author: NEALON, J.,

text:
    Commonwealth v. Dargon

      C.P. of Lackawanna County,
    no. 03-CR-1495.

      PaulJ. Ware, assistant district attorney, for Commonwealth.

      James Elliott, for defendant.
    March 11, 2005
   NEALON, J.,

— After the defendant was convicted of various drug offenses and sentenced to be incarcerated for eight to 16 years, he filed the instant motion seeking a judgment of acquittal or a new trial. Defendant contends that the recent ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), barred the Commonwealth’s use of a non-testifying confidential informant’s statements under the “course of conduct” exception to the hearsay rule. Defendant also requests a new trial on the basis of after-discovered evidence and challenges the validity of his consent to search form and the sufficiency of the evidence supporting his convictions for possession of controlled substances with the intent to deliver. Since none of the arguments raised by the defendant entitle him to relief, the defendant’s post-sentence motion will be denied.

I. PROCEDURAL HISTORY

On June 20, 2003, the defendant was arrested and charged with possession of heroin and cocaine with the intent to deliver, criminal conspiracy to possess heroin and cocaine with the intent to deliver, and possession of heroin and cocaine. Following a preliminary hearing on July 15, 2003, District Justice Joseph Toczydlowski bound all charges over for trial (see transcript of proceedings (T.P.) on 7/15/03, pp. 80-81), and a jury trial was later conducted from January 21, 2004 to January 23,2004. At the conclusion of the Commonwealth’s case, the defendant’s demurrer to the conspiracy charges was granted, and the criminal counts alleging possession of controlled substances and possession with the intent to deliver (PWID) were submitted to the jury. (T.P. 1/23/ 04, pp. 45-47.) On January 23, 2004, the jury found the defendant guilty of three counts of possession and three counts of PWID. (Id., pp. 152-53.)

On April 21, 2004, the defendant was sentenced to three to six years imprisonment and a $10,000 fine for PWID of heroin and five to 10 years incarceration for PWID of cocaine. (T.P. 4/21/04, pp. 31-44.) Defendant’s convictions for possession of controlled substances merged with his PWID convictions for purposes of sentencing. Defendant’s sentences for PWID of heroin and cocaine were ordered to run consecutively such that the aggregate sentence imposed was eight to 16 years incarceration and a $10,000 fine. (Id, pp. 45-48.)

On May 3,2004, the defendant’s counsel filed a post-sentence motion seeking a judgment of acquittal or a new trial. However, on May 14, 2004, the defendant filed a pro se appeal to the Superior Court of Pennsylvania. After defense counsel filed a petition to discontinue the defendant’s pro se appeal without prejudice, the Superior Court of Pennsylvania issued a per curiam order on October 14,2004, dismissing the defendant’s appeal. By order dated November 19, 2004, a hearing on the defendant’s post-sentence motion was scheduled for December 27,2004, and the parties were directed to submit their supporting and opposing briefs on December 6,2004 and December 20,2004. Following the completion of the hearing and oral argument on December 27, 2004, this matter was submitted for a decision.

II. FACTUAL BACKGROUND

On June 20, 2003, Detective Robert Mazzoni of the narcotics investigation unit of the Lackawanna County district attorney’s office was advised by a confidential informant that he could purchase heroin from a 5'5", 130-pound African American male named “Oc” or his girlfriend “Kay” who both resided on Main Street in Old Forge near the intersection of Main Street and Dunn Avenue. The confidential informant further informed Detective Mazzoni that “Oc” operated a brown Corsica which had a temporary registration notice in its window and bore a license plate that read FTD 3761. (T.R 1/22/ 04, pp. 48-49,95,108.) Detective Mazzoni provided this information to Detective Gunther Pisa and Detective Joseph Jordan who conducted surveillance of the 300 block of North Main Avenue near the intersection of North Main Avenue with Dunn Avenue in Old Forge. The detectives located the brown Corsica in question situated near the property where the defendant and Karlene Bassarath resided at 336 North Main Street, Old Forge. (T.P. 1/23/04, pp. 11, 24-25.)

Once the brown Corsica had been identified, arrangements were made for the confidential informant to make a “controlled buy” of heroin from the defendant. In the presence of Detective Mazzoni, the confidential informant contacted the defendant by cell phone and arranged to meet him at the Price Chopper parking lot in Taylor. The confidential informant was then frisked by Detective Mazzoni to ensure that he had no drugs on his person, and was provided with $200 in serialized currency with which to purchase the heroin. Immediately following the confidential informant’s telephone conversation with the defendant, Detectives Pisa and Jordan observed the defendant and Ms. Bassarath exit their residence at 336 North Main Street and enter the brown Corsica. Detectives Pisa and Jordan followed the brown Corsica as it drove from 336 North Main Street, Old Forge, to the parking lot of the Price Chopper in Taylor where Detective Mazzoni was conducting surveillance from an unmarked vehicle. (T.P. 1/22/04, pp. 49-52; T.P. 1/23/ 04, pp. 11-12, 17-18, 25-26.)

Detective Mazzoni had instructed the confidential informant that if a purchase of heroin was consummated, the confidential informant should exit the Corsica wearing his hat backwards. Once the defendant arrived at the Price Chopper parking lot, Detective Mazzoni observed the confidential informant enter the Corsica and converse with the defendant. As the confidential informant exited the Corsica, he turned his hat backwards thereby signaling to Detective Mazzoni that heroin had been purchased. (T.P. 1/22/04, pp. 52, 105, 111.) Defendant promptly departed from the Price Chopper parking lot in the Corsica and Detective Pisa and Detective Jordan followed that vehicle as it traveled toward Scranton. Contemporaneously with the defendant’s departure from the parking lot, the confidential informant entered Detective Mazzoni’s vehicle and provided him with 10 bags of heroin which the confidential informant had purchased from the defendant. (Id., pp. 52-53, 57-59.)

Detective Mazzoni contacted Detectives Pisa and Jordan via their radios and advised them that the confidential informant had in fact purchased heroin from the defendant. Detective Mazzoni, Detective Pisa and Detective Jordan eventually stopped the Corsica in Scranton and the defendant and Ms. Bassarath were taken into custody. Although the detectives conducted a pat-down for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the defendant and Ms. Bassarath were not formally searched before they were transported to the district attorney’s office in separate vehicles. (Id., pp. 53-54, 59-60; T.P. 1/23/04, pp. 12-13, 26-27.) Defendant was transported in the rear seat of Detective Jordan’s vehicle, and Detective Jordan later discovered the $200 in serialized currency stuffed between the rear seats of his vehicle where the defendant had been seated. (T.P. 1/22/04, pp. 56-57, 75; T.P. 1/23/04, pp. 28-30.)

After the defendant and Ms. Bassarath were issued their Miranda warnings, they informed the detectives that they had both been residing at 336 North Main Street, Old Forge, following the defendant’s release from jail approximately two weeks earlier. Defendant admitted to the detectives that more drugs were located at that residence and the defendant and Ms. Bassarath signed consent forms authorizing the detectives to conduct a war-rantless search of their residence at 336 North Main Street, Old Forge. (T.P. 1/22/04, pp. 60-63, 79-81, 118-19, 122, 131.) On the consent to search form signed by the defendant, he identified 336 North Main Street, Old Forge, as his residence address. (Id., pp. 121, 125, 131; T.P. 1/23/04, pp. 13-14; Commonwealth’s exhibit no. 3.)

The detectives transported the defendant to his North Main Street residence where he retrieved and produced additional drugs for the detectives. Specifically, the defendant retrieved 60 individual bags of heroin weighing four grams which were concealed in an open box of Uncle Ben’s rice, and 26 grams of crack cocaine and 5.2 grams of cocaine hydrochloride which were hidden in a coffee filter. (T.P. 1/22/04, pp. 63-64, 116-17, 132; T.P. 1/23/ 04, pp. 14-15.) The 60 individual bags of heroin had identical labeling and markings as the heroin which had been purchased by the confidential informant in the Price Chopper parking lot. (T.P. 1/22/04, pp. 64, 133.) The heroin and cocaine seized from the defendant had a street value of $4,300. {Id., p. 75.)

At the time of his arrest, the defendant was unemployed and had been paroled from jail 16 days earlier. (T.P. 1/ 22/04, p. 74.) When questioned by the detectives regarding any proceeds from the sale of drugs, the defendant escorted the detectives to his bedroom where he retrieved $1,092 in cash from his dresser drawer. {Id., p. 64.) During their search, the detectives also discovered items of clothing which the defendant indicated belonged to him, thereby providing further evidence of his residency at that address. {Id., pp. 73, 134-35.) Based upon the large quantity of drugs seized and due to the absence of any paraphernalia customarily affiliated with the consumption, rather than the sale, of drugs, the defendant was charged with possession of controlled substances and possession with the intent to deliver. (Id., pp. 66-68, 70, 74.)

Defendant was not charged with any drug delivery offenses in connection with his sale of 10 bags of heroin to the confidential informant in the Price Chopper parking lot. Defendant presented an in limine motion seeking to preclude any reference to this uncharged criminal activity pursuant to Pa.R.E. 404(b)(1). Since the Commonwealth was required to prove the defendant’s intent to deliver in order to secure a P WID conviction, the Commonwealth sought to introduce evidence of the Price Chopper transaction under Pa.R.E. 404(b)(2) which states that “[e]vidence of other crimes, wrongs or acts may be admitted for other purposes, such as proof of... intent, preparation, plan, knowledge, identity or absence of mistake or accident.” See also, Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa. Super. 2004) (under Pa.R.E. 404(b), “[e]vidence of prior bad acts is also admissible where the particular crime or act was part of a chain, sequence, or natural development of events forming the history of a case.”). In denying the defense motion, we found that: (1) the evidence was admissible under Rule 404(b)(2) as proof of intent; (2) the probative value of the evidence outweighed its potential for prejudice as per Rule 404(b) (3); and (3) the prosecution had provided the requisite notice of its intention to introduce the evidence at trial in compliance with Rule 404(b)(4). (T.P. 1/21/04, pp. 6-8, 15-19, 21-28.) Since a defendant is entitled to a limiting jury instruction prior to the admission of such evidence, see Commonwealth v. Hutchinson, 571 Pa. 45, 54, 811 A.2d 556, 561-62 (2002), cert. denied, 540 U.S. 858 (2003), the jury was advised at trial that the challenged evidence was being offered only to prove the intent element of PWID and could not be considered “to show the character of the [defendant] or to show that he acted in conformity with that character.” (T.P. 1/22/04, pp. 54-56.)

