author: CULLEN, J,

text:
    Hoberg v. Smith

      Marc F. Greenfield, for plaintiff.

      Jeffrey T. McGuire, for defendant Smith.

      Kevin E. Osborne, for defendant Hertz Corp.
    May 26, 2005
   CULLEN, J,

In his motion for summary judgment, defendant, Brian W. Smith, seeks dismissal of this action on the ground that plaintiff, Paula Hoberg, failed to make a prompt, good faith effort to effectuate service so that her claim is barred by the statute of limitations.

Based on the record before it and the arguments of counsel, the court concludes that defendant’s position is correct. Accordingly, Ms motion for summary judgment will be granted.

PROCEDURAL AND FACTUAL BACKGROUND

On May 9, 1998, plaintiff sustained personal injuries as a result of a collision at the intersection of Plum and Ross Streets in the City of Lancaster between her vehicle and one operated by defendant. Defendant had rented the vehicle he was operating from Hertz Corporation.

On May 3, 2000, plaintiff commenced this action by filing a complaint against both defendant and Hertz Corporation.

On May 10, 2000, plaintiff attempted to serve defendant by certified mail, pursuant to Pa.R.C.P. 404, at defendant’s address listed on the complaint and the police accident report. The envelope was returned to plaintiff by the United States Postal Service marked “unclaimed.”

On May 19, 2000, the Sheriff of Allegheny County served Hertz Corporation in care of Hertz Claim Management, 11 Parkway Center, Pittsburgh, Pennsylvania, the address listed on the complaint.

On June 20,2000, Hertz Corporation filed and served its answer. In its answer, Hertz Corporation denied defendant was its agent, servant, workman or employee and asserted that defendant was a renter of the vehicle involved in the accident. The answer also contained a new matter cross claim against defendant.

On August 3, 2000, plaintiff filed a praecipe to reinstate her complaint.

On August 24, 2000, pursuant to plaintiff’s direction to serve defendant in care of Hertz Claim Management, 11 Parkway Center, Pittsburgh, Pennsylvania, the Sheriff of Allegheny County delivered a copy of the complaint to Bill Findle, manager, at that location.

The docket reflects no further activity with respect to the action against defendant, and counsel refer to none in their briefs, until May 28,2002, when defendant filed preliminary objections alleging improper service of the complaint. Plaintiff filed a response to the preliminary objections on June 25, 2002. The parties filed briefs in support of their respective positions, and the matter was thereafter referred to the court for disposition.

On September 24, 2002, the court entered an order sustaining the preliminary objections and striking service of the complaint. Plaintiff was given leave to attempt to effect valid service.

On October 24,2002, plaintiff filed a motion for substituted service, and the court entered a rule on defendant to show cause why the relief requested should not be granted.

Defendant filed a reply to the motion and a brief on December 16, 2002.

In December 2003, the court held a conference with counsel, at which time the parties agreed that defendant’s counsel would accept service without waiving his defense of the statute of limitations, and plaintiff’s motion would be dismissed as moot. An order to this effect was entered on December 18, 2003.

The complaint was reinstated on December 26,2003, and defendant’s counsel accepted service on January 26, 2004.

On May 17,2004, defendant filed an answer with new matter in which he raised the statute of limitations as an affirmative defense. Plaintiff’s reply to new matter was filed on July 29, 2004.

On October 5, 2004, defendant filed his motion for summary judgment together with a supporting brief. Plaintiff filed a response to the motion and a brief, and the court heard oral argument on January 20, 2005.

DISCUSSION

Pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after the pleadings are closed any party may move for summary judgment where (1) there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) after completion of discovery, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury. Pa.R.C.P. 1035.2.

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). (citation omitted) “If the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law.” Id. (citing Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

A material fact is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones Inc., 756 A.2d 697 (Pa. Super. 2000).

A court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992).

The purpose of the summary judgment procedure is to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). The court is to ignore controverted facts contained in the pleadings and restrict its consideration to material filed in support of and in opposition to the motion for summary judgment and the uncontroverted allegations of the pleadings. Id.; Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986).

Once a motion for summary judgment is made and properly supported, the opposing party cannot rest on the allegations or denials in the pleadings, but must file a response identifying evidence in the record controverting the evidence cited in support of the motion or establishing facts essential to the cause of action or defense which the motion cites as not having been produced. Pa.R.C.P. 1035.3; Rapagnani v. Judas Company, 736 A.2d 666 (Pa. Super. 1999).

This case presents another of the seemingly endless variations which require application of the principles enunciated in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and its progeny. The question, as always, is whether plaintiff stalled in its tracks the legal machinery she set in motion by failing to make good faith efforts to notify defendant of this suit by effectuating service of the complaint promptly.

An action to recover damages for personal injuries caused by the negligence of another must be commenced within two years of the date of the event giving rise to the claim. 42 Pa.C.S. §5524(2). Plaintiff’s cause of action arose on May 9, 1998, and the complaint was filed on May 3, 2000, within the two-year period. However, this is only the first of two requirements for commencing suit.

“The mere filing of a praecipe for a writ of summons, without additional affirmative action to effect service of the writ, does not constitute a good faith effort to notify a defendant that he is being sued, and therefore is not sufficient to toll the statute of limitations and preserve a cause of action.” Cahill v. Schults, 434 Pa. Super. 332, 336, 643 A.2d 121, 123 (1994) (quoting Feher by Feher v. Altman, 357 Pa. Super. 50, 53, 515 A.2d 317, 318 (1986)).

In addition to filing the praecipe for writ of summons or complaint within the applicable period, the plaintiff must make a good faith effort to notify the defendant of the action by promptly effecting service. Whether the plaintiff has made such a good faith effort is a matter within the discretion of the trial court. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986). It is the plaintiff’s burden to demonstrate that his efforts to effect service were reasonable. Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 658 A.2d 423 (1995); Cahill v. Schults, 434 Pa. Super. 332, 643 A.2d 121 (1994). Plaintiff’s conduct need not constitute bad faith or an overt attempt to delay in order to be found in violation of the requirements of Lamp; simple neglect and mistake to fulfill the responsibility to see that the requirements for service are met may be sufficient. Ferrara v. Hoover, 431 Pa. Super. 407, 636 A.2d 1151 (1994). The issue of the plaintiff’s good faith effort to notify the defendant of the institution of the lawsuit is to be assessed on a case-by-case basis. Leidich v. Franklin, 394 Pa. Super. 302, 575 A.2d 914 (1990).

In this case, the focus of the inquiry is on the period between the filing of the complaint on May 3,2000, and the filing of defendant’s preliminary objections on May 28, 2002.

Plaintiff initially sought to serve defendant at his residence in Moorpark, California, as listed on the police accident report. This was done on May 10, 2000. Approximately June 27,2000, the letter was returned marked “unclaimed.”

There is nothing in the record to suggest that at this point plaintiff made any effort to confirm defendant’s address through postal authorities, directory assistance, inquiry of the department of motor vehicles, voter registration, or any other type of inquiry. Plaintiff made no further attempt to serve defendant in California using any of the other methods provided by Pa.R.C.P. 404.

On June 20,2000, Hertz Corporation filed and served its answer in which it denied defendant was its agent, servant, workman or employee. Hertz Corporation went on to state that defendant was the renter of the vehicle in question. This response is consistent with the information provided on the police accident report which lists Hertz Corporation as the owner of the vehicle and the owner’s address as Philadelphia International Airport. At a minimum, this response would put plaintiff on notice that she could not simply assume defendant was an employee of Hertz Corporation.

Nonetheless, and without further inquiry or investigation, plaintiff forwarded a sheriff’s service form to the Sheriff of Lancaster County with a direction to serve defendant “c/o Hertz Claim Management” in Pittsburgh, Pennsylvania. On August 24, 2000, the Sheriff of Allegheny County delivered a copy of the complaint to Bill Findie, who apparently was the manager of the Hertz Claim Management office in Pittsburgh.

The docket reflects no activity by plaintiff or by defendant until defendant filed preliminary objections challenging service on May 28, 2002. Plaintiff has not asserted in her response to the motion for summary judgment that there was any contact or attempted contact with defendant, or any attempts to conduct discovery during this period. The court concludes, therefore, that the case was completely dormant.

Plaintiff is adamant that she actually served defendant on August 24, 2000, and, accordingly, the Lamp analysis is completely unnecessary. The court must conclude, however, based on the record, that plaintiff has shown insufficient evidence of a good faith or reasonable belief that service upon defendant in care of Hertz Claim Management would be effective. Therefore, plaintiff has failed to toll the statute of limitations.

Plaintiff is correct that, absent fraud, the sheriff’s return is conclusive and immune from attack with respect to matters of which the sheriff presumptively has personal knowledge. Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). The rule is inapplicable with respect to matters based upon information obtained by hearsay or statements of third persons. Id. For example, statements that service was made on a particular date at a specific location, or a return of no service, would be conclusive, while statements as to the relationship to the defendant of the person served, or that the location where service was made was the defendant’s residence or usual place of business would not be.

Contrary to plaintiff’s argument, the sheriff’s return cannot be said to establish that Mr. Findle was the manager of defendant or that he had any connection to defendant whatsoever. The most that may be inferred from the sheriff’s return is that Mr. Findle was the manager of the office of the co-defendant, Hertz Corporation.

Since there is no serious claim that the location where service was made was defendant’s residence, service could only be effected if Hertz Claim Management was defendant’s office or usual place of business. Pa.R.C.P. 402(a). The record simply does not support such a conclusion.

Although plaintiff says repeatedly that she believed defendant was an employee of co-defendant Hertz Corporation, there is a dearth of factual support for such a claim. Bald allegations are insufficient to create a genuine issue of material fact so as to defeat a motion for summary judgment. Golaschevsky v. Commonwealth of Pennsylvania, Department of Environmental Resources, 683 A.2d 1299 (Pa. Commw. 1996), aff’d, 554 Pa. 157, 720 A.2d 757 (1998). Not only does plaintiff fail to point to facts which would establish that the Hertz Claim Management office in Pittsburgh, Pennsylvania, was defendant’s office or usual place of business, but the facts of record lead to a contrary conclusion.

Defendant resided in Moorpark, California, where plaintiff initiated and subsequently abandoned efforts to obtain service after one attempt by mail. Defendant was driving a vehicle owned by Hertz Corporation, which had an address on the police accident report of the Philadelphia International Airport, not Pittsburgh, Pennsylvania. From these facts, one could reasonably infer that defendant rented a vehicle from Hertz Corporation at the Philadelphia Airport. Further support for such an inference, or at least notice to inquire further, would come from the answer of Hertz Corporation denying that defendant was its employee and stating that he merely rented the vehicle.

The foregoing facts would be known to plaintiff prior to her attempt to serve defendant in care of Hertz Claim Management in Pittsburgh, Pennsylvania. The only fact, as opposed to unsubstantiated statements of belief, which might support the conclusion that defendant could be an employee of co-defendant Hertz Corporation was that he was driving a vehicle owned by the co-defendant. However, since the co-defendant is in the business of leasing motor vehicles, this fact alone under the circumstances cannot serve to establish a good faith, reasonable belief that defendant was employed by Hertz Corporation.

The factors cited above, together with the absence in plaintiff’s response of any reference to any investigation to determine defendant’s place of employment, demonstrate that plaintiff had no good faith, reasonable belief that defendant was an employee of Hertz Corporation. Accordingly, Hertz Claim Management in Pittsburgh, Pennsylvania, was not defendant’s office or usual place of business for purposes of service of process pursuant to Pa.R.C.P. 402(a), and service at that location was totally ineffective. While plaintiff would have no rational reason to intentionally attempt service at the wrong location, her failure to conduct an even minimally adequate investigation has the same effect. Ferrara v. Hoover, 431 Pa. Super. 407, 636 A.2d 1151 (1994). Plaintiff simply made no good faith effort to notify defendant of this litigation by effecting proper service between the time of her failed attempt to serve defendant at his residence in California in May 2000, and the preparation for the motion for substituted service in July 2002.

Plaintiff’s failure to make a good faith effort to notify defendant of the pendency of her suit by promptly and properly serving him with a copy of the complaint served to stall the legal machinery she initiated. She has failed to comply with the legal requirements to toll the statute of limitations and preserve her cause of action, and defendant is entitled to judgment in his favor.

ORDER

And now, May 26, 2005, upon consideration of the motion of defendant, Brian W. Smith, for summary judgment, and the response of plaintiff, Paula Hoberg, and the arguments of the parties, the court orders that the motion is granted and plaintiff’s complaint is dismissed with prejudice.

      . Defendant Brian W. Smith’s reply to plaintiff’s brief in opposition of motion for summary judgment, exhibit C. Exhibit C lists defendant’s address as 4722 Penrose Avenue, Moorpark, California. The complaint and plaintiff’s cover letter and envelope, memorandum of law in support of plaintiff’s response to defendant, Brian Smith’s motion for summary judgment, exhibits A and B, identify defendant’s address as 4722 Pedrose Avenue, Moorpark, California. The record does not indicate if there is both a Penrose Avenue and a Pedrose Avenue in Moorpark, California.

      . The address listed on the police accident report for Hertz Corporation is Philadelphia International Airport, Philadelphia, Pennsylvania.

      . Answer with new matter of defendant Hertz Corporation to plaintiff’s complaint, ¶¶2, 3.

      . Memorandum of law in support of plaintiff’s response to defendant, Brian Smith’s motion for summary judgment, exhibit D.

      . After the filing of defendant’s reply and brief on December 16, 2002, neither party filed a praecipe to have the matter assigned to the court for disposition, and the prothonotary did not forward it to the court on his own initiative. The court, therefore, was unaware that a reply had been filed and that the matter was at issue until December 2003, when the court’s secretary, in the process of reviewing cases in which orders had been entered, found a reference to the rule entered in response to the motion for substituted service. The court requested the file from the prothonotary to detennine if the rule had been answered, if the matter had been addressed by another judge, or even if the case was still pending. It was at this point the court discovered that the matter had been dormant for a year and immediately scheduled a conference with counsel to decide how to proceed.

      . On September 20, 2004, Hertz Corporation filed a motion for summary judgment. Plaintiff informed the court that she would not file a response opposing the motion, and, on January 6,2005, the court granted the motion and entered judgment in favor of Hertz Corporation.

      . Although Lamp and perhaps the majority of cases decided since involve an action commenced by the filing of a praecipe for writ of summons, the same principles apply if a complaint is used as original process. Cahill v. Schults, 434 Pa. Super. 332, 643 A.2d 121 (1994).

      . The notation on the envelope that the mail was “unclaimed” would not by itself warrant the conclusion that the address was invalid. It would suggest only that defendant did not pick up the certified letter.

      . Plaintiff has attached as an exhibit a cover letter dated Tune 27, 2000, addressed to the prothonotary of Lancaster County. Memorandum of law in support of plaintiff’s response to defendant, Brian Smith’s motion for summary judgment, exhibit C. The sheriff’s service form which is attached as exhibit D had the date of June 27, 2000, crossed out and August 3,2000, written next to it. The docket also reflects that the complaint was reinstated on August 3, 2000. The reason for this discrepency in dates, as well as the reason for the reference to the Montgomery County Sheriff at the bottom of exhibit C, does not appear in the record.

      . This was certainly envisioned by plaintiff since she referred to defendant as, inter alia, a lessee of co-defendant Hertz Corporation in her complaint.

      . The court finds no merit to plaintiff’s statement that it is not unusual to obtain service upon a driver of an automobile at the owner of the vehicle’s location, residence, or place of business. This may be true if an adequate investigation shows service may be made at such a location as, for example, in the case of a young driver driving a parent’s vehicle, a spouse driving the vehicle of the other spouse, or an employee driving a clearly identified commercial vehicle. Such service is not effective if it fails to conform to the Rules of Civil Procedure.

      . There are two other points which merit brief comment. Defendant’s reliance on Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001) (plurality) for the proposition that plaintiff must immediately and continually reissue process until service is made is misplaced. Witherspoon did not represent the view of the majority of the Supreme Court on this point and, therefore, did not effect a change in the law. Parr v. Roman, 822 A.2d 78 (Pa. Super. 2003). Second, a hearing on the question of plaintiff’s good faith efforts is not warranted. Unlike the situation in Parr, where the moving party sought judgment on the pleadings, defendant in this case filed a motion for summary judgment which provided plaintiff the opportunity to indicate, by affidavit or otherwise, the existence of material issues of fact which would require a hearing or trial.


source: Caselaw Access Project

author: WETTICK, A.J.,

license: Public Domain

text:
    Vaughn v. Drab

      Paul J. Staub Jr., for plaintiff.

      George A. Miller, for defendant.
    May 25, 2005
   WETTICK, A.J.,

Defendants’ motion for summary judgment is the subject of this opinion and order of court. This motion raises, inter alia, the issue of whether a court will enforce the provisions in a Standard Agreement for the Sale of Real Estate form, copyrighted by the Pennsylvania Association of Realtors, waiving the protections afforded a buyer under the Real Estate Seller Disclosure Law, 68 Pa.C.S. §7301 et seq.

The Disclosure Law governs only residential real estate transfers. 68 Pa.C.S. §73Q2(a). Subsection 7304(a) provides for the State Real Estate Commission to promulgate a form of property disclosure statement calling for disclosure with respect to all of the following subjects:

“(b)(1) Seller’s expertise in contracting, engineering, architecture or other areas related to the construction and conditions of the property and its improvements.
“(2) When the property was last occupied by the seller.
“(3) Roof.
“(4) Basements and crawl spaces.
“(5) Termites/wood destroying insects, dry rot and pests.
“(6) Structural problems.
“(7) Additions, remodeling and structural changes to the property.
“(8) Water and sewage systems or service.
“(9) Plumbing system.
“(10) Heating and air conditioning.
“(11) Electrical system.
“(12) Other equipment and appliances included in the sale.
“(13) Soils, drainage and boundaries.
“(14) Presence of hazardous substances.
“(15) Condominiums and other homeowners associations.
“(16) Legal issues affecting title or that would interfere with use and enjoyment of the property.”

The Disclosure Law provides that a seller shall disclose to the buyer any material defects with the property known to the seller by completing all applicable items in the property disclosure statement promulgated by the Real Estate Commission, and that the statement shall be delivered to the buyer prior to the signing of an agreement to transfer the property. 68 Pa.C.S. §7303. The Disclosure Law also provides that any seller who willfully or negligently violates or fails to perform any duty prescribed by this law “shall be liable in the amount of actual damages suffered by the buyer as a result of a violation of this chapter.” 68 Pa.C.S. §7311 (a).

In this case, in Count II of his amended complaint, plaintiff has brought a claim to recover damages under section 7311(a) based on the following allegations: Before signing the agreement, plaintiff asked both sellers if they were aware of any problems with the septic and/or water supply system. They said there were no problems with either system. (Amended complaint ¶¶7-9.) In the Seller Disclosure Statement, the sellers stated that they were not aware of any leaks, backups, or other problems relating to any of the plumbing, water, and sewage-related items. (Amended complaint, exhibit A at 10, ¶8(|1).) Within 30 days after moving in, plaintiff became aware of problems with the septic system. (Amended complaint^fM.) These were problems that existed and had to be known to the sellers prior to their signing the Seller Disclosure Statement. (Amended complaint ¶¶10-11,28-30, 33.)

Defendants contend that plaintiff may not raise any claims, including claims under section 7311(a) of the Disclosure Law, that are based on allegations that plaintiff relied on statements in the Seller Disclosure Statement because the standard agreement contained an integration clause which provided that the sales agreement “contains the whole agreement between seller and buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale.” (Amended complaint, exhibit A at 7, ¶26^).) I find no merit to this argument because section 7311(a) creates a statutory cause of action that supplements the protections afforded buyers of residential property under contract and tort law.

Prior to the enactment of the Disclosure Law on December 20, 2000, there was a line of cases beginning with LeDonne v. Kessler, 256 Pa. Super. 280, 389 A.2d 1123 (1978), which, despite integration clauses, permitted in residential real estate transactions evidence of oral representations to be admitted to support a fraudulent misrepresentation claim. In Blumenstock v. Gibson, 811 A.2d 1029, 1036-37 (Pa. Super. 2002), the court described this line of cases as follows:

“An exception to this general formulation of the impact of the parol evidence rule has been created and followed by the so-called ‘real estate inspection cases,’ i.e., LeDonne v. Kessler, 256 Pa. Super. 280, 389 A.2d 1123 (1978), and its progeny.

“The LeDonne line of cases involves written agreements for the sale of real property, almost always residential, that contain integration clauses. 1726 Cherry Street Partnership [v. Bell Atlantic Properties Inc., 439 Pa. Super. 141, 153-54 n.6, 653 A.2d 663, 669 n.6 (1995)]. Despite these integration clauses, Pennsylvania courts sometimes have permitted evidence of oral representations to be admitted. Id.

“The test enunciated for this type of case, as stated by the LeDonne court, requires a balancing of the extent of the parties’ knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether that party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.

“1726 Cherry Street Partnership, 653 A.2d at 669-70 n.6. Accord Lenihan v. Howe, 449 Pa. Super. 426, 674 A.2d 273, 275 (1996) (applying the LeDonne balancing test in reliance upon the formulation set forth in Myers v. McHenry, 398 Pa. Super. 100, 580 A.2d 860, 864 (1990)). The LeDonne test was crafted because Pennsylvania courts have refused to enforce the parol evidence rule in so strict a manner as to deny relief to a party who was unable to entirely protect himself from the harm he eventually suffered. 1726 Cherry Street Partnership, 653 A.2d at 670 n.6.”

Since the Pennsylvania courts had been allowing buyers, despite integration clauses, to pursue fraudulent misrepresentation claims against sellers under the LeDonne balancing test for more than 20 years prior to the enactment of the Disclosure Law, the only reasonable explanation for the enactment of the Disclosure Law was to provide broader relief to the buyers of residential real estate.

Under the LeDonne line of cases, a buyer could not recover without proving by clear and convincing evidence that (1) the seller made a false representation which was material; (2) the seller made the representation with the knowledge of its falsity or recklessness as to whether it was true or false and with the intent to mislead the buyer; and (3) the buyer justifiably relied on the misrepresentation, and sustained injury caused by the reliance. Blumenstock v. Gibson, supra, 811 A.2d at 1034. The Disclosure Law expands the seller’s obligations and the buyer’s remedies in several ways.

First, under the LeDonne line of cases, the seller’s silence about a condition of the premises of which the seller was aware was not necessarily characterized as a false representation. Since the Disclosure Law requires disclosure of specified information, the buyer may pursue a claim against the seller without convincing a court that the seller’s silence should be characterized as a fraudulent misrepresentation.

Second, the Disclosure Law permits a buyer to recover actual damages caused by any misstatements and omissions of information furnished on the property disclosure statement known to the seller. Buyers no longer need to establish materiality or an intent to mislead. In addition, buyers no longer need to show that undisclosed defects could not have been discovered through a reasonable inspection.

Third, the Disclosure Law permits recovery where the buyer proves by a preponderance of the evidence that in completing the property disclosure statement the seller made representations that the seller knew, or had reason to know, were false, deceptive, or misleading. The buyer no longer needs to establish by clear and convincing evidence that the seller’s representations were made falsely and with knowledge of the falsity, or recklessness as to whether they were true or false.

At the time it enacted the Disclosure Law, the members of the General Assembly would have known that sales of residential property are almost always governed by standard sales agreements which contain integration clauses. Thus, the Disclosure Law should be construed to incorporate into the sales agreement the representations that the seller made in the property disclosure statement. Any other interpretation of the Disclosure Law would render meaningless the purposes of this legislation of broadening the LeDonne line of cases.

Defendants also rely on paragraph 8 of the standard agreement, where the buyer waived his right to inspect, paragraph 24 where, because he waived inspection, he waived contingencies and; agreed to the release set forth in paragraph 25, and paragraph 25 which releases sellers and brokers from any and all claims, losses, or demands. (Amended complaint, exhibit A at 2 ¶8 and 7 ¶¶24 and 25.)

The LeDonne line of cases treats release clauses in the same fashion as it treats integration clauses. These clauses do not defeat a misrepresentation claim recognized under the LeDonne balancing test. See e.g., Blumenstock v. Gibson, supra, 811 A.2d at 1035-36.

The Disclosure Law does not describe any situations in which its provisions may be waived. If the Disclosure Law could be waived through language in a standard form agreement releasing the sellers from liability for failure to disclose defects, this would occur in virtually every case and the Disclosure Law would be rendered meaningless. For the reasons I previously discussed, this would not be a construction of the Disclosure Law that the General Assembly would have intended.

The legislature has addressed the question of whether there are situations in which the Disclosure Law should not apply by excluding certain residential real estate transfers from the application of the law. See 68 P.S. §7302. The Disclosure Law governs all other residential real estate transfers. For this reason, courts will not recognize waivers and releases in standard form sales agreements that purport to alter the remedies afforded a buyer under section 7311 of the Disclosure Law.

I am also denying defendants’ motion for summary judgment as to Count I (fraud) and Count III (violation of the Consumer Protection Law). The facts set forth in the amended complaint may bring the transaction within the scope of the LeDonne line of cases.

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

ORDER

On May 25,2005, it is hereby ordered that defendants’ motion for summary judgment is denied.

      . The Disclosure Law is not a substitute for the LeDonne line of cases. The final sentence of section 7311(a) states: “This subsection shall not be construed so as to restrict or expand the authority of a court to impose punitive damages or apply other remedies applicable under any other provision of law.”

      . Blumenstock involved a real estate sales transaction that occurred prior to the enactment of the Disclosure Law.


author: GEPHART, Member,

text:
    Office of Disciplinary Counsel v. Silver

      Disciplinary Board Docket no. 56 D.B., 178 D.B. 2003.
    January 7, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GEPHART, 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 April 29, 2003, a petition for discipline at no. 56 D.B. 2003 was filed by Office of Disciplinary Counsel against respondent, Gary Scott Silver. The petition charged respondent with commingling non-fiduciary funds with funds in his law firm’s trust account, failing to hold client funds inviolate, failing to maintain complete records of client and third-party funds for a period of five years after termination of representation, and failing to promptly deliver to his client the funds he was entitled to receive.

On November 20,2003, a petition for discipline at no. 178 D.B. 2003 was filed against respondent charging him with sending an ex parte communication to a court of common pleas judge, and failing to comply with three orders issued by the same judge.

Respondent filed an answer to petition for discipline at no. 178 D.B. 2003 on December 11, 2003. By Disciplinary Board order of January 29, 2004, the petitions for discipline were consolidated for hearing before Hearing Committee 1.19.

A disciplinary hearing was held on May 5, 2004, before Hearing Committee 1.19 comprised of Chair John Edward Quinn, Esquire and Members Edward C. Toole Jr., Esquire, and Steven M. Steingard, Esquire. Respondent was represented by Samuel C. Stretton, Esquire. At the hearing, Disciplinary Counsel withdrew charges in petition 56 D.B. 2003 relating to alleged violations by respondent ofR.P.C. 1.4(a) and 1.5(c). Subsequently, in its brief to the Hearing Committee, Disciplinary Counsel concluded that respondent did not violate R.P.C. 8.4(c).

Following the submission of briefs by the parties, the Hearing Committee filed a report on October 13, 2004, finding that respondent committed violations of the Rules of Professional Conduct and recommending that respondent receive a public censure with 12 months of probation.

This matter was adjudicated by the Disciplinary Board at the meeting of November 17, 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, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said rules.

(2) Respondent, Gary Scott Silver, was bom in 1961 and was admitted to practice law in the Commonwealth of Pennsylvania in 1991. His office is located at 2000 Market Street, Suite 2925, Philadelphia, PA 19103.

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

(4) Respondent has a prior record of discipline consisting of two informal admonitions administered in 2001, and a private reprimand administered in 2002.

(5) At all times relevant, the former law firm of Silver & DiVergilis had a trust account titled “Silver Di Vergilis & Marrone attorney trust account” maintained at CoreStates Bank. Respondent was the attorney bearing the primary responsibility for handling the trust account for the firm.

(6) Respondent made the following deposits of cash or checks into the trust account:

(a) On October 13, 1998, respondent deposited three checks issued by the City of Philadelphia in the amounts of $400, $400 and $500, made payable to James DiVergilis;

(b) On October 7,1998, respondent deposited a check for $2,471.30 made payable to him for work he performed for Michael Forbes, Esquire;

(c) On December 8, 1998, respondent deposited a check for $2,748.35 made payable to him for additional work he performed for Mr. Forbes;

(d) On December 18,1998, respondent deposited $700 in cash;

(e) On January 12,1999, respondent deposited a check for $404.29 issued by the Department of the Treasury, State of New Jersey, and made payable to: James J. DiVergilis, Esq.

(7) On September 1, 1998, respondent deposited $23,918.56 into the trust account, $22,432.56 of which was entrusted to him on behalf of Nicholas Fiolo Sr., Nicholas Fiolo Jr., and Michael Fiolo.

(8) On September 29, 1998, respondent issued three checks each in the amount of $7,477.52, made payable respectively to Nicholas Fiolo Sr., Nicholas Fiolo Jr., and Michael Fiolo.

(9) The checks respondent issued to Nicholas Fiolo Jr. and Michael Fiolo were negotiated in early October 1998.

(10) On December 29, 1998, Nicholas Fiolo Sr., presented the check for deposit and the deposit was returned because of insufficient funds.

(11) On December 29, 1998, First Union sent a dishonored check notice for the check to the Lawyers Fund for Client Security, which advised that an overdraft had occurred in the trust account.

(12) By letter to respondent dated January 12, 1999, Kathryn J. Pifer, the executive director of the fund:

(a) Enclosed a copy of the dishonored check notice;

(b) requested from respondent, within seven business days of receipt of the letter, a written documented explanation as to why the overdraft had occurred;

(c) stated that in the event the overdraft was caused solely by bank error, respondent was required to submit a written acknowledgment from the bank specifying the nature of the error;

(d) requested, in the event the overdraft was not caused solely by bank error, that his response show the number, date, amount, payee, client name, maker of each check and a copy of the client ledger sheet for each client matter;

(e) requested a copy of his monthly trust account bank statements for the last three months;

(f) requested, in the event that funds had been deposited or transferred to cover the overdraft, that he provide a copy of the dated deposit slip, credit memo or bank statement, together with a full description of the funds comprising that deposit;

(g) stated that if funds had not been deposited or transferred to cover the overdraft, an explanation would be necessary; and

(h) informed respondent that if he failed to timely respond to her letter or his explanation was determined by the fund to be unsatisfactory, the matter would be referred to the Disciplinary Board.

(13) Respondent received this letter.

(14) On January 21, 1999, respondent telephoned the fund and advised that the fund would receive his response no later than January 29, 1999.

(15) By certified letter dated February 3,1999, received by respondent on February 5, 1999, Ms. Pifer advised respondent that the matter was being referred to the Office of Disciplinary Counsel because respondent had not submitted a response by January 29, 1999.

(16) From approximately September 8,1998 through October 7, 1998, and on December 3, 1998, respondent failed to maintain sufficient funds in the trust account equal to the amount of funds he was required to maintain on behalf of Nicholas Fiolo Sr.

(17) From December 22, 1998 until January 1999, when the trust account was no longer actively used as a fiduciary account, respondent failed to maintain sufficient funds in the trust account equal to the amount of funds he was required to maintain on behalf of Mr. Fiolo.

(18) In March 1999, respondent paid Nicholas Fiolo Sr. $7,477.52 by issuing to him a new check drawn on a different trust account with CoreStates Bank.

(19) Respondent didn’t maintain complete records pertaining to the client and third-party funds that were handled through the trust account for five years after the representations were terminated.

(20) On July 13, 2001, James DiVergilis, Esquire, through his counsel, commenced a civil action against respondent in the Philadelphia Court of Common Pleas.

(21) On the date the complaint was filed, Mr. DiVergilis also filed a petition for preliminary injunction, seeking to compel respondent to complete various actions necessary to complete the dissolution of the law partnership. These actions included providing access to the partnership books, bank statements and business accounts, paying back taxes and filing tax returns, closing bank accounts, and paying certain bills of the partnership.

(22) A preliminary injunction hearing was held on August 1, 2001, before the Honorable John W. Herron. A partial settlement was reached.

(23) Respondent agreed to do certain things within 10 days of the stipulated order, including signing the partnership dissolution document and providing Mr. DiVergilis with all books and records of the partnership within respondent’s custody or control.

(24) On August 12,2001, Mr. DiVergilis filed a petition for contempt asserting that the only action respondent had taken to comply with the stipulated order was to sign the dissolution agreement and to provide a cashier’s check in the amount of $8,889 to Mr. DiVergilis.

(25) On September 21, 2001, Judge Herron issued a rule to show cause and scheduled a hearing on the contempt petition for October 29, 2001.

(26) The October 29, 2001 hearing was rescheduled for November 5, 2001.

(27) On November 5, 2001, 30 minutes prior to the start of the hearing, respondent sent an ex parte handwritten facsimile to Judge Herron, in which respondent requested that the hearing be rescheduled to November 13, 2001.

(28) Judge Herron denied respondent’s request as untimely and an ex parte communication.

(29) On November 6 and 7, 2001, a hearing on the contempt petition was held during which respondent was present and offered evidence.

(30) By interim order dated November 8,2001, Judge Herron found respondent in contempt of the August 1, 2001 stipulated order. Judge Herron ordered respondent to pay attorney’s fees in the amount of $5,125 within 30 days and directed respondent and Mr. DiVergilis to file proposed findings of fact and conclusions of law by December 7, 2001, and a reply brief by December 14, 2001.

(31) Respondent did not file any proposed findings of fact and conclusions of law or a reply brief.

(32) On December 10, 2001, respondent filed an appeal from the interim order with the Superior Court of Pennsylvania.

(33) On the same date, Mr. DiVergilis filed a second petition for contempt relating to the interim order, but his matter remained deferred while respondent’s appeal was pending.

(34) On December 18, 2001, Judge Herron issued an order directing respondent to file a concise statement of the matters complained of on appeal within 14 days. Respondent failed to comply with this order.

(35) On January 4, 2002, Mr. DiVergilis filed a motion to quash the appeal.

(36) OnFebruaiy 14,2002, the Superior Court ofPennsylvania granted the motion and dismissed the appeal.

(37) On February 25,2002, Judge Herron issued a rule returnable on Mr. DiVergilis5 second contempt petition with a hearing to be held on March 21, 2002.

(38) On March 6, 2002, Mr. DiVergilis filed an amended petition for contempt.

(39) At Mr. DiVergilis’ request, the March 21, 2002 hearing was rescheduled for March 26, 2002.

(40) On March 25, 2002, respondent sent a letter by facsimile transmission requesting that Judge Herron continue the March 26, 2002 hearing because respondent would be out of state that day. Respondent also asserted that the amended petition had not been properly served and requested an extension of 20 days to answer the amended complaint.

(41) Judge Herron did not grant respondent’s request for a continuance or for an extension to answer the amended petition.

(42) Respondent failed to appear at the March 26,2002 hearing.

(43) Judge Herron, sua sponte, issued a rule to show cause as to why respondent should not be held in contempt for failing to appear at the March 26, 2002 hearing and as to the amended petition.

(44) The hearing was scheduled for April 25, 2002.

(45) At the April 25, 2002 hearing, the court questioned respondent as to why he did not appear at the March 26, 2002 hearing and respondent answered he was unable to cancel a family commitment in Connecticut.

(46) By opinion dated May 2, 2002, Judge Herron found respondent in contempt due to, inter alia, his failure to comply with the interim order, failure to appear for the March 26, 2002 hearing, and failure to apprise Judge Herron of this family commitment until very late, which resulted in both inexcusable delay of the proceedings and a wasted court hearing.

(47) By order dated May 2, 2002, Judge Herron:

(a) granted Mr. DiVergilis’ amended petition;

(b) found respondent in contempt of his November 8, 2001 interim order;

(c) held respondent 50 percent responsible for all taxes paid by Mr. DiVergilis since the partnership dissolution for any tax period during which the partnership operated;

(d) held respondent 100 percent liable for interest and penalties incurred, charged or otherwise assessed against the Silver & DiVergilis partnership by any federal, state or local entity for taxes incurred during, or on behalf of, the partnership;

(e) ordered respondent to reimburse Mr. DiVergilis in the amount of $775 for the filing fee to the register of wills on the Catherine Fiolo file;

(f) held respondent liable for additional IRS 940 and 941 taxes for the years 1997 and 1998 in the amount of $886;

(g) ordered respondent to pay attorney’s fees and costs in the amount of $11,506.23;

(h) ordered respondent to satisfy the Comcast Cellular delinquent account;

(i) ordered respondent to pay $1,000 to the office of the prothonotary within 30 days, and.;

(j) ordered respondent to pay all other sums set forth in the May 2, 2002 order within 30 days.

(48) Respondent filed an appeal from Judge Herron’s May 2, 2002 order with the Superior Court of Pennsylvania.

(49) By order of August 7, 2002, the S uperior Court of Pennsylvania dismissed respondent’s appeal due to his failure to complete and return a docketing statement within 10 days to the Superior Court prothonotary.

(50) Respondent cooperated with Office of Disciplinary Counsel.

(51) Respondent expressed remorse for his misconduct.

(52) Respondent is currently in compliance with all orders of Judge Herron and has purged himself of all contempt.

(53) Respondent has been a sole practitioner since January 2000.

(54) Respondent’s current procedures for handling fiduciary and non-fiduciary funds are in compliance with the Rules of Professional Conduct, including maintaining sole authority to issue checks, preparing client distribution schedules and retaining an accountant to review his financial records every three months.

(55) Respondent has a computerized calendar in place, which he reconciles with his date book to keep track of appointments, filing deadlines and court appearances.

(56) Respondent acknowledged that his conduct in not complying with Judge Herron’s orders and not appearing at hearings was unacceptable and would not be repeated in the future.

(57) Three former clients of respondent testified as to his prompt attention to their matters and his representation of their cases in a timely fashion.

(58) Attorney Wayne Maynard has known respondent for six or seven years and knows of his good reputation in the community as a truthful, honest and law-abiding person.

(59) Attorney Leslie Gerstein, who has represented respondent, knows his reputation in the community as a truthful, honest and law-abiding person to be good.

III. CONCLUSIONS OF LAW

Respondent violated the following Rules of Professional Conduct with respect to 56 D.B. 2003:

(1) R.P.C. 1.15(a)—A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyers own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated. Complete records of such account funds and other property shall be preserved for a period of five years after termination of the representation.

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

Respondent violated the following Rules of Professional Conduct with respect to 178 D.B. 2003:

(1) R.P.C. 3.5(b)—A lawyer shall not communicate ex parte with a judge except as permitted by law.

(2) R.P.C. 8.4(d)—It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the Disciplinary Board on consolidated petitions for discipline. Petitioner and respondent stipulated that respondent violated R.P.C. 1.15(a) and 1.15(b) by commingling non-fiduciary funds with funds held in his law firm’s trust account, failing to hold the funds of his client, Nicholas Fiolo Sr., inviolate in his trust account, and failing to maintain complete records of client and third-party funds for a period of five years after the termination of representation and failing to promptly deliver to Mr. Fiolo the funds to which he was entitled. Petitioner and respondent stipulated that during the course of acrimonious litigation, caused by the breakup of his law firm, respondent violated R.P.C. 3.5(b) by sending an ex parte facsimile transmission to the Honorable Judge John Herron of the Court of Common Pleas of Philadelphia County. Respondent also stipulated to violation of R.P.C. 8.4(d) by failing to comply with three orders issued by Judge Herron and failing to appear at a court hearing, thereby delaying the proceedings and wasting the time of the court. Petitioner’s burden of proving ethical misconduct by a preponderance of evidence that is clear and satisfactory has been met. Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194, 425 A.2d 730 (1981).

Similar cases of misconduct have been dealt with by either a public censure or short suspension, sometimes in conjunction with probation. In re Anonymous No. 140 D.B. 1996, 427 disciplinary docket no. 3 (Pa. June 18, 1998) (public censure); In re Anonymous No. 131 D.B. 90, 17 D.&C.4th 170 (1992) (six-month suspension followed by 12-month probation period); In re Anonymous No. 44 D.B. 87, 49 D.&C.3d 488 (1988) (one-year suspension).

Careful review of respondent’s misconduct and the applicable precedent indicates that public discipline is warranted. Respondent’s mishandling of client funds and his contemptuous conduct before Judge Herron are serious acts of misconduct. Respondent’s past record of discipline aggravates the instant misconduct. In respondent’s favor, the record is clear that he changed his office procedures to conform with the requirements of the Rules of Professional Conduct. He utilizes an accountant to review his escrow and operating accounts. He set up specific office devices to ensure timely response to client inquiries and attendance at scheduled hearings. These are positive steps and show respondent’s interest in avoiding ethical problems in the future. Additionally, respondent ultimately complied with the provisions of Judge Herron’s orders and paid all monies pursuant to those orders. Respondent expressed his remorse and understands that his behavior was unacceptable.

For these reasons, the board recommends that respondent be suspended for a period of six months followed by probation with a practice monitor for 12 months.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Gary Scott Silver, be suspended from the practice of law for a period of six months, followed by probation for a period of 12 months with a practice monitor, subject to the following conditions:

(1) Respondent shall select a practice monitor subject to the approval of the Office of Disciplinary Counsel.

(2) The practice monitor shall do the following during the period of respondent’s probation:

(a) Meet with the respondent, at least monthly, to examine respondent’s office and escrow accounts, client ledgers and other financial records to ensure that all such records are being properly maintained and that fiduciaiy and non-fiduciary funds are being properly segregated, handled and disbursed in accordance with Rule of Professional Conduct 1.15;

(b) Meet with the respondent, at least monthly, to examine respondent’s progress towards satisfactory and timely completion of clients’ legal matters and regular client contact;

(c) Periodically examine the respondent’s law office organization and procedures to ensure that the respondent is maintaining an acceptable tickler system, filing system, and other administrative aspects of the respondent’s practice to ensure that scheduled court hearings are attended and filing deadlines are met;

(d) File quarterly written reports on a board-approved form with the secretary of the board; and

(e) Shall immediately report to the secretary any violations of the respondent of the terms and conditions of probation.

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 November 17, 2004 adjudication.

ORDER

And now, April 6,2005, upon consideration of the report and recommendations of the Disciplinary Board dated January 7, 2005, the petition for review and request for oral argument, the request for oral argument is denied and it is hereby ordered that Gary Scott Silver be suspended from the bar of this Commonwealth for a period of six months, to be followed by probation for a period of 12 months, subject to the following conditions:

(1) Respondent shall select a practice monitor subject to the approval of the Office of Disciplinary Counsel.

(2) The practice monitor shall do the following during the period of respondent’s probation:

(a) Meet with the respondent, at least monthly, to examine respondent’s office and escrow accounts, client ledgers and other financial records to ensure that all such records are being properly maintained and that fiduciary and non-fiduciary funds are being properly segregated, handled and disbursed in accordance with Rule of Professional Conduct 1.15;

(b) Meet with the respondent, at least monthly, to examine respondent’s progress towards satisfactory and timely completion of clients’ legal matters and regular client contact;

(c) Periodically examine the respondent’s law office organization and procedures to ensure that the respondent is maintaining an acceptable tickler system, filing system and other administrative aspects of the respondent’s practice to ensure that scheduled court hearings are attended and filing deadlines are met;

(d) File quarterly written reports on a board-approved form with the secretary of the board; and

(e) Shall immediately report to the secretary any violations of the respondent of the terms and conditions of probation.

It is further ordered that respondent shall comply with all of the provisions of Rule 217, Pa.R.D.E. and shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: HORGOS, J.,

text:
    Pogel v. State Farm Fire & Casualty Insurance Company

      C.P. of Allegheny County,
    no. GD 97-17582.

      Gary Davis and Ellen Doyle for plaintiffs.

      Thomas Allen, for defendant.
    August 30, 2005
   HORGOS, J.,

Plaintiffs, Frank Pogel and Elaine Pogel, David Carpenter and Beatrice Carpenter, filed a class action against defendant, State Farm Fire and Casualty Insurance Company, seeking to recover the difference between the actual cash value of losses to their personal property and the replacement cost value of those losses. Plaintiffs argue that State Farm’s interpretation of its replacement cost provisions is unreasonable and that the policy language is ambiguous and must be construed in favor of the insureds under Pennsylvania case law.

Plaintiffs’ amended complaint contained four counts: (1) breach of contract; (2) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1 et seq.; (3) violation of Pennsylvania’s Bad Faith Statute, 42 Pa.C.S. §8371; and (4) breach of the duty of good faith and fair dealing.

Following a certification hearing, the action was certified as a class action by order of November 30, 2000. Defendant filed a motion for partial summary judgment which the court granted by order dated June 26,2002, in which it dismissed all claims arising under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law and all claims arising under Pennsylvania’s Bad Faith statute (Counts II and III). The court also dismissed those claims for breach of contract and breach of the duty of good faith and fair dealing which arose from losses suffered prior to October 29, 1996. Further, as a result of the Pennsylvania Superior Court’s holding in Burton v. Republic Insurance Company, 845 A.2d 889 (Pa. Super. 2004), plaintiffs have stipulated that the claims of class members covered by all State Farm policy forms but two are dismissed with prejudice. The remaining claims arise from the specific language of State Farm’s policy forms FP-7923 and FP-7927.

Defendant filed a motion for summary judgment and plaintiffs filed a cross motion for summary judgment regarding the remaining claims. In its motion for summary judgment, defendant argues that plaintiffs’ claims must be dismissed because the Pennsylvania Superior Court has already affirmed the validity of similar replacement cost provisions in Burton, supra. Plaintiffs, however, contend in support of their motion for summary judgment that the unique language of the policies now at issue differs substantially from the language addressed by the court in Burton and the reasoning of the Superior Court in Burton does not resolve the issue now before this court.

In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment may only be entered in cases where the right is clear and free from doubt. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992). Summary judgment is proper if the moving party is entitled to judgment as a matter of law. Santillo v. Reedel, 430 Pa. Super. 290, 294, 634 A.2d 264, 266 (1993).

The language of State Farm’s policy forms at issue provides as follows:

“(b) We will pay the cost to repair or replace:
“(1) other personal property and other structures (except fences) under Dwelling Extension; and
“(2) carpeting, domestic appliances, awnings and outdoor antennas, whether or not attached to buildings; subject to the following:
“(a) loss to property not repaired or replaced within one year after the loss will be settled on an actual cash value basis;....” (First amended complaint, exhibit 1.)

State Farm maintains that section b.(2)(a) applies to the property set forth in section b.(l) as well as the property in section b.(2). Plaintiffs argue that such an interpretation is unreasonable because it (1) ignores the outline form used throughout the policy; (2) violates the rules of grammar; (3) is at odds with how State Farm interprets the remainder of the policy; and (4) renders the separation of property into sections b.(l) and b.(2) completely meaningless.

The court must first determine if State Faim is correct in its assertion that the Pennsylvania Superior Court’s holding in Burton applies to the within matter. In Burton, the plaintiffs asserted a breach of contract claim against Republic Insurance Company, arguing that the term in Republic’s policy, “actual cash value,” was ambiguous because it was not defined in the policy and could not be consistently interpreted to mean “replacement cost less depreciation” throughout the policy.

Following a non-jury trial, this court found that the language was not ambiguous or unconscionable and held in favor of Republic Insurance Company. The Pennsylvania Superior Court affirmed in Burton v. Republic Insurance Company, supra. The language at issue in Burton was not the same as the relevant language in the State Farm policies which are the subject of plaintiffs’ complaint. This court, nor the Superior Court, addressed the issue raised herein by plaintiffs because the language of the respective policies is not the same. Thus, the court must proceed to examine the language of the State Farm policies now at issue.

The issue may be summarized as follows: Does the condition set forth in section b.(2)(a) of the loss settlement provision, that “loss to property not repaired or replaced within one year . . . will be settled on an actual cash value basis” apply to the property listed in both b.(l) and b.(2), or does it apply only to the property listed in section b.(2)? If section b.(2)(a) applies only to the property listed in section b.(2), or even if the policy language is ambiguous in this respect, then State Farm’s insureds were entitled to recover replacement cost benefits without having to first repair or replace their lost personal property.

In examining this issue, the court must be guided by traditional and well-settled principles governing the interpretation of insurance contracts. The interpretation of an insurance contract is a question of law to be determined by the court. When interpreting an insurance contract, