c). On February 22, 2001, this court received a letter from Pamela Toller, one of the jurors, dated February 14, 2001, which was made part of the record. She originally had been an alternate but became a jury member when one of the original jurors was excused. She was one of the 10 jurors who found in favor of the defendants. In her letter, she stated that she believed her fellow jurors worked hard to reach what they perceived was a proper verdict. She felt, however, that some of the jurors might have been influenced by their relatives and friends who worked in the medical profession, or by their own personal physicians, as a result of discussing the case with them during the course of the trial and jury deliberations.

By letter dated February 28, 2001, the court sent copies of this letter to counsel. Plaintiffs’ counsel then filed two sets of post-trial motions, nunc pro tunc, dated March 5,2001 and March 7,2001. By order of March 13,2001, the court permitted the filing of these post-trial motions; limited solely to the issue involving jury deliberation. In these motions, the plaintiffs requested either a new trial, or in the alternative, a hearing on this issue. On May 1 and 4, 2001, plaintiffs’ counsel reiterated their request for this relief by way of hearing by filing a motion for an emergency hearing and responding to defendants’ objection to hold it. After review of the case law, in particular the cases of Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 604 A.2d 1010 (1992) and Orndoff v. Wilson, 760 A.2d 1 (Pa. Super. 2000), this court has denied the post-trial motions; refusing to hold a hearing, and entering judgment on the verdict.

The plaintiffs’ prayer for a hearing to determine whether outside influences affected the jury’s deliberation is not required under Pennsylvania law and would be meaningless if held in any event. The Commonwealth has what is termed as the “no impeachment” rule concerning whether a valid attack can be made on the verdict rendered by a jury. In determining whether a verdict can be set aside based on extraneous influence, the court must first decide whether a hearing is warranted. If a hearing is in fact held, a juror may testify only as to the existence of the outside influence, but not how an individual juror may be affected in arriving at his or her decision. The determination then rests with the trial judge as to whether to grant a new trial based upon the nature of the influence. To allow a less restrictive rule would mean that no jury verdict would ever be safe from attack. A juror who may have had a change of heart could, at a subsequent time, return to court stating how and why some outside influence had governed his or her decision. Pennsylvania law prohibits this type of situation from occurring. See Carter, supra. The testimony of the subjective reasoning process of the juror is inadmissible. See Omdojf, supra. Applying this Pennsylvania principle of law to the instant case, it is clear that the contents of Ms. Toller’s letter are insufficient in nature to require a hearing and grant of new trial. It states, to her knowledge, the jurors in question spoke to “various people such as relatives and friends involved in the medical profession and their own personal physicians to get their opinions regarding whether a CAT scan should have been performed earlier;” presumably to determine when the infection should have been discovered. If a hearing were held, what else could Ms. Toller testify about that was not already contained in her letter? If other jurors were subpoenaed, all they would be competent to testify about would be whether they did in fact discuss the case with individuals not on the jury. Ms. Toller does not know whether these discussions influenced these jurors nor can these jurors testify to this aspect as well. Consequently, on this basis alone, the Toller letter’s contents are insufficient for this court to disturb the verdict.

In addition, it seems that the information which was the subject matter of the extraneous communications was well covered by both sides in the presentation of the parties’ respective cases. The issue raised in the letter involved when the CAT scan should have been performed to determine the existence of the subdural empyema. There was ample testimony, presented at trial, by experts for both the plaintiffs and the defendants, as to what period in time during the child’s treatment, it was reasonable to order the CAT scan. Under the case law cited, if the subject of the so-called outside influence amply had been covered at trial, then any information a juror might have acquired outside the trial itself is irrelevant and moot. While it is true and fundamental that every litigant is entitled to trial comprised of an impartial jury, free to the furthest extent practical from extraneous influences, this principle does not mean that any outside factor raised must necessarily be pursued. See Carter, supra at 419, 604 A.2d at 1015. A weighing and considering of the “no impeachment” rule, the nature of the alleged extraneous influence raised in this case, and its relation to what was presented at the trial, clearly leads to the conclusion that a new trial is not warranted in this instance.


author: FORNELLI, P.J.,

text:
    Rotell v. Erie Insurance Group

      March 16, 2001
    C.P. of Mercer County,
    no. 1997-55.

      Jason E. Matzus, for plaintiff.

      Paul K. Geer, for defendant.
   FORNELLI, P.J.,

The matter for disposition is defendant’s motion for judgment on the pleadings regarding Count I of plaintiff’s complaint. For the reasons set forth hereafter, defendant’s motion will be granted.

This matter arises out of a fire that damaged plaintiff Cathy M. Rotell’s home on January 10, 1996. Prior to the fire, plaintiff had purchased a homeowner’s insurance policy from defendant Erie Insurance Group which provided fire loss coverage. This policy was in full force and effect at the time of plaintiff’s aforementioned loss. Defendant accepted liability for the damage to plaintiff’s home and paid the full repair cost of the structure.

A dispute between the parties arose as to the value of plaintiff’s personal property destroyed in the fire, as well as the method of determining how much of the loss would be covered by defendant. Pursuant to the language of the policy, parties appointed appraisers to determine both the actual cash value of the destroyed property and the property’s replacement cost. The appraisers determined that the actual cash value of the property was $41,597.54 and the replacement cost of the property was $71,303.02. Defendant made payment to the plaintiff in the amount of $30,597.54, representing the actual cash value of the property minus $11,000 in advances made by defendant. There is no evidence that either party has challenged the appraisers’ findings and determinations.

Subsequent to defendant’s payment of actual cash value less advances, plaintiff demanded the full replacement cost, as determined by the appraisers, of the lost personal property. At the time plaintiff made her demand, she had not replaced all of the items of personal property lost in the fire. The policy at issue provides that, if the entire loss is greater than $1,000. Defendant will not pay more than the actual cash value until actual repair or replacement is completed.

On January 8, 2000, plaintiff filed her complaint, demanding payment of the aforesaid replacement cost of her lost personal property. Defendant maintains that, under the policy, plaintiff is only entitled to replacement cost if she first replaces the lost items. Defendant has advised plaintiff that she could obtain full replacement cost if she used her actual cash value payment to purchase additional items, and, if the actual cash value payment was insufficient, defendant would make payment directly to a store or vendor. Plaintiff found this arrangement to be unsatisfactory.

Defendant filed the instant motion for judgment on the pleadings regarding Count I of plaintiff’s complaint (the replacement cost provision), and requests that this court give effect to the policy language, as aforesaid, thus dismissing Count I of plaintiff’s complaint. Plaintiff contends that the replacement cost provision of the policy is violative of public policy, and, therefore, is void and unenforceable, and, thus, plaintiff is entitled to the replacement cost of her lost personal property, despite the policy language.

A.

Pennsylvania Rule of Civil Procedure 1034(a) provides that “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a); see also, Mellon Bank N.A. v. National Union Ins. Co., 768 A.2d 865 (Pa. Super. 2001). The Superior Court has consistently held that “[a] motion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law.” Mellon Bank, 768 A.2d at 868 (quoting Citicorp North America Inc. v. Thornton, 707 A.2d 536, 538 (Pa. Super. 1998)); see also, Kelaco v. Davis & McKean General Partnership, 743 A.2d 525, 528 (Pa. Super. 1999); Cole v. Lawrence, 701 A.2d 987, 988 (Pa. Super. 1997); Vetter v. Fun Footwear Co., 447 Pa. Super. 84, 87, 668 A.2d 529, 530-31 (1995) (en banc).

In determining whether there is a dispute of facts, this court must restrict its consideration to the pleadings and those relevant documents attached thereto. Kelaco, 743 A.2d at 528; Thornton, 707 A.2d at 538; Cole, 701 A.2d at 988; Vetter, 447 Pa. Super. at 87, 668 A.2d at 530-31. Furthermore, this court must accept as true all well-pleaded facts of the non-moving party, while considering against it only those facts it specifically admits. Mellon Bank, 768 A.2d at 868.

B.

The Pennsylvania Supreme Court, in Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-305, 469 A.2d 563, 566 (1983), concisely summarized the principles governing the interpretation of insurance policy language, holding that the goal of such interpretation is ascertaining the intent of the parties as manifested by the language of the written contract. See also, Koenig v. Progressive Insurance Co., 410 Pa. Super. 232, 236, 599 A.2d 690, 691-92 (1991), appeal denied, 531 Pa. 640, 611 A.2d 712 (1992). It went on to hold:

“Where a provision of a policy is ambiguous,... [it] is to be construed in favor of the insured and against the insurer, the drafter of the agreement. . . . Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind, 503 Pa. at 305, 469 A.2d at 566. (citations omitted) While the proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured, Dibble v. Security of America Life Insurance Co., 404 Pa. Super. 205, 210, 590 A.2d 352, 354 (1991), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations that are clear and unambiguous. Zawierucha v. Philadelphia Contributionship Insurance Co., 740 A.2d 738, 741 (Pa. Super. 1999), appeal denied, 563 Pa. 608, 757 A.2d 934 (2000); St. Paul Mercury Insurance Co. v. Corbett, 428 Pa. Super. 54, 59, 630 A.2d 28, 30 (1993), appeal discontinued, 535 Pa. 658, 634 A.2d 221 (1993).

Defendant cites Reese v. Northern Insurance Company of New York, 207 Pa. Super. 19, 24, 215 A.2d 266, 269 (1965), in which the Superior Court reviewed a replacement cost provision that did not mandate the actual repair or replacement of lost items prior to payment of replacement cost. The court stated, in dicta, that “[h]ad such a clause been included in the present policy, there would be some justification for defendant’s contention [that the insured is not entitled to full replacement cost until and unless he actually replaces or rebuilds] but such was not the case.” Reese, 207 Pa. Super. at 25, 215 A.2d at 269. Thus, the Reese court did not actually endorse the replacement cost provision, but merely stated that the existence of such a provision would have supported insurer’s argument. Reliance on Reese for the proposition that it supports the validity of a replacement cost provision is, therefore, tenuous.

Defendant also cites Canulli v. Allstate Insurance Company, 315 Pa. Super. 460, 462 A.2d 286 (1983) for the proposition that the court there determined that the requirement of actual repair or replacement prior to payment in excess of actual cash value was, as a matter of law, consistent with the applicable contract, the applicable statute (40 Pa.C.S. §636) and previous judicial interpretation of that statute. This is an inaccurate reading of Canulli. In Canulli, the Superior Court held that the trial court’s order, granting partial summary judgment in favor of the defendant/insurer in a fire loss claim, which did not terminate litigation between the parties or preclude insureds from litigating their cause of action, was interlocutory, and therefore not final and appealable. Canulli, 315 Pa. Super. at 465, 462 A.2d at 290. Thus, the Superior Court lacked jurisdiction and quashed the appeal as improperly taken. Id. The language cited by defendant, relating to the validity of the replacement cost provision, appears in the Canulli opinion in an excerpt from the trial court’s order quoted therein. See id. at 464, 462 A.2d at 288. However, the Superior Court neither endorsed the trial court’s reading of the policy at issue nor its legal evaluation thereof; the Superior Court merely quashed the appeal for lack of jurisdiction. Thus, there is no merit to defendant’s contention that Canulli stands for any proposition related to the validity of a replacement cost provision similar to the one at issue here.

Plaintiff relies on the holding in Ferguson v. Lakeland Mutual Insurance Company, 408 Pa. Super. 332, 596 A.2d 883 (1991), appeal denied, 531 Pa. 639, 611 A.2d 712 (1992), in support of her argument on unconscionability. In Ferguson, the Superior Court held that a homeowner’s insurance policy provision that limited the insurer’s liability to actual cash value of the property unless replacement has been made was void as unconscionable, because it required the insured to expend a large sum of money prior to a liability determination. Ferguson, 408 Pa. Super. at 337, 596 A.2d at 885.

In assessing the validity of the policy provision, the Ferguson court relied on the test set forth in Koval v. Liberty Mutual Insurance Company, 366 Pa. Super. 415, 531 A.2d 487 (1987), appeal denied, 518 Pa. 619, 541 A.2d 746 (1988). Koval held: “[Tjhe test for ‘unconscionability’ is two-fold. First, one of the parties to the contract must have lacked a ‘meaningful choice’ about whether to accept the provision in question. Second, the challenged provision must ‘unreasonably favor’ the other party to the contract.” Koval, 366 Pa. Super. at 423-24, 531 A.2d at 491. (citations omitted) Ferguson concluded that insurance contracts are contracts of adhesion and therefore, the parties had unequal bargaining power with the insured being forced to adhere to the insurer’s terms, satisfying the first prong of the Koval test. Ferguson, 408 Pa. Super. at 336, 596 A.2d at 885. Ferguson also held that “the second prong of the Koval test is also met: the challenged provision unreasonably favors appellant. Since appellant denied liability, appellees were faced with the unsavory choice of either accepting the lower actual cash value of the organ or expending a large sum of money in replacement costs without a guarantee of reimbursement. In fact, under the terms of the contract, appellees could have only received replacement value in this instance after expending the replacement or repair funds and obtaining a judicial determination concerning liability.” Id. at 336-37, 596 A.2d at 885. (emphasis supplied)

Plaintiff attempts to bolster her argument by citing Gilderman v. State Farm Insurance Company, 437 Pa. Super. 217, 649 A.2d 941 (1994), allocatur denied, 541 Pa. 626, 661 A.2d 874 (1995). Gilderman held that an insurer that has agreed to pay repair or replacement costs less depreciation in advance of actual repair or replacement of a covered loss may not automatically withhold both depreciation and a flat 20 percent representing contractor overhead and profit from its advance payment. Gilderman, 437 Pa. Super. at 219, 649 A.2d at 942. The court noted that the insurer and amicus curiae attempted to reframe the issue into: whether a replacement cost provision similar to the one at issue instantly was void as against public policy, in a “thinly disguised attempt. . . to limit the holding” in Ferguson. Id. at 222, 649 A.2d at 943-44. The court stated:

“In Ferguson, we struck down as void against public policy a provision requiring an insured who procured replacement cost coverage to actually replace property before receiving the full replacement value of the property. In that case, the insurer denied coverage. We reasoned that it was unconscionable to require insureds to procure from their own funds, which they may not have, replacement property prior to receipt of replacement cost since the insureds expected to receive such coverage by purchasing replacement value coverage.” Id. at 222-23, 649 A.2d at 944. Despite this language, the court later concluded that “[a]ppellants have not asked us to declare void as against public policy the provision requiring repair or replacement prior to payment of full repair or replacement costs. Amicus curiae and State Farm will have to wait to have the issue revisited — in a case wherein it is raised.” Id. at 223, 649 A.2d at 944. Thus, it appears that the Superior Court has left the door open for a case like the one at bar.

C.

The case at bar presents facts substantially dissimilar to those in Ferguson. Here, defendant admitted liability and guaranteed reimbursement to plaintiff or plaintiff’s vendors if plaintiff actually replaced the lost items. Thus, Ferguson’s reasoning is inapplicable here and the policy provision must be evaluated under both basic contract law and the standards set forth in Koval and Standard Venetian Blind.

The provision here simply and clearly provides that the defendant “will pay no more than the actual cash value of the damage until actual repair or replacement is completed .. . (See policy at replacement cost settlement on personal property endorsement.) Therefore, the language of the contract is clear and unambiguous and this court is required to give effect to that language. Standard Venetian Blind, 503 Pa. at 305, 469 A.2d at 566. Because the policy provision is clear and unambiguous, plaintiff may not argue that her reasonable expectations have somehow been frustrated here. Zawierucha, 740 A.2d at 741; Corbett, 428 Pa. Super. at 59, 630 A.2d at 30.

Next, the present policy provision must be evaluated as to unconscionability. Inquiries into the unconscionability of contract clauses are questions of law for the court to decide. Bishop v. Washington, 331 Pa. Super. 387, 399, 480 A.2d 1088, 1094 (1984). Applying the Koval test, as did the Superior Court in Ferguson, shows substantial differences between the present case and Ferguson. With respect to the first prong of the Koval test, insurance contracts are contracts of adhesion and therefore, the parties had unequal bargaining power with the insured being forced to adhere to the insurer’s terms, satisfying lack of bargaining power requirement. Ferguson, 408 Pa. Super. at 336, 596 A.2d at 884; Bishop, 331 Pa. Super. at 400,480 A.2d at 1094. However, the fact that a contract is adhesive does not necessarily render it unenforceable. Neil v. Allstate Insurance Co., 379 Pa. Super. 299, 313, 549 A.2d 1304, 1311 (1988). Thus, although the provision here likely meets the first prong of the Koval test, as plaintiff lacked a meaningful choice as to acceptance of the provision, this alone does not render the replacement cost provision unenforceable.

Satisfaction of the second prong of the Koval test turns on whether the challenged provision unreasonably favors defendant. Koval, 366 Pa. Super. at 423-24,531 A.2d at 491. The Ferguson court, in the above-quoted excerpt, makes clear that its finding that the provision there unreasonably favored insurer was based on: (1) insurer’s denial of liability; (2) insureds’ “unsavory” choice of either accepting actual cash value or expending a large sum in replacement costs without a guarantee of reimbursement; and (3) any payment of replacement value by insurer hinged on either expending funds or obtaining a judicial determination of liability. Ferguson, 408 Pa. Super, at 336-37,596 A.2d at 885. Thus, the Ferguson replacement cost provision was deemed unconscionable despite its clear and unambiguous language.

None of the elements relied upon by the Ferguson court in determining the provision there to be unconscionable are present in the instant matter. Here, the defendant has accepted liability for the lost items of personal property, eliminating any need for judicial determination of liability as a prerequisite to recovery. Moreover, while plaintiff must actually repair or replace the property prior to receiving replacement value, she is certainly not faced with the aforesaid choice of accepting actual cash value or expending a large sum without guarantee of reimbursement. Defendant is quite willing to make payment directly to the vendors/dealers of the replacement property, eliminating any out-of-pocket expenditure by plaintiff and any uncertainty as to the availability of payment. Thus, the provision at issue does not unreasonably favor defendant.

Plaintiff argues that she paid for replacement cost coverage and is entitled to the replacement value of her property notwithstanding her failure to repair or replace the lost items. The clear and unambiguous language of the policy states otherwise and the premiums paid by plaintiff presumably reflect this. Thus, Ferguson and Gilderman are inapposite and inapplicable to the instant matter. This court must give full force and effect to the contract language. The replacement value provision of the instant policy is not void as unconscionable. Because the clear and unambiguous language of the replacement value provision conditions payment of replacement cost upon the actual repair or replacement of the items of covered loss, plaintiff must abide by this condition in order to be entitled to her replacement cost.

While Ferguson and Gilderman appear to be the only Pennsylvania cases that evaluate replacement cost provisions, this court’s survey of the relevant case law from other jurisdictions augments the above conclusion. Generally, actual replacement of damaged or destroyed property has been held to be a valid prerequisite to the collection of proceeds under a replacement cost endorsement of an insurance policy. Randy R. Koenders, Annotation, Construction and Effect of Property Insurance Provision Permitting Recovery of Replacement Cost of Property, 1 A.L.R.5th 817, 829 (1992). A thorough reading of the Annotation and cases cited therein, as well as this court’s independent research, reveal nearly unanimous support for the validity of replacement cost provisions that predicate payment of replacement value upon actual repair or replacement. See e.g., Hilley v. Allstate Insurance Co., 562 So.2d 184, 189 (Ala. 1990); Hess v. North Pacific Ins. Co., 859 P.2d 586, 590 (Wash. 1993); BSF Inc. v. Cason, 333 S.E.2d 154, 157-58 (Ga. Ct. App. 1985); Higginbotham v. American Family Insurance Co., 493 N.E.2d 373, 375 (Ill. App. Ct. 1986); Ferrara v. Insurance Co. of North America, 521 N.Y.S.2d 668, 670 (N.Y. App. Div. 1987); Miller v. Farm Bureau Town & Country Insurance Co., 6 S.W.3d 432, 438 (Mo. Ct. App. 1999); Kastendieck v. Millers Mutual Insurance Co., 946 S.W.2d 35, 39-40 (Mo. Ct. App. 1997); Bratcher v. State Farm Fire and Casualty Co., 961 P.2d 828, 831 (Okla. 1998); Snellen v. State Farm Fire and Casualty Co., 675 F. Supp. 1064, 1067 (W.D. Ky. 1987) (applying Kentucky law); Lerer Realty Corp. v. MFB Mutual Insurance Co., 474 F.2d 410, 413 (5th Cir. 1973), reh’g denied, 477 F.2d 596 (5th Cir. 1973) (applying Texas law); Rolls v. Aetna Casualty and Surety Co., 503 F.2d 569, 570 (8th Cir. 1974) (applying Iowa law); Whitmer v. Graphic Arts Mutual Insurance Co., 410 S.E.2d 642, 645-46 (Va. 1992).

Because the replacement value provision of the policy at issue is unambiguous, and because substantial differences exist between the policy provision here and the one deemed unconscionable in Ferguson, the provision here does not meet the second prong of the Roval test and, therefore, is not void as unconscionable. Accordingly, defendant’s motion for judgment on the pleadings as to Count I of plaintiff’s complaint will be granted.

Hence, this order:

ORDER

And now, March 16, 2001, it is hereby ordered that defendant’s motion for judgment on the pleadings regarding Count I of plaintiff’s complaint is granted.

      . The policy defines replacement cost as “the cost, at the time of loss, of a new article identical to the one damaged, destroyed or stolen. If the identical article is no longer manufactured or is not available, we will pay the cost of a new article similar to that damaged or destroyed and which is of comparable quality and usefulness.” See policy at replacement cost settlement on personal property endorsement.

      . The policy states “[w]e will pay no more than the actual cash value of the damage until actual repair or replacement is completed....” See policy at replacement cost settlement on personal property endorsement.

      . This court notes that Gilderman’s summary of the Ferguson holding is inaccurate when read against the actual language of Ferguson, quoted herein.

      . See also, Kastendiek v. Millers Mutual Insurance Co., 946 S.W.2d 35, 40 (Mo. Ct. App. 1997); Brachter v. State Farm Fire and Casualty Co., 961 P.2d 828, 831 (Okla. 1998) (holding replacement cost provisions making payment of replacement cost dependant upon actual repair or replacement are unambiguous).

      . The provision does favor defendant insofar as it limits defendant’s payment of replacement value to the value of those items actually repaired/replaced. However, plaintiff is nonetheless entitled to the actual cash value of any items she does not repair or replace. This is the coverage she purchased and she must abide by the terms thereof.

      . Even if Ferguson and Gilderman were extended to the case at bar, this court has substantial reservations concerning the soundness of the reasoning therein. Ferguson predicates unconscionability on the insurer’s denial of liability. Similarly, State Farm Fire and Casualty Ins. Co. v. Micelli, 518 N.E.2d 357, 362 (Ill. App. Ct. 1987), appeal denied, 522 N.E.2d 1257 (Ill. 1988), held that insureds’ failure to repair/replace lost property, as required by the policy, did not preclude recovery of replacement cost, where insurer made compliance with said condition impossible by denying liability. However, the denial of liability is not material to a determination of a policy’s unconscionability. Regardless of whether the insurer has accepted or denied policy liability, the insured may still be required to litigate the appropriate measure of damages and the preconditions thereof. Moreover, this reasoning runs counter to long-standing basic contract law. The insurer has provided a limited means for insured to obtain replacement cost for lost property. For this limited right and the risk associated therewith, insurer has charged a given premium. Had plaintiff desired different or broader replacement cost coverage, she was free so to contract, with the requisite increased premium reflecting the absence of a repair or replacement precondition. The Ferguson and Micelli holdings ignore the actual bargain made by the parties to the insurance contract, enlarging the coverage of the policy beyond its natural and obvious meaning, thereby negating the parties’ intent. Absent an ambiguity, the parties’ expectations are contained in the policy language and ought to be enforced.


author: HERMAN, J.,

text:
    Rubeck v. Milroth

      March 14, 2001
    C.P. of Franklin County,
    A.D. no. 1999-20582.

      Lewis H. Markowitz, for plaintiffs.

      Gary Lathrop, for defendant Milroth.

      Michael A. Sosnowski, for defendant Fulton County Medical Center.
   HERMAN, J.,

INTRODUCTION

Before the court are preliminary objections filed by the defendant William L. Milroth M.D. to a complaint alleging medical malpractice in the death of plaintiffs’ decedent Luther Rubeck. The defendant moves to dismiss for improper venue or in the alternative to transfer venue from Franklin to Fulton County. The defendant’s second objection is a motion to strike or in the alternative for a more specific pleading. The court heard argument and has reviewed counsel’s briefs and relevant authority. The matter is ready for decision.

BACKGROUND

According to the complaint, plaintiffs’ decedent, Luther Rubeck, was admitted by Dr. Milroth to the Fulton County Medical Center on November 10, 1997. Dr. Milroth treated Mr. Rubeck for an ulceration to his left lower extremity brought on by diabetes. Mr. Rubeck was discharged from the Center on November 18, 1997 and was seen by Dr. Milroth at his office thereafter. Mr. Rubeck was admitted to the Chambersburg Hospital on January 5, 1998 where he underwent surgery to amputate his gangrenous lower left extremity. Mr. Rubeck subsequently died on September 25,1998. The complaint alleges Dr. Milroth was never able to successfully control Mr. Rubeck’s diabetes despite being his physician for approximately 3 1/2 years before the incidents set forth in the complaint.

The plaintiffs’ original writ of summons and complaint named the Fulton County Medical Center as a co-defendant and the Center filed its own preliminary objections. Sometime after both defendants’ preliminary objections were listed for argument, plaintiffs’ counsel indicated to both defendants his desire to discontinue the action as against the Center. Dr. Milroth did not concur with removing the Center from the case and indicated his non-concurrence informally to plaintiffs’ counsel. Counsel for the Center did not appear at oral argument and counsel for Dr. Milroth did not present to the court any grounds for his nonconcurrence.

Pa.R.C.P. 229(b) states: “A discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court after notice to all parties.” The court has broad discretion in determining whether a remaining defendant will be prejudiced by a partial discontinuance. Failor v. Westex Inc., 413 Pa. Super. 343, 605 A.2d 390 (1992). Dr. Milroth did not formally object to a partial discontinuance, nor did he pursue his objection at oral argument. He made no showing that a partial discontinuance would cause him prejudice. Therefore, this action as against the Center will be discontinued and the caption changed to leave Dr. Milroth as the sole defendant.

DISCUSSION

Venue

Dr. Milroth argues venue should be transferred to Fulton County pursuant to Pa.R.C.P. 1006(a) which provides: “Except as otherwise provided in subdivision (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or any other county authorized by law.”

The record indicates Dr. Milroth was served with the writ of summons at his office at 318 North First Street, McConnellsburg, Fulton County. According to Dr. Milroth’s affidavit, all treatment he rendered to Mr. Rubeck was rendered either at his office in McConnellsburg, or at the Fulton County Medical Center. The affidavit also states that he is a solo practitioner with his principal place of business in McConnellsburg, that the cause of action arose in Fulton County and that no transaction or occurrence out of which the cause of action arose took place in Franklin County. The affidavit also states: “At the time of the events alleged in the complaint and thereafter, I have... resided in Fulton County and not in Franklin County, PA.” Nothing in the complaint indicates the cause of action arose in Franklin County or that a transaction or occurrence underlying the cause of action took place in Franklin County. There is also nothing in the record to indicate Dr. Milroth can be served in Franklin County.

The plaintiffs respond to the motion by focusing on the principle of forum non conveniens as set out in subsection (d)(1) of Rule 1006: “For the convenience of parties and witnesses, the court upon petition of any party, may transfer an action to the appropriate court of any other county where the action could originally have been brought.” Citing Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 701 A.2d 156 (1997), the plaintiffs urge that the court should give deference to a plaintiff’s choice of forum, with the defendant having a heavy burden of showing by reference to detailed information on the record that the plaintiff’s choice is not merely inconvenient to him but is oppressive or vexatious. Under Cheeseman and its progeny, claims by a defendant that no significant aspect of a case involves the chosen forum and that litigating in another forum would be more convenient, is not the type of record evidence which proves that litigating the case in the chosen forum is oppressive or vexatious. Id.; Hoose v. Jefferson Home Health Care Inc., 754 A.2d 1 (Pa. Super. 2000).

One of the plaintiffs, David W. Rubeck, a co-executor of Luther Rubeck’s estate, lives in Franklin County. The decedent received treatment in Franklin County from other physicians while he was a patient at Chambers-burg Hospital in January of 1998. This, the plaintiffs contend, is sufficient to make Franklin County the more convenient forum for them, and Dr. Milroth, they contend, has not carried his burden of showing the choice of Franklin County would be oppressive or vexatious to Dr. Milroth, potential witnesses, or other sources of proof. For example, there is no indication as to where the nurses who participated in the decedent’s care live, or that it would be a hardship for them to come here to participate in the case. It was the defendant’s burden to detail evidence on the record, such as through affidavits, of any undue hardship. Hoose; Johnson v. Henkels & McCoy, 707 A.2d 237 (Pa. Super. 1997).

Although we do not dispute the plaintiffs’ reading of these cases, we agree with Dr. Milroth that the plaintiffs’ reliance on Cheeseman and its interpretive cases is a distraction from the real issue: that this action could not have been filed in Franklin County to begin with under subsection (a). Those cases instead focus on forum non conveniens under subsection (d)(1) and whether the trial court, in granting the motion to transfer, gave undue weight to the docket backlog in the county where the action was initially filed.

There are three grounds on which to challenge venue, but only improper venue may be raised by preliminary objection. Fomm non conveniens and the inability to hold a fair and impartial trial must be raised by petition. Pa.R.C.P. 1006(e); comments to Pa.R.C.P. 1028. Unlike the defendants in Hoose and Johnson, Dr. Milroth did not object to Franklin County on grounds of forum non conveniens, nor did he cite subsection (d)(1). If that had been his position, he would have been required to file a petition rather than preliminary objections in order to allow the court to take evidence on the various factors which must be weighed before the court can order transfer. Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989). A forum non conveniens weighing analysis is triggered only where both forums are equally technically correct or competent in the first instance. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990).

The record is devoid of any indication that (1) the cause of action arose in Franklin County, (2) a transaction or occurrence took place in Franklin County out of which the cause of action arose, or (3) Dr. Milroth can be served in Franklin County. On the contrary, it is clear from the record that all treatment rendered to the decedent by Dr. Milroth, which is at the heart of this negligence action, was rendered in Fulton County by a defendant whose practice is principally located in Fulton County, who lived in Fulton County during the events at issue and who continues to live in Fulton County. Under these circumstances, Fulton not Franklin County is the proper venue for this action, and the question of plaintiffs’ choice and convenience does not come into play.

Motion To Strike

The other preliminary objection is a motion to strike or alternatively for a more specific pleading. Dr. Milroth asserts that paragraphs 14 A, B, C, H, I, J, K, L, M, N, O and P are vague and conclusory under Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). We agree.

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 paragraphs at issue allege Dr. Milroth was negligent:

“(A) By failing to properly diagnose the nature of plaintiffs’ decedent’s problem or the seriousness thereof and act according to reasonable standards.
“(B) By failing to accurately record the symptoms expressed by the patient and his family.
“(C) By ignoring the symptoms experienced by plaintiffs’ decedent or by overlooking such symptoms.
“(H) By failing to extend proper and reasonable services.
“(I) By failing to exercise reasonable care and diligence in the application of knowledge and skill to plaintiffs’ decedent.
“(J) By failing to use best judgment in the treatment and care of patients such as plaintiffs’ decedent.
“(K) By holding out expertise, which induced plaintiffs’ decedent and his family to believe that adequate and proper care would be provided when, in fact, adequate, proper and reasonable care was not available or was not provided.
“(L) By failing to meet recognized standards of good practice in the profession of treatment of individuals such as plaintiffs’ decedent.
“(M) By failing to adhere to accepted procedures of administering treatment to individuals [such] as plaintiffs’ decedent.
“(N) By failing to possess a degree of professional learning, skill and ability which others similarly situated ordinarily possess.
“(O) By failing to exercise reasonable care and diligence in the application of his knowledge and skill to the patient’s case.
“(P) By failing to use his best judgment in the treatment and care of his patient.”

Even when read in the entire context of the complaint, these averments do not provide sufficient facts as to what Dr. Milroth allegedly did or did not do and when with regard to treating Mr. Rubeck. These averments do not refer, even briefly, to the particular treatments rendered between November 10 and 18, 1997 and between November 18,1997 and January 5,1998 when Mr. Rubeck entered Chambersburg Hospital. In addition, although the complaint alleges Dr. Milroth treated Mr. Rubeck for more than 3 1/2 years before the incident in question “without ever successfully getting the diabetes under control,” the complaint sets forth no details whatsoever about the nature and extent of that treatment. Although the plaintiffs are not required to plead evidence, these allegations can certainly be drafted with greater factual specificity so as to allow Dr. Milroth to adequately prepare his defense.

ORDER

Now March 14,2001, the preliminary objection of the defendant Dr. William L. Milroth M.D. to the plaintiffs’ choice of venue in Franklin County and his motion for change of venue to Fulton County is hereby sustained. The costs and fees for transfer and removal of the record shall be paid by the plaintiffs in accordance with Pa.R.C.P. 1006(e). The preliminary objection in the nature of a motion to strike or in the alternative for a mere specific pleading is sustained. The plaintiffs will file an amended complaint within 20 days of receipt of this order.

It is further ordered that the preliminary objection in the nature of a demurrer filed by defendant Fulton County Medical Center is sustained.

It is further ordered that this action is discontinued as against defendant Fulton County Medical Center and the caption of the case changed to “David W. Rubeck and Larry E. Rubeck, co-executors of the estate of Luther Rubeck, deceased, plaintiffs v. William L. Milroth M.D., defendant.”

      . Dr. Milroth’s affidavit dated March 3,2000 appears in the record as exhibit B attached to his preliminary objections filed May 22,2000.

      . Plaintiffs’ counsel represented at oral argument that the other plaintiff and co-executor, Larry E. Rubeck, also lives in Franklin County, though we cannot consider this fact insofar as it appears only in plaintiffs’ brief and not in the record.

      . Those factors include the relative ease of access to sources of proof and the availability of compulsory process for the attendance of unwilling witnesses, the cost of obtaining attendance of willing witnesses, and the wisdom of imposing jury duty upon people of a community which has no relation to the litigation. Id.