Prior to trial, the defendant indicated his intention to call Ms. Bassarath as a witness, and the court arranged for her transportation from prison to the courthouse. However, the defendant later opted not to call Ms. Bassarath and did not offer any evidence in his defense. (T.P. 1/23/04, pp. 51-52,58-72.) As stated above, the jury found the defendant guilty of three counts of PWID and three counts of possession. {Id., pp. 152-53.) In his post-trial motion, the defendant seeks a judgment of acquittal or a new trial on four bases. First, relying upon Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the defendant contends that Detective Mazzoni’s reference to certain statements made by the confidential informant violated the defendant’s rights under the Sixth Amendment’s Confrontation Clause. (T.P. 12/27/04, pp. 27-39.) Second, the defendant asserts that newly discovered evidence which he has secured from Verizon and the McCann Business School establishes that he did not reside at 336 N. Main Street, Old Forge, as of the date of his arrest on June 20, 2003. (Id., pp. 4-22.) Third, the defendant alleges that the consent to war-rantless search form was actually executed after the 336 N. Main Street residence had already been searched by the detectives, and that the drugs and contraband seized during that search should have been suppressed as the fruits of an unlawful search. (Id., pp. 46-48.) Last, the defendant submits that the evidence at trial was insufficient as a matter of law to support his convictions for PWID. (Id, pp. 49-50.)

III. DISCUSSION

(A) Statements by Confidential Informant

During his testimony, Detective Mazzoni explained how a “controlled buy” of heroin was arranged based upon preliminary information that he had received from a non-testifying confidential informant. To that end, Detective Mazzoni testified that he was approached by the confidential informant “who stated a purchase of heroin could be made from a black male by the name of ‘Oc’ or his live-in girlfriend by the name of Kay.” Detective Mazzoni stated that the confidential informant “described ‘Oc’ or O.C. as ablackmale,baldhead, five-foot-five to five-foot-four weighing about 130 pounds” who “was residing on Main Street in Old Forge at the intersection of Dunn Avenue” and “driving a brown car, brown Corsica, with Pennsylvania registration FTD ... 3761.” (T.P. 1/22/04, pp. 48-49.)

Prior to this testimony being offered, and in response to a hearsay objection lodged by defense counsel, the jury was provided with a cautionary instruction advising the jurors of the “very limited extent” to which they could consider such testimony. In the limiting instruction, the jury was cautioned that they were to consider “what the confidential informant allegedly said, not for the truth of the matter asserted, in other words, not to establish that the confidential informant did, in fact, say that, but only to explain why the officer upon receipt of that information then followed a certain course of conduct in connection with his investigation.” (Id., pp. 45-48.) The jury was twice admonished that it was to consider this particular testimony “only for that very limited purpose.” (Id., p. 48.) Furthermore, when Detective Mazzoni attempted to testify that the confidential informant had also stated that he had previously purchased heroin from the defendant, defense counsel’s objection was sustained on the grounds that the testimony was being offered for the truth of the matter asserted. Additionally, the jury was instructed to disregard the proffered statement since it “was not part of the course of conduct” exception to the hearsay rule. (Id., p. 50.)

Questions relating to the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Boczkowski, 577 Pa. 421, 451, 846 A.2d 75, 93 (2004). An abuse of discretion is not merely an error of judgment; discretion is abused when the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record. Commonwealth v. Snyder, 870 A.2d 336, 343 (Pa. Super. 2005). Hearsay is defined as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Commonwealth v. Gray, 867 A.2d 560, 570 (Pa. Super. 2005). Hearsay testimony is inadmissible “except as provided in the Pennsylvania Rules of Evidence, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.” Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003), app. denied, 863 A.2d 1143 (Pa. 2004); Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002), app. denied, 573 Pa. 663, 820 A.2d 703 (2003).

Statements made to police or law enforcement personnel which are not offered for the truth of the matter asserted may not constitute inadmissible hearsay. As the Superior Court of Pennsylvania has observed, “[cjertain out-of-court statements offered to explain a course of conduct are admissible as an exception to the hearsay rule as these statements are not offered for the truth of the matters asserted; they are offered to show information upon which the police acted.” Commonwealth v. Shotwell, 717 A.2d 1039, 1042 (Pa. Super. 1998). Such statements are admissible under what is commonly referred to as the “course of conduct” exception to the hearsay rule. See Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. 1997), app. denied, 556 Pa. 671, 727 A.2d 127 (1998) (detective permitted to testify regarding hearsay statement “to explain why he went to the hospital to speak with [defendant]”). Out-of-court statements of this nature are admissible pursuant to the course of conduct exception even if the statements are attributable to a non-testifying confidential informant. See e.g., Commonwealth v. Collazo, 440 Pa. Super. 13, 20-23, 654 A.2d 1174, 1177-79 (1995) (allowing police testimony that informant gave agreed-upon signal of consummated drug deal to explain why police moved in to apprehend and arrest defendant, where police officer testified from personal observation and court furnished cautionary instruction to jury); Commonwealth v. Smith, 250 Pa. Super. 436, 439, 378 A.2d 1015, 1017 (1977), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978) (inbook-making prosecution, testimony by trooper concerning statements made by informant to trooper to the effect that by calling a specific phone number the trooper could place bets, was not inadmissible hearsay); Commonwealth v. Tselepis, 198 Pa. Super. 449, 452, 181 A.2d 710, 712 (1962) (officer’s testimony about informant’s tip that defendant was conducting a lottery was admissible as “evidence as to the reason action is taken” by police). Instantly, the statements ascribed to the confidential informant were admitted into evidence, subject to a cautionary instruction, solely to explain why the detectives conducted surveillance of 336 N. Main Street and arranged for a controlled buy of drugs at a nearby Price Chopper parking lot.

Defendant contends that the admission of this “course of conduct” testimony was prejudicial error in light of the recent Supreme Court ruling in Crawford v. Washington. In Crawford, the Supreme Court partially abrogated its earlier decision in Ohio v. Roberts, 448 U.S. 56 (1980), and announced a new rule of law that substantially altered Sixth Amendment jurisprudence. Since the Crawford decision was issued more than one month after the defendant’s trial, it must first be determined whether the defendant may benefit from Crawford. In order for a new rule of law to apply retroactively to a case which has already been tried to verdict, the defendant must preserve the relevant issue by asserting a timely and specific objection to the introduction of the challenged evidence. Gray, 867 A.2d at 574 (finding that Crawford had been preserved by timely objections to the Commonwealth’s introduction of out-of-court statements). Our review of the record reveals that, prior to the commencement of jury selection, defense counsel asserted a continuing objection to the Commonwealth’s introduction of statements made by the confidential informant on the basis of the defendant’s “right to confront his accusers” and his lack of “an opportunity to confront the person that allegedly made the statements.” (T.P. 1/21/04, pp. 19, 28-30.) Therefore, defense counsel properly preserved the defendant’s Confrontation Clause rights such that Crawford may be considered as a possible basis for a new trial in this case. See Gray, supra.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” Roberts held that an unavailable witness’ out-of-court statement was admissible as long as it had adequate indicia of reliability, i.e., it fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66. The Crawford court concluded that “[t]his malleable standard often fails to protect against paradigmatic confrontation violations.” Crawford, 124 S.Ct. at 1369. Reasoning that the Confrontation Clause’s ultimate goal of ensuring reliability “is a procedural rather than a substantive guarantee,” Crawford concluded “that reliability [must] be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. at 1370. In so holding, the Supreme Court remarked:

“Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Id. at 1371.

Thus, the Crawford court concluded that testimonial statements of absent witnesses are admissible only where (1) the declarant is unavailable and (2) the defendant has had a prior opportunity for cross-examination. Id. at 1374. See also, Commonwealth v. Gribble, 863 A.2d 455, 464 n.7 (Pa. 2004); Commonwealth v. Brown, 853 A.2d 1029, 1034 (Pa. Super. 2004).

In his post-trial brief, the defendant maintains that Detective Mazzoni’s references to the confidential informant’s statements violated the defendant’s confrontation rights under Crawford and thereby warrant a new trial in this matter. (Dkt. entry no. 94, pp. 4-7.) Although the Commonwealth’s opposing brief does not address Crawford or the defendant’s Confrontation Clause arguments (id., no. 97), the Commonwealth alleged at the time of oral argument that Crawford is inapplicable because the defendant was not charged with drug delivery offenses related to the Price Chopper parking lot transaction. (T.P. 12/27/04, pp. 43-45.) The Commonwealth’s argument overlooks the fact that the Commonwealth affirmatively offered evidence of the Price Chopper parking lot transaction under Pa.R.E. 404(b)(2) in an effort to establish the intent element for the defendant’s PWID charges. (T.P. 1/21/04, pp. 6-8, 15-19, 21-28; T.P. 1/22/ 04, pp. 45-48, 54-56.) Hence, the Commonwealth’s use of this incriminating evidence implicated the defendant’s right under the Confrontation Clause to confront any witnesses against him.

Nevertheless, Crawford does not entitle the defendant to a new trial since Detective Mazzoni was subject to extensive cross-examination regarding the confidential informant’s reliability and his purported statements which were admitted into evidence for a limited purpose. (T.P. 1/22/04, pp. 90-106,110-13.) “Crawford does not apply where the reliability of testimonial evidence is not at issue, and a defendant’s right of confrontation may be satisfied even though the declarant does not testify.” United States v. Traía, 386 F.3d 536, 544 (3d Cir. 2004). (emphasis in original) In Traía, a police officer was permitted to testify regarding statements made by a non-testifying declarant in an attempt to establish the defendant’s consciousness of guilt. Finding that the defendant’s “rights under the Confrontation Clause were satisfied,” the United States Court of Appeals for the Third Circuit noted that the police officer “was available for cross-examination, so defense counsel therefore had an opportunity to question her account of the conversation with [the non-testifying declarant].” Id. at 545. Under the circumstances, the defendant’s confrontation rights under Crawford were deemed not to have been violated. Id. at 545. Accord, U.S. v. Hendricks, 395 F.3d 173, 183 (3d Cir. 2005) (citing Traía for the proposition that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted).

Even if the testimony in dispute was inadmissible under Crawford, any resulting error was harmless. See Passmore, 857 A.2d at 711 (“The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial.”). The confidential informant’s statements were merely cumulative of other untainted evidence which established the defendant’s guilt beyond a reasonable doubt. According to Detective Mazzoni’s unchallenged testimony, the defendant admitted that the heroin and cocaine seized on June 20, 2003, belonged to the defendant. The volume and packaging of the drugs seized, the absence of any drug consumption paraphernalia and the presence of the serialized “buy money” in the seat where the defendant last sat, furnished more than enough evidence to overwhelmingly establish the defendant’s guilt. As a result, there is no reasonable possibility that the alleged error could have contributed to the verdict, and the defendant is not entitled to a new trial on that basis. Gray, 867 A.2d at 571-72; Passmore, supra.

(B) Newly Discovered Evidence

Defendant next contends that, subsequent to his trial, he secured documentation from Verizon and the McCann Business School reflecting that he resided at 114 North Rebecca Avenue, Scranton, at the time of his arrest, such that the drugs seized at 336 North Main Street, Old Forge, could not have belonged to him. In order to secure a new trial on the basis of newly or after-discovered evidence, the defendant must prove by a preponderance of the evidence that: (1) the evidence has been discovered after trial and could not have been obtained prior to the conclusion of trial by the exercise of due diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for impeachment purposes; and (4) the evidence is of such a nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Figueroa, 859 A.2d 793, 799 (Pa. Super. 2004); Commonwealth v. Bormack, 827 A.2d 503, 506 (Pa. Super. 2003), app. denied, 577 Pa. 693, 845 A.2d 816 (2004).

During the post-trial hearing on December 27, 2004, the defendant produced a bill from Verizon dated February 10,2003. The Verizon bill merely demonstrates that telephone service at the North Rebecca Avenue address was discontinued on January 28, 2003. The Verizon exhibit does not reflect the status of any telephone service at 114 North Rebecca Avenue, Scranton, as of the date of the defendant’s arrest almost five months later on June 20.2003, nor is it otherwise probative of the defendant’s residence on that date. (T.P. 12/27/04, pp. 10-12,16-19; defendant’s post-trial exhibit no. 1.) In fact, the defendant conceded that, to his knowledge, there was no phone number for the North Rebecca Avenue address at the time of his arrest. (Id, p. 20.) As a consequence, the documentation obtained from Verizon is not of such a nature and character that a different verdict would likely result if this exhibit was introduced into evidence during a new trial.

Defendant claims that an application that he allegedly completed for the McCann Business School on June 5, 2003, similarly indicates his residence as 114 North Rebecca Avenue rather than 336 North Main Street. (T.P. 12/27/04, pp. 20-21.) However, the relevant inquiry at the time of trial was the defendant’s residence as of June 20.2003. The testimony established that Karlene Bassa-rath had resided at 114 North Rebecca Avenue, but had relocated with the defendant to 336 North Main Street by the time of his arrest. (T.P. 1/22/04, pp. 81,109,122.) Defendant himself admitted to the detectives on the date of his arrest that he was residing at 336 North Main Street. (Id., pp. 60-63, 79-81, 118-19, 122, 131.) Even the consent to search form signed by the defendant identifies his address as 336NorthMain Street. (Id., pp. 121,125,131.)

Therefore, the documentation obtained from, the McCann Business School is not of such a nature and character that a different verdict would likely result if it was admitted into evidence at a second trial. Moreover, the defendant has not articulated any legitimate reason why the Verizon and McCann Business School documents could not have been secured prior to his trial. Based upon the evidence presented during the post-trial hearing, the defendant has not demonstrated his right to a new trial on the basis of newly or after-discovered evidence. See Commonwealth v. Wright, 832 A.2d 1104, 1108 (Pa. Super. 2003).

(C) Validity of Consent To Search

Defendant also contends that his convictions should be set aside since “the evidence is irrefutable that the Commonwealth executed a consent to search only after the search was executed.” (Dkt. entry no. 94, p. 9.) During the trial, Detective Mazzoni testified that the consent to search form reflected the incorrect military time due to an apparent clerical error. Detective Mazzoni testified unequivocally that the consent to search form was unquestionably signed prior to the search being conducted. (T.P. 1/22/04, pp. 86-89, 125; T.P. 1/23/04, pp. 34-35, 37.) As the finder of fact, the jury was free to believe and accept Detective Mazzoni’s testimony regarding the temporal discrepancy indicated on the consent form, Snyder, 870 A.2d at 350, and the defendant is not entitled to a judgment of acquittal or a new trial on this basis. (T.P. 12/27/04, p. 48.)

(D) Sufficiency of Evidence

Finally, the defendant asserts that “the evidence was insufficient to establish possession with intent to deliver and [he] requests that the court dismiss the charges against him.” (Dkt. entry no. 94, p. 10.) When reviewing a sufficiency of the evidence claim, the court must view all of the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth as the verdict winner in order to determine whether the evidence was sufficient to enable the fact-finder to conclude that all of the elements of the offenses charged were established beyond a reasonable doubt. Commonwealth v. Roney, 866 A.2d 351, 356 (Pa. 2005). In making that determination, it is not the responsibility of the court “to judge a witness’ credibility, resolve conflicts in testimony, or weigh the evidence; these important tasks are left to the fact-finder.” Commonwealth v. Payne, 868 A.2d 1257, 1260 (Pa. Super. 2005). While passing on the credibility of witnesses and the weight of the evidence produced, the trier of fact is free to believe all, part or none of the evidence. Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super. 2005).

The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Snyder, 870 A.2d at 350. “Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.” Barnes, supra (quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), app. denied, 569 Pa. 716, 806 A.2d 858 (2002)). Thus, the court must simply determine “whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Payne, supra (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). (emphasis in original)

To uphold a conviction for PWID, the Commonwealth must prove beyond a reasonable doubt that the defendant possessed a controlled substance and did so with the intent to deliver it. Commonwealth v. Burkett, 830 A.2d 1034, 1038 (Pa. Super. 2003). If the drugs are not found on the defendant’s person and [s]he was not in actual possession of them, the Commonwealth must demonstrate constructive possession of the drugs through “proof of the ability to exercise conscious dominion over the substance, the power to control the contraband and the intent to exercise such control.” Commonwealth v. Petteway, 847 A.2d 713, 716 (Pa. Super. 2004). The intent to exercise conscious dominion may be inferred from the totality of the circumstances, Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa. Super. 2003), app. denied, 577 Pa. 705, 847 A.2d 1280 (2004), and circumstantial evidence may be used to establish a defendant’s possession of drugs. Commonwealth v. Jackson, 540 Pa. 556, 560-61, 659 A.2d 549, 551 (1995); Commonwealth v. McCoy, no. 03 CR 1178, Nealon, J., at p. 10 (Lacka. Cty. August 13, 2004), aff’d, 869 A.2d 10 (Pa. Super. 2004), reargument denied, (Feb. 9, 2005). The trier of fact may infer that the defendant intended to deliver a controlled substance based upon the facts and circumstances surrounding the case, such as the amount of the drug seized, the form of the drug, the particular method of packaging the drug, and the behavior of the defendant. Kirkland, 831 A.2d at 611; Commonwealth v. Drummond, 775 A.2d 849, 854 (Pa. Super. 2001), app. denied, 567 Pa. 756, 790 A.2d 1013 (2001).

In the case at hand, the evidence introduced by the Commonwealth established the defendant’s actual or constructive possession of 60 individual bags of heroin, 26 grams of crack cocaine and 5.2 grams of cocaine hydrochloride. The testimony also proved the absence of any paraphernalia associated with drug consumption and the presence of the serialized “buy money” in the car seat that was last occupied by the defendant. When coupled with an unemployed ex-convict’s possession of $1,092 in cash, the direct and circumstantial evidence was more than sufficient to support the defendant’s PWED conviction. See e.g., Commonwealth v. Conaway, 791 A.2d 359, 363 (Pa. Super. 2002) (evidence was sufficient to sustain PWID conviction since 60 baggies of crack cocaine were found in an apartment rented by the defendant and the police found no drug paraphernalia indicative of personal use); Commonwealth v. Torres, 421 Pa. Super. 233, 238, 617 A.2d 812, 814 (1992), app. denied, 535 Pa. 618, 629 A.2d 1379 (1993) (evidence was sufficient to support PWID conviction where defendant possessed 4.63 grams of cocaine in 17 individual packets, $236 in currency, and the arresting officer did not discover any drug paraphernalia commonly associated with consumption of cocaine). Although the defendant contends that it was improper for the narcotics detective to provide an opinion as to whether the drugs were intended for delivery as opposed to personal use (see dkt. entry no. 94, p. 12), Pa.R.E. 704 clearly permits such a duly qualified narcotics expert to express an opinion concerning a defendant’s intent to distribute drugs. See Commonwealth v. Johnson, 782 A.2d 1040, 1041 n.1 (Pa. Super. 2001) (declining to follow U.S. v. Watson, 260 F.3d 301, 310 (3d Cir. 2001)); Commonwealth v. Kelly, 103 Lacka. Jur. 1, 7-8 (2001) (same). Accordingly, the defendant’s sufficiency of the evidence challenge does not entitle him to post-trial relief in this matter.

ORDER

And now, March 11, 2005, upon consideration of the post-sentence motion of defendant Oscar Dargon, the memoranda of lav/ submitted by the parties, and the evidence and arguments offered during the hearing on December 27,2004, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that the post-sentence motion of defendant Oscar Dargon is denied.

      . The testimony revealed that Karlene Bassarath had previously resided at 114 N. Rebecca Avenue, Scranton, but had relocated to 336 N. Main Street, Old Forge, where she resided with the defendant following his release from prison on June 4,2003. (T.P. 1/22/04, pp. 81, 109, 122.)

      . Defendant had represented that if Ms. Bassarath were to be called as a witness, she would testify that the drugs seized did not belong to the defendant. Defense counsel expressed reservations regarding the proffered testimony of Ms. Bassarath since she had declined to speak to him prior to her testimony. (Id., pp. 52-57.) In order to confirm on the record that the defendant agreed with his counsel’s decision not to call Ms. Bassarath as a witness, and after Ms. Bassarath had consulted with her counsel, Ms. Bassarath answered the following questions from the court outside the presence of the juiy:
      “Q. And you know you’ve been sworn under oath to answer truthfully any questions that I pose to you. And the sole question that I have for you is, the drugs that were seized by the police in the house on June 20,2003, were those drugs yours or were they Oscar Dargon’s?
      “A. He gave them to them. They were his.
      “Q. They were Oscar Dargon’s?
      “A. Yes.
      “Q. They were not your drugs?
      “A. No.” {Id., p. 57.)
      Based upon Ms. Bassarath’s counseled testimony, the defendant concurred with his counsel’s decision not to call her as a witness. (Id., p. 65.)

      . Although the Crawford court stated that it would “leave for another day any effort to spell out a comprehensive definition of ‘testimonial’,” id. at 1374, it found that statements taken by police officers in the course of interrogations are testimonial in that a person who furnishes a formal statement to government officers “bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 1364. For purposes of the defendant’s post-trial motion, we will assume arguendo, albeit without expressly deciding, that the confidential informant’s statements to Detective Mazzoni constitute testimonial statements or evidence.

      . Although the Traía court suggested that the use of a cautionary instruction would further protect the defendant’s confrontation rights, id. at 544 (citing Tennessee v. Street, 471 U.S. 409, 411-12 (1985)), it noted that the trial court had not furnished such an instruction. Id. at 544-45. In the case at bar, the defendant did benefit from a limiting instruction advising the jury not to consider the truthfulness of the confidential informant’s statements since they were being offered for the sole purpose of explaining the detectives’ course of conduct.


source: Caselaw Access Project

author: JONES II, J.,

license: Public Domain

text:
    GMAC Insurance Companies v. Whitmore

      Jack Emas, for plaintiff.

      Edward J. Carreiro Jr., for defendants.
    January 7, 2005
   JONES II, J.,

— This opinion is submitted relative to defendants’, Carol Whitmore and Robert Whitmore, appeal of this court’s order dated October 18,2004, overruling preliminary objections to plaintiff’s amended complaint seeking to stay the instant action and order the parties to proceed to arbitration pursuant to the terms of the arbitration provision contained within the applicable policy of insurance.

BACKGROUND

GMAC Insurance Companies filed the instant action for declaratory relief and alleges as follows: Carol Whitmore had a policy of automobile insurance with GMAC, policy number ***_******* (Amended complaint ¶4.) On February 5, 2002, the insured Carol Whitmore’s daughter, Amy Whitmore, was involved in an accident in Bensalem Township, Bensalem, Bucks County, from which Amy Whitmore suffered fatal injuries. (Amended complaint ¶5.) The insurance policy which was in effect at the time of the subject accident provided for unstacked underinsured motorist policy limits in the amount of $100,000 per person/$300,000 per accident. (Id. ¶6.) Carol Whitmore and Robert Whitmore were designated as administratrix and administrator of the estate of Amy Whitmore. (Id. ¶7.) The estate of Amy Whitmore recovered monies from the primary tort-fea-sor and then sought underinsured motorist policy limits of $100,000 per person from GMAC. GMAC offered said limit. (Id. ¶8.) The Whitmores then sought insurance coverage pursuant to the underinsured motorist provisions of the same insurance policy alleging additional claims for $100,000 each, asserting they are entitled to the per person limits of $ 100,000 for their separate claims (Id. ¶9.) The Whitmores were neither involved nor present for the subject accident and did not sustain any injuries due to the incident. (Id. ¶10.) GMAC denied coverage claiming there was no applicable insurance coverage for the alleged claims of the Whitmores and, as a result, had no right to recovery. (Id. ¶20.)

GMAC filed the instant declaratory judgment action. Defendants filed preliminaiy objections to the complaint. In response to the preliminary objections, GMAC filed an amended complaint which was followed by preliminary objections seeking a stay of the instant action and order the matter to arbitration. The court, on October 18, 2004, overruled the preliminary objections and the instant appeal followed.

DISCUSSION

The issue on appeal is whether the court erred in ruling that the dispute between plaintiff and defendants did not fall within the ambit of the arbitration provision of the uninsured/underinsured coverage section of the Integon insurance policy. “Where a party to a civil action seeks to compel arbitration of that action, a two-part test is employed to determine if arbitration is required.” D & H Distributing Co. Inc. v. National Union Fire Insurance Co., 817 A.2d 1164, 1166 (Pa. Super. 2003), quoting Midomo Co. Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 186 (Pa. Super. 1999). First, the trial court must determine if a valid agreement to arbitrate exists between the parties. Id. Second, if the trial court determines that such an agreement does exist, it must then determine if the dispute involved is within the scope of the arbitration provision. Id. “The scope of arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.” Id. (quoting Henning v. State Farm Mutual Automobile Insurance Co., 795 A.2d 994 (Pa. Super. 2002)).

In examining the language of an insurance policy, this court is mindful that “while any ambiguities in an insurance contract will be resolved in favor of the insured, a court is required to give effect to clear and unambiguous language.” Estate of Higgins v. Washington Mutual Fire Insurance Co., 838 A.2d 778, 781 (Pa. Super. 2003) (quoting Coppola v. Insurance Placement Facility of Pa., 386 Pa. Super. 413, 417, 563 A.2d 134, 136 (1989)).

“Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable inteipretation when applied to a particular set of facts. We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. The polestar of our inquiry, therefore, is the language of the insurance policy.” Newhard v. Travelers Insurance Co., 831 A.2d 602, 605 (Pa. Super. 2003) (quoting Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999)).

The insurance policy at issue contains the following arbitration provision:

“Arbitration
“(A) If we and an insured disagree:
“(1) whether the insured is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle; or
“(2) as to the amount the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle.
“then either party may make a written demand for arbitration.
“However, disputes concerning coverage may not be arbitrated. ” (Exhibit “B” to plaintiff’s memorandum of law in opposition to defendants’ preliminary objections.) (emphasis added)

Under the terms of this arbitration provision, the scope of arbitration is limited to two issues: (1) whether the insured (Carol Whitmore) is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or underirisured motor vehicle or (2) as to the amount the insured (Carol Whitmore) is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle. The policy in question unequivocally states that disputes concerning coverage may not be arbitrated. The threshold issue in the case at bar is whether there is coverage for Carol Whitmore and Robert Whitmore’s separate and distinct claims to recover damages for wrongful death and survival under the Wrongful Death Act of Pennsylvania and the Pennsylvania Survivor Act. At this stage, the dispute before the court does not involve entitlement to, or amount of, damages alleged to have been occasioned by the accident. It is a dispute about coverage which may not be arbitrated. In light of the facts alleged in the amended complaint, this court finds that the subject matter of the lawsuit does not fall within the arbitration provision of the policy. Consequently, the instant dispute may not be remanded to arbitration at this time.

Defendants argue that the arbitration provision of the uninsured/underinsured coverage section does not define “coverage” and is per se ambiguous. Defendants rely upon Borgia v. Prudential Insurance Co., 561 Pa. 434, 750 A.2d 843 (2000). In Borgia, an automobile driven by Carmen Borgia Jr. was involved in an accident with another vehicle. Borgia obtained the policy limits covering that other vehicle. Having waived UIM coverage under his own State Farm policy, Borgia attempted to recover UIM benefits under the policy of insurance covering his father’s automobiles (with whom he was living at the time) issued by Prudential. Prudential filed an action for declaratory judgment seeking an order that Borgia was not a “covered person” under the language of the Prudential policy and therefore was not entitled to compel arbitration.

The then-existing Prudential policy language read as follows:

“If we (Prudential) and a covered person disagree on policy coverages or amounts payable, either party may make a written demand for arbitration.”

The Supreme Court held that the issue of whether the driver was a “covered person” who could demand arbitration was arbitrable. After reviewing the law governing disputes controlled by common-law arbitration, the Supreme Court determined that the arbitration clause at issue provided for arbitration of disputes concerning “policy coverage” and whether the claimant was a covered person under his parents’ policy was the essential matter to be resolved in order to dispose of the claim. See id. at 441, 750 A.2d at 847.

Defendants’ reliance on Borgia is misplaced. The arbitration clause in the policy issued to defendants herein is entirely different from the arbitration clause in the Borgia case. As demonstrated above, the arbitration clause herein limits the scope of arbitration to two concerns (1) whether the insured is legally entitled to recover damages from the owner or operator of an uninsured motorist vehicle or (2) as to the amount the insured is legally entitled to recover from the owner or operator of the underinsured motorist vehicle. However, disputes concerning coverage are specifically excluded therefrom.

Applying these contractual terms to the particular facts set forth in the amended complaint it is clear that such questions are reserved for the court.

Unlike Borgia, the issue herein is not whether the Whitmores are insureds under the policy legally entitled to recover damages from the owner or operator of an underinsured motorist vehicle. Indeed, GMAC concedes that the Whitmores and the insureds under the policy are entitled to recover uninsured motorist benefits. This is evident from the offer to pay the limits of the policy to the insured for the fatal injures sustained by their daughter. The question before this court is whether coverage exists separately and distinctly for the Whitmores, as parents of the deceased, arising from the death of their daughter when they suffered no injury and were not present at the time of the accident. Thus, even though the Whitmores are insureds under the Integon policy, they are nevertheless not entitled to demand arbitration, for the issue of coverage is reserved for the court.

The court finds the issue presented in Henning v. State Farm Mutual Automobile Insurance Co., 795 A.2d 994 (Pa. Super. 2002), to be more akin to the case at bar. In Henning, Edward R. Henning Jr., while driving a vehicle which he owned and which was insured with Progressive Insurance Company, was involved in an accident with an uninsured motorist. The accident was caused by an uninsured motorist and Progressive Insurance Company paid Henning the limits of the uninsured motorist benefits under his policy. Henning then sought uninsured motorist benefits under the policy of insurance issued by State Farm to his father, Edward R. Henning Sr. State Farm denied the claim for uninsured motorist benefits, citing the named driver exclusion pursuant to which Henning Sr. had specifically excluded his son, Henning Jr., from all coverage under his policy “for bodily injuiy, loss or damage under any of the coverages of the policy while any motor vehicle is operated by Henning Jr.”

State Farm filed a declaratory judgment action. In response, Henning filed preliminary objections requesting the court to dismiss the complaint and order the parties to arbitration. Similar to the policy at bar, the State Farm policy limited arbitration to two questions, fault and amount. After reviewing the State Farm arbitration provision, the court concluded that the arbitration provision was inapplicable since application of the named driver exclusion must be resolved in the declaratory judgment action.

In Henning, the arbitration provision was inapplicable because the declaratory judgment action sought resolution of whether an exclusion contained within the policy applied. Henning is instructive in this regard since the declaratory judgment action filed by GMAC seeks resolution of whether insured may make a claim for underinsured motorist benefits separately and distinctly under the wrongful death and survival statute. Similar to Henning, the arbitration provision in the GMAC policy is inapplicable because the dispute before the court is centered on whether coverage for such a claim exists. Based on the foregoing, the court overruled defendants’ preliminary obj ections.

CONCLUSION

For the foregoing reasons, the court respectfully submits that the order entered October 18,2004, overruling the preliminary objections of defendants, be affirmed.


author: JOHNSON, J,

text:
    Schafer v. Kacsur

      C.P. of Lehigh County,
    no. 2001-C-3441.

      Ronald R. Pellish, for plaintiffs.

      Dennis J. Morello, for defendants.
    October 29, 2004
   JOHNSON, J,

BACKGROUND

Before the court for disposition is plaintiffs’ motion for post-trial relief requesting a new trial. This motion was timely filed on June 18, 2004, after a 12-person jury returned a verdict on June 8, 2004, in favor of defendants. On July 9,2004, this court issued an order requiring plaintiffs’ brief to be filed by August 4,2004, and defendants’ brief in response to be filed by August 18, 2004. Plaintiffs’ brief was not filed until August 24, 2004, 20 days after the deadline. Defendants’ brief was filed timely and actually before plaintiffs’ brief on August 17,2004.

DISCUSSION

Notwithstanding the untimeliness of plaintiffs’ brief in support of their post-trial motions, plaintiffs’ motion has been entertained, argument was held and this decision follows.

1. Defense Expert Report Filed After Discovery Deadline

Plaintiffs first argue that “[t]he learned judge erred in allowing the defendant to present, at trial, the deposition testimony of Dr. Michael Brooks M.D., which deposition was taken on April 19, 2004.” Although plaintiffs’ post-trial motions fail to describe how the court erred in this decision, it appears that this motion is a resurrection of the motion in limine brought by plaintiffs prior to the start of the trial. Said motion in limine argued that the court should grant a new trial because the discovery deadline expired several months prior to plaintiffs’ counsel’s receipt of the expert report of Dr. Brooks; that he first received Dr. Brooks’ report on March 16,2004; and that the discovery deadline had been September of the previous year.

At the time plaintiffs’ counsel received the expert report of Dr. Brooks on March 16, 2004, trial was scheduled for April 26, 2004. Therefore he received the expert report approximately 40 days prior to trial. Plaintiffs’ counsel indicated that, in order to rebut that report, he would need to get another doctor of a similar discipline since Dr. Brooks expresses an opinion upon a review of the x-rays. Plaintiffs argue that, therefore, they are prejudiced by the lateness of the expert report from Dr. Brooks. However, while the court appreciates plaintiffs’ argument that court-imposed deadlines must be obeyed, a new trial will not be granted on the basis of plaintiffs’ first argument. Also, in prosecuting their case, plaintiffs decided what type of expert they needed. Although a plaintiff may offer rebuttal to a defense expert, these plaintiffs neither attempted to do so at trial nor did they request a continuance of the trial in order to do so.

On April 15,2003, the court entered a discovery order requiring defendants’ expert reports to be filed by September 19, 2003. No defense expert reports were filed by that date. Arbitration was then held on January 24, 2004. Prior to the arbitration, the plaintiffs had neither produced proof of their tort selection at the time of the subject accident, nor produced documentation of any claims for future loss of earnings and earnings capacity, notwithstanding the discovery requests of defendants. However, at arbitration, the plaintiffs made a claim that this injury caused the plaintiff to seek new employment and then, on January 27, 2004, the plaintiffs provided defendants with proof of full tort eligibility to defendants. Defendants argue that these two factors caused the defendants to investigate the cause of plaintiffs’ alleged injuries as, up until this time, the documentation presented by the plaintiffs to the defendants showed neither a breach of the limited tort threshold nor eligibility for noneconomic damages.

Defendants argue that, as a result of these two factors, defendants then obtained a report and opinion from Dr. Brooks, dated March 13,2004, and forwarded a copy of it to plaintiffs’ counsel on March 15,2004. Defense counsel received Dr. Brooks’ report on March 16, 2004. On April 7, 2004, the defendants filed a pretrial memorandum identifying Dr. Brooks as a damages witness. Also on April 7,2004, the deposition of plaintiffs’ expert, Brian K. Shablin M.D. was conducted.

It is key that plaintiffs received the report and opinion of Dr. Brooks prior to deposing their own expert. Specifically, plaintiffs had defendants’ expert report in their hands 22 days prior to deposing their own expert. Defense counsel had the opportunity, over 22 days, to review Dr. Brooks’ report with his own expert. Moreover, on April 19,2004, the videotaped trial deposition of defendants’ expert, Dr. Brooks, was conducted and was attended by plaintiffs’ counsel, who cross-examined Dr. Brooks at that time after having Dr. Brooks’ report for 34 days. Trial was scheduled for April 26,2004, but was continued to June 7, 2004, due to the granting of defendants’ motion to compel the plaintiff, Ray Schafer, to submit to an independent medical examination.

On June 3,2004, four days before the trial attachment date of June 7, 2004, plaintiffs filed a motion in limine to preclude the defendants’ expert testimony on the basis that defendants failed to submit an expert report within the discovery deadline set by the court. Thereafter on June 7, 2004, a conference was held at which said motion in limine was argued. The court denied said motion in limine, placing its reasons therefore on the record. (N.T., June 7, 2004, pp. 9-10.) Trial ensued.

In determining whether to allow an expert for whom a report was not submitted by the discovery deadline to testify, settled law requires that the court balance liberal allowance of a party to present its case against prejudice to the other party in failing to comply with the discovery deadline. Williams v. SEPTA, 741 A.2d 848 (Pa. Commw. 1999) (opining that the court must balance the facts of each case to determine prejudice to each party, with preclusion of testimony only to be applied where absolutely necessary); see also, Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986) (holding that despite noncompliance with the discovery rule, a witness should be permitted to testify where the other party was not prejudiced because it had knowledge of the substance of the challenged testimony); Green Construction Co. v. PennDOT, 164 Pa. Commw. 566, 584-86, 643 A.2d 1129, 1138-39 (1994), appeal denied, 543 Pa. 718, 672 A.2d 311 (1996) (affirming trial court’s denial of party’s objection to testimony of expert witness identified five days before trial where there was no bad faith or misrepresentation of the expert expected to testify); Kemp v. Qualls, 326 Pa. Super. 319, 473 A.2d 1369 (1984) (holding that no prejudice existed to preclude testimony where a party had 13 days before trial within which to investigate an expert’s background).

The deciding factor in this issue is the fact that plaintiffs’ counsel had the expert report of Dr. Brooks in his hands 22 days before deposing his own expert. Due to this fact, plaintiffs were not prejudiced by the submission of the defendants’ expert report after the discovery deadline. Plaintiffs had adequate time to digest the report of defendants’ expert and have their own expert review it and rebut it in his deposition testimony. Moreover, the Superior Court has approved the arguably “late” submission of expert reports as late as 13 days before trial. Here, Dr. Brooks’ expert report was received by plaintiffs 40 days before the initial trial date and 51 days before the ultimate trial date.

For these reasons, plaintiffs will not be granted a new trial on the basis of their first post-trial motion argument.

2. Defense Expert’s Opinions and Findings

Plaintiffs’ second argument is that “[t]he leamedjudge erred in overruling the objections of counsel for the plaintiff to the questions asked of Dr. Michael Brooks M.D., concerning his opinion about his findings and [their] relationship to the accident of December 29,1999, and the existence of trauma evidence on MRI films reviewed by Dr. Michael Brooks M.D.”

This argument was neither included within plaintiffs’ motion in limine submitted prior to trial, nor raised in any of the objections by plaintiffs in the trial. A careful review of the record reveals the following objections and rulings related to defendants’ expert testimony:

(1) Objection to the presentation of Dr. Brooks’ testimony for trial because the defendants submitted the expert report late, “and all other reasons that [plaintiffs’ counsel] gave in his motion in limine . . . .” Plaintiffs wanted to ensure it was noted that this objection was made at the time of the deposition of Dr. Brooks. (N.T., June 8, 2004, p. 29.) After due consideration, the court denied the motion in limine, as described above.

(2) Objection to the admission of the curriculum vitae of Dr. Brooks. (N.T., June 8,2004, p. 39.) The court sustained the objection.

(3) Objection to Dr. Brooks’ qualifications to render an opinion, based solely on the review of an MRI and x-rays, as to whether their findings are associated with any traumatic event, and in particular, this accident. (N.T., June 8, 2004, p. 54.) The court overruled the objection, indicating that this goes to the testimony’s weight and is, therefore, a question for the jury.

(4) Objection based on hearsay. (N.T., June 8, 2004, pp. 67-69.) Plaintiffs withdrew this objection.

(5) Objection to the admission of Dr. Brooks’ report to which he testified. (N.T., June 8, 2004, p. 74.) The court sustained the objection.

The court noted plaintiffs’ first objection for the record due to plaintiffs’ desire to make a record that the objection had been made at the deposition, although it merely was a restatement of plaintiffs’ motion in limine which the court had, prior to the trial objection, denied after argument.

Since plaintiffs’ first objection had been addressed in the motion in limine, plaintiffs’ third trial objection was really the only trial objection which the court overruled. We now address plaintiffs’ third trial objection. Defendants’ expert is a neuroradiologist. It is within the purview of his practice to read MRI films and draw conclusions from them. Defense argued, and we agree, that a neuroradiologist would typically not examine a patient, but would generally render an opinion based upon a review of the MRI and/or x-ray films alone. The issue of whether or not Dr. Brooks took a history from the plaintiff/patient or examined the plaintiff/patient goes to the weight of his testimony. In overruling the objection, the court indicated to plaintiffs’ counsel that he was free to argue to the jury that they should believe his expert instead of the defense expert because the defense expert did not take a history or examine the plaintiff/patient and plaintiffs’ expert did both.

The issues raised in plaintiffs’ second argument go to the weight of the evidence rather than the qualification of the expert to testify. (N.T., June 8, 2004, pp. 54-56.) Therefore, a new trial will not be granted on the basis of plaintiffs’ second argument.

3. & 4. Weight of the Evidence and Support of the Evidence

Plaintiffs’ third argument in support of a new trial is that “[t]he verdict of the jury was unsupported by the evidence presented in this case. The verdict of the jury finding that the harm suffered by the plaintiffs was not caused by the negligence of the defendant was unsupported by the evidence.” Plaintiffs’ fourth argument is that “[t]he verdict of the jury finding that the negligence of the defendant was not the cause of any harm to the plaintiff was against the weight of the evidence.” Plaintiffs’ third and fourth arguments will be taken for consideration together.

Plaintiffs base these arguments on the case of Andrews v. Jackson, 800 A.2d 959 (Pa. Super. 2002). There, the Superior Court held that, where there is no dispute that the defendant is negligent and both parties’ medical experts agree that the accident caused injuries to the plaintiff, the jury must find the defendant’s negligence was a substantial factor in bringing about at least some of the plaintiff’s injuries. Although there is no dispute that the defendants were negligent, in the instant case, the parties’ medical experts disagree about whether the accident caused injuries to the plaintiffs, which distinguishes the within case from Andrews. Id.

Plaintiffs suggest that the verdict here was so disproportionate to the evidence as to defy common sense and logic. We disagree. In their brief in support of their post-trial motions, plaintiffs list the medical evidence they produced at trial as (1) plaintiff’s testimony regarding the injuries he sustained and the medical care he received as a result of the motor vehicle accident; (2) the testimony of Dr. Brian K. Shablin regarding his examination, treatment, diagnosis and prognosis of the injuries sustained by plaintiff, the administration of medication, recommended physical therapy, recommended chiropractic treatment and physiatric consultation with Dr. Scott Naftulin; and (3) the records of Dr. Naftulin. The plaintiffs then indicate that the only evidence presented by the defendants was the deposition testimony of Dr. Brooks. This comparison by plaintiffs suggests that plaintiffs presented something more than only deposition testimony at trial, when, in reality, plaintiffs also presented only one deposition, that of Dr. Brian K. Shablin M.D. The records and other opinions listed by plaintiffs in their brief were testified to by Dr. Shablin and, contrary to plaintiffs’ inference, were not independently presented and are not exhibits in the case.

There was sufficient testimony presented at trial in this case to find in favor of the defendants. It is well-settled that the juiy must consider the credibility of the witnesses, both through what they say and how they say it. Stiegelmann v. Ackrnan, 351 Pa. 592, 598, 41 A.2d 679, 682 (1945); Kelly v. Prudential Insurance Company of America, 334 Pa. 143, 148, 6 A.2d 155, 157 (1939); Majczyk v. Oesch, 789 A.2d 717, 720 (Pa. Super. 2001). If they chose to believe the testimony of Dr. Brooks, his testimony would support their verdict for defendants. It may have been significant to the jury that plaintiffs’ expert testimony was presented by way of counsel reading the deposition into the record with an associate attorney reading Dr. Shablin’s portion from the witness stand, whereas, the defense expert was presented by way of videotaped deposition.

In the within case, the defense expert testified that the medical condition of the plaintiff did not have a specific association with the traumatic event of February 29,1999. (N.T., June 8, 2004, pp. 58-61.) The plaintiffs’ expert admitted that he did not know the cause of some of the plaintiff’s medical conditions. (N.T. June 7, 2002, pp. 159, 180-81, 182-83, 191.) Where the experts concede that the injury may have or could have been caused by the accident, the jury is justified in finding that the accident did not cause the injury. Majczyk, 789 A.2d at 721. In point of fact, the jury can determine that, although there was an injury, it is not compensable. Id. Therefore, a new trial will not be granted on the basis of plaintiffs’ third and fourth arguments.

CONCLUSION

For all of the above reasons, plaintiffs’ motion for post-trial relief requesting a new trial is hereby denied.

ORDER

And now, October 29, 2004, upon consideration of plaintiffs’ motion for post-trial relief requesting a new trial and after argument, it is ordered that said motion is denied, for the reasons set forth in the accompanying opinion.


author: CURRAN, Member,

text:
    Office of Disciplinary Counsel v. O’Neil

      Disciplinary Board Docket nos. 212 D.B. 2003 and 46 D.B. 2004.
    October 22, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CURRAN, Member,

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

I. HISTORY OF PROCEEDINGS

On December 23,2003, Office of Disciplinary Counsel filed a petition for discipline at no. 212 D.B. 2003 against respondent, Kenton R. O’Neil. The allegations contained in the petition concerned respondent’s failure to appear for an informal admonition before Chief Disciplinary Counsel. On March 23,2004, Office of Disciplinary Counsel filed a second petition for discipline against respondent at no. 46 D.B. 2004. The allegations contained in the petition concerned respondent’s neglect of a client matter, lack of diligence and lack of communication. Respondent did not file an answer to the petitions for discipline. By Disciplinary Board order of May 7,2004, the petitions were consolidated for disciplinary hearing.

A pre-hearing conference was held on May 12,2004, before Carol S. Mills McCarthy, Esquire, a member of Hearing Committee 4.15. Respondent appeared at the hearing and admitted the allegations of the petitions.

A disciplinary hearing was held on June 11,2004, before Hearing Committee 4.15 comprised of Chair Ronald H. Heck, Esquire, and Members Joseph E. Ahornare, Esquire and Carol S. Mills McCarthy, Esquire. Respondent did not appear at the hearing nor was he represented by counsel.

The Hearing Committee filed a report on August 8, 2004, finding that respondent violated the Rules of Professional Conduct as set forth in the petitions for discipline and recommending that he be suspended for a period of one year and one day.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of September 27, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinaiy Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Kenton R. O’Neil, was bom in 1967 and was admitted to the practice of law in Pennsylvania in 1992. His registration address is P.O. Box 538, Seneca, Venango County, Pennsylvania 16346.

(3) By order of the Supreme Court of Pennsylvania dated December 11, 2003, effective January 10, 2004, respondent was transferred to inactive status for failure to pay his annual attorney registration fee.

(4) As of the date of the disciplinary hearing, respondent remained on inactive status.

(5) Respondent has no prior record of discipline.

(6) Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

Charge at No. 212 D.B. 2003

(7) In accordance with Rules 208(a)(2) and (3), Pa.R.D.E., it was determined that respondent should receive an informal admonition with conditions as a result of misconduct involving his clients Robert H. Troj an and Dorothy M. McBride.

(8) By notice dated August 20,2003, respondent was directed to appear before Chief Disciplinary Counsel on September 30, 2003, at 10 a.m. to receive an informal admonition with conditions.

(9) Chief Disciplinary Counsel’s notice further informed respondent that, with regard to the conditions, respondent was to:

(a) At least five days prior to the date set for imposition of the informal admonition, provide to Disciplinary Counsel proof that he had delivered to Mr. Trojan the documents provided by Mr. Trojan to him for representation of the estate of Helen J. Trojan, and documents which were delivered to him by Mr. Trojan for purposes of doing estate planning. Further, he was to provide proof that he had refunded to Mr. Trojan the $500 retainer paid to him for his services, which was unearned.

(b) At least five days prior to the date set for imposition of the informal admonition, provide to Disciplinary Counsel proof that he had delivered to Ms. McBride the documents provided to him for the purposes of doing estate planning for Ms. McBride, and that he had refunded to her the $600 retainer, which was unearned.

(10) Chief Disciplinary Counsel’s notice to respondent also informed him that he had 20 days to demand as of right that a formal proceeding be instituted against him, and that, in the event of such a demand, he need not appear for the administration of the informal admonition.

(11) Chief Disciplinary Counsel’s notice, which was sent by certified mail, return receipt requested, to respondent’s registration address, was received by respondent on or about August 22, 2003.

(12) Respondent did not demand that a formal proceeding be initiated against him. Respondent is conclusively deemed to have violated the Rules of Professional Conduct set forth in Chief Disciplinary Counsel’s letter of August 20, 2003.

(13) Respondent failed to appear on September 30, 2003, for his scheduled informal admonition and failed to provide proof of his compliance with the conditions.

(14) By letter dated October 1, 2003, respondent was directed by Chief Disciplinary Counsel to provide good cause within 10 days for his failure to appear on September 30,2003.

(15) On October 28, 2003, respondent contacted the Office of Disciplinary Counsel and indicated that he had some health problems, but wished to reschedule the informal admonition.

(16) On November 7, 2003, by cover letters from respondent, petitioner received respondent’s compliance with the conditions to his informal admonition.

(17) By letter from Chief Disciplinary Counsel dated November 19, 2003, sent certified and first-class mail, respondent was informed that he was to appear before Chief Disciplinary Counsel for informal admonition on December 9,2003.

(18) Although the certified mail was returned as unclaimed, the first-class mail was not returned.

(19) Respondent never appeared for the imposition of the informal admonition on December 9, 2003.

Charge at No. 46 D.B. 2004

(20) In September 2001, Josephine M. Grohola attended a seminar on estate planning, given jointly by respondent and representatives of Metropolitan Life Insurance Company (Met Life).

(21) On October 12, 2001, Ms. Grohola met with respondent to discuss estate planning on her behalf, including the drafting of a living trust.

(22) On April 18,2002, Ms. Grohola met with respondent and retained him to draft a living trust for her.

(23) Ms. Grohola paid respondent $900.

(24) Respondent had not previously represented Ms. Grohola.

(25) Respondent did not communicate to Ms. Grohola the basis or rate of his fee in writing before or within a reasonable time after commencing the representation.

(26) At the meeting on April 18, 2002, Ms. Grohola told respondent it would take her some time to collect all the information she needed for respondent to prepare the living trust.

(27) By May 12,2003, Ms. Grohola had gathered the information for respondent.

(28) Starting on May 12,2003, until sometime in July 2003, Ms. Grohola called respondent’s office on numerous occasions, but there was no answer.

(29) On July 12,2003, Ms. Grohola contacted Melvin Roberts, a Met Life agent, who told her he would try to contact respondent and ask that respondent call her.

(30) Mr. Roberts called respondent about 10 times. On each occasion he left a message on respondent’s law office answering machine regarding Ms. Grohola.

(31) Respondent never contacted Ms. Grohola.

(32) By letter of inquiry dated October 28, 2003, Samuel F. Napoli of the Office of Disciplinary Counsel apprised respondent of the allegations of the complaint filed against him by Ms. Grohola.

(33) Respondent received the letter of inquiry by certified mail on November 5,2003.

(34) On November 6, 2003, Mr. Napoli telephoned respondent about the Grohola complaint.

(35) Respondent represented to Mr. Napoli that he would refund to Ms. Grohola the $900 she paid him.

(36) On November 13, 2003, Mr. Napoli again telephoned respondent, who told him that he would pay Ms. Grohola $900 by that day or the end of the week, at latest.

(37) Respondent never refunded Ms. Grohola’s money, nor did he communicate with her.

(38) Respondent appeared at the pre-hearing conference held on May 12, 2004.

(39) Respondent indicated he suffered from a mental disability and was under the care of a psychiatrist.

(40) The Hearing Committee gave respondent time to submit a doctor’s report prior to the disciplinary hearing but he did not do so.

(41) Respondent failed to appear at the disciplinary hearing on June 11, 2004. He received proper notice of the date and time of the hearing, and stated his awareness of the date and time of the hearing to petitioner’s counsel.

III. CONCLUSIONS OF LAW

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

Charge at No. 212 D.B. 2003

(1)Pa.R.D.E. 203(b)(2) — Willful failure to appear before Chief Disciplinary Counsel for an informal admonition is grounds for discipline.

Charge at No. 46 D.B. 2004

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

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

(3) R.P.C. 1 -5(b) — When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

(4) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

IV. DISCUSSION

This matter is before the board on consolidated petitions for discipline charging respondent with professional misconduct arising out of his failure to appear for an informal admonition and his client neglect. Respondent attended the pre-hearing conference and admitted the allegations contained in the petitions. Thereafter, respondent failed to appear at the disciplinary hearing and put forth no mitigating evidence in consideration of discipline.

Respondent’s history of involvement with the disciplinary system has been marked by his lack of communication regarding the charges against him. In the charge at no. 212 D.B. 2003, respondent was scheduled to appear for an informal admonition and failed to do so. He was given an opportunity to provide good cause for his non-appearance, contacted Disciplinary Counsel and indicated his desire to reschedule. Subsequent to this contact with Disciplinary Counsel, he failed to appear for the admonition. When the petitions for discipline were filed against him regarding these allegations, he failed to file an answer. Although respondent made an appearance at the pre-hearing conference, he failed to appear at the disciplinary hearing.

At the pre-hearing conference, respondent indicated that he was suffering from mental illness and receiving treatment from a psychiatrist. Respondent was given the opportunity to submit a doctor’s report concerning his condition, but he did not do so. The record from the pre-hearing conference is clear that respondent was urged by petitioner’s counsel to put forth evidence of his mental illness in order that it would be considered in mitigation of discipline. No such evidence was forthcoming, and the board thus has before it a record basically devoid of any explanation by respondent for his improper behavior. The charges against respondent are relatively minor in nature. However, in light of respondent’s unwillingness or inability to participate in the process to determine the consequences of his admitted misconduct, the board recommends that respondent be suspended for one year and one day. This will ensure that the public is protected until such time as respondent affirmatively demonstrates that, whatever the cause of his difficulty, he is fit to practice law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Kenton R. O’Neil, be suspended from the practice of law for a period of one year and one day.

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

Board Member Nordenberg did not participate in the September 27, 2004 adjudication.

ORDER

And now, December 22,2004, upon consideration of the report and recommendations of the Disciplinary Board dated October 22, 2004, it is hereby ordered that Kenton R. O’Neil be and he is suspended from the practice of law for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

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


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    Heck Family Partnership v. Accupac Acquisition Inc.

      Jeffrey A. Lutsky and Michael D. O ’Mara, for plaintiffs.

      William A. Harvey, Michael K. Coran and Janaki Catanzarite, for defendant.
    May 23, 2005
   JONES II, J.,

This dispute arises from the sale of a business and certain related assets. As part of the sale, the parties executed various agreements, including a purchase agreement and an escrow agreement. The escrow agreement contains an arbitration provision and the purchasing agreement does not. Plaintiffs have filed the instant preliminary objections seeking to compel defendant’s counterclaim to arbitration pursuant to the terms of the escrow agreement. In response, defendant has filed a cross-petition to stay arbitration. For the reasons discussed below, plaintiffs’ preliminary objections are sustained and defendant’s counterclaim is remanded to arbitration. Defendant’s cross-petition to stay arbitration is denied.

BACKGROUND

Plaintiffs are the former owners of Accupac Inc., a now dissolved Pennsylvania corporation that provided outsourced material purchasing, manufacturing and packaging services to the pharmaceutical and personal care industries in the United States. Plaintiffs entered into a purchase agreement with defendant Acquisition.

Pursuant to the terms of the purchase agreement, plaintiffs agreed to sell their business and certain related assets to defendant for approximately $30,000,000.

In addition to the purchase agreement, the parties also entered into an Indemnity Fund Escrow Account agreement (escrow agreement). Pursuant to the terms of the escrow agreement, defendant deposited $3 million in an escrow account. Absent timely receipt of a claim notice by defendant, the escrow funds were to be released to plaintiffs 18 months following the closing. The escrow agreement contains an arbitration provision.

On or about October 4, 2004, defendant submitted a claim notice to the escrow agent alleging plaintiffs breached certain representations and warranties made in connection with the sale of Accupac and that defendant’s damages exceeded the available amounts in the escrow agreement, and demanded release of the funds. In response, plaintiffs denied the allegations and objected to the release of the funds.

Plaintiffs subsequently filed a statement of claim with the AAA, seeking a declaration of entitlement to the release of the escrow money. Plaintiffs also commenced this action in equity seeking injunctive relief to prevent Acquisition from canceling plaintiffs’ shares of common stock and terminating plaintiffs’ entitlement to an appointed representative on Acquisition’s board of directors. On November 4, 2004, the court entered a stipulated order that protected plaintiffs’ interest as stockholders pending resolution of the parties’ disputes.

In response to the equity action, defendant filed a counterclaim against plaintiffs based on plaintiffs’ alleged misrepresentations and breaches contained within the purchase agreement. Thereafter, plaintiffs filed preliminary objections to defendant’s counterclaim on the ground that the parties’ claims and disputes are subject to a mandatory agreement to arbitrate.

DISCUSSION

The issue presented is whether the arbitration clause embodied in the escrow agreement should be enforced. Pennsylvania law “favors settlement of disputes by arbitration as a means of promoting swift and orderly disposition of claims.” School District of Philadelphia v. Livingston-Rosenwinkel P.C., 690 A.2d 1321, 1322-23 (Pa. Commw. 1997) (citing Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 662-63, 331 A.2d 184, 185 (1975)).

A court’s analysis of whether a claim is required to be arbitrated is limited. Our Superior Court has held:

“When one party to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision.” University Mechanical & Engineering Contractors Inc. v. Insurance Co. of North America, November term 2000, no. 1554 (October 28, 2002) (Sheppard, J.) (citing Midomo Co. Inc. v. Presbyterian Housing Development Co., 739 A.2d 180, 186 (Pa. Super. 1999) (quoting Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 283, 687 A.2d 1167, 1171 (1997))).

Thus, some determinations relating to whether a case should be arbitrated are to be made by the court, but others are to be resolved by an arbitrator. “The question of whether the parties agreed to arbitrate, commonly referred to as ‘substantive arbitrability,’ is generally one for the courts and not for the arbitrators.... On the other hand, resolution of procedural questions, including whether the invocation of arbitration was proper or timely is left to the arbitrator.” Ross Development Co. v. Advanced Building Development Inc., 803 A.2d 194, 196 (Pa. Super. 2002).

For matters of substantive arbitrability, a court must apply two principles: “(1) arbitration agreements are to be strictly construed and not extended by implication; and (2) when parties have agreed to arbitrate in a clear and unmistakable manner, every reasonable effort should be made to favor the agreement unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute.” Midomo, 739 A.2d at 190. To apply both rules, the court should employ the rules of contractual construction, “adopting an interpretation that gives paramount importance to the intent of the parties and ascribes the most reasonable, probable, and natural conduct to the parties.” Midomo at 190-91.

Here, there are two agreements at issue — the purchasing agreement and the escrow agreement — but only the escrow agreement contains an arbitration clause. After reviewing the purchase agreement and the escrow agreement as well as taking into consideration the parties’ respective positions, this court finds that the defendant’s counterclaim should be remanded to arbitration.

The first issue that must be resolved in determining whether defendant’s counterclaim is subject to arbitration is whether the purchase agreement and the escrow agreement are interrelated and interdependent or independent agreements. It is a general rule of contract law that, where two writings are executed at the same time and are intertwined by the same subject matter, they should be construed together and interpreted as a whole. There is not “any requirement that a contract be evidenced by a single instrument” and “[i]f contracting parties choose, they may express their agreement in one or more writings and, in such circumstances, the several documents are to be'interpreted together, each one contributing (to the extent of its worth) to the ascertainment of the true intent of the parties.” International Milling Co. v. Hachmeister Inc., 380 Pa. 407, 417-18, 110 A.2d 186, 191 (1955). (citation omitted)

A review of the two contractual instruments here, the purchase agreement and the escrow agreement, illustrates that the two agreements form a single unified expression of the dealings between the parties. The escrow agreement specifically refers back to the purchase agreement. (See escrow agreement recital and ¶4.) The recital to the escrow agreement also specifically provides that terms used but not defined in the agreement (escrow) shall have the meanings given them in the purchase agreement. (Escrow agreement ¶1, recital.) Additionally, the terms of the escrow agreement also provide that the purchase agreement shall govern and control in the event of any inconsistency or conflict with the escrow agreement. (Escrow agreement, p. 2, ¶1.) Notably, section 11(c) of the purchase agreement states that the purchase agreement and the escrow agreement constitute the entire agreement among the parties. (Purchase agreement ¶65 section 11(c).)

The interdependence and interrelation between the two agreements can also be illustrated by the fact that the escrow agreement exists solely because of the purchase agreement. Indeed, a form of the escrow agreement to be adopted by the contracting parties was attached as an exhibit to the purchase agreement. All these factors lead this court to conclude that the two agreements concern a single transaction and that they must be read together in determining the intention of the parties. As such, the court concludes that a valid agreement to arbitrate exists between the parties.

The court is now left to decide whether the instant dispute falls within the scope of the arbitration provision. The escrow agreement’s arbitration clause provides:

“Any controversy or claim arising out of or relating to this agreement, or the breach hereof, or any unilateral disbursement request or claim notice, shall be settled by arbitration in accordance with commercial rules of the American Arbitration Association. Arbitration proceedings conducted pursuant to this paragraph 22 shall be held in Philadelphia.” (Escrow agreement ¶22.)

Defendant’s counterclaim purports to allege claims for fraud and breach of contract and seeks declaratory relief since plaintiffs breached representations and warranties contained within the purchase agreement. The parties anticipated the likelihood of a breach and executed the escrow agreement, which required defendant to place in escrow the sum of $3,000,000 of the purchase price for the purpose of securing plaintiffs’ obligations under section 9(b) of the purchase agreement. (Escrow agreement recitals (a).) Section 9 of the purchase agreement provides the remedies available for breaches arising from the purchase agreement. Section 9(b) obligates the shareholders, HFP and MPLP, to indemnify defendant for any breach, violation or misrepresentation of any shareholders, HFP and MPLP, contained within the purchase agreement, schedule or exhibit or in any document to be delivered at closing. (Purchase agreement t9(b) p. 60.)

The escrow agreement sets forth the procedure to be followed in the event a dispute arises as to whether a disbursement should be made from the escrow fund. (Escrow agreement ¶4()>).) According to the escrow agreement, in the event of a dispute, a disbursement shall not occur until (1) the representative accepts such disbursement or (2) until there has been a delivery of a written notice of final determination of the amount of such adverse consequences. Id. Final determination is defined as an award determined by the arbitrator, pursuant to section 23 [sic] which sets forth the amount of the adverse consequence to be satisfied by the disbursement from the escrow fund as finally determined in accordance with section 9(b) of the purchase agreement. (Escrow agreement ¶4(1).) Section 9(b) also sets out in detail the remedies available to the parties, including limitations on liability depending upon the nature of the claim. Section 9(g) of the purchase agreement also sets out in detail the method in which the indemnity claim should be satisfied; the escrow funds inability to fully satisfy any indemnity sum was also taken into consideration.

The escrow agreement’s arbitration clause provides that any controversy or claim arising out of or relating to this agreement, or the breach hereof, or any unilateral disbursement request or claim notice, shall be settled by arbitration in accordance with commercial rules of the American Arbitration Association. Defendant’s counterclaim pertains directly to alleged misrepresentations made by the shareholders, HFP or MPLP, which are contained in sections 3 and 4 of the purchase agreement. The escrow fund was created purposefully to secure plaintiffs ’ indemnification obligations arising as a result of misrepresentations made by plaintiffs. (See purchase agreement 19(b).) Since defendant’s counterclaim involves a controversy or claim arising from a unilateral disbursement request and claim notice, since the disbursement request arises from transactional misrepresentations for which a remedy is provided by section 9(b), and since the escrow fund was created to secure obligations pursuant to section 9(b), the court finds that defendant’s counterclaim falls within the scope of the arbitration provision contained within the escrow agreement.

In reaching this conclusion the court does not find defendant’s reliance upon paragraph 11 (o), submission of jurisdiction, which gives exclusive jurisdiction to decide disputes to state or federal courts in Philadelphia, Pennsylvania, persuasive. The court finds this provision to be jurisdictional in nature which does not foreclose the use of arbitration as an alternative dispute mechanism.

Defendant also argues that the arbitrator has no authority to determine defendant’s claims or plaintiffs’ claims since it is possible that the claims could have been asserted after the escrow account had been liquidated and since the escrow funds are not the sole source of recovery. The court does not agree. Paragraph 17 of the escrow agreement states that the agreement (escrow) shall terminate the earlier of the date that no funds remain in the escrow account, the distribution of the entire escrow account pursuant to section 4 of the escrow agreement and the mutual written consent of the parties. (Escrow agreement ¶17 p. 7.) Excluded from this provision is paragraph 22, the arbitration provision. Thus, the arbitration provision of the escrow agreement will survive even if no funds remain in the escrow account. This provision lends further support to the court’s conclusion that defendant’s counterclaim is subject to arbitration.

CONCLUSION

For the foregoing reasons, plaintiffs’ preliminary objections are sustained. Defendant’s counterclaims are remanded to arbitration and this matter is stayed pending the completion of arbitration. Defendant’s cross-petition to stay arbitration is denied. An order consistent with this opinion will follow.

      . Plaintiffs instituted the instant proceeding pursuant to paragraph 22(c) of the escrow agreement.

      . This inquiry is necessary since the purchase agreement does not contain an arbitration provision. Thus, it is necessary to resolve the question of whether the agreements are interdependent and interrelated in order to determine whether any breaches resulting from the purchase agreement are subject to arbitration.

      . The court does not find any inconsistency or conflict between the purchase agreement and the escrow agreement.

      . Specifically, defendant alleges that plaintiffs made misrepresentations concerning wage and hour compliance with immigration laws, concerning title to certain personal property, concerning the condition of certain machinery, concerning the ability to fulfill customer orders, concerning the shareholders’ role in management of the company, and that plaintiffs have failed to honor their indemnification obligations regarding third-party claims.

      . Adverse consequences is defined in the purchasing agreement as all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and expenses and any other cost of enforcing a party’s rights under this agreement. (Purchase agreement, definitions p. 2.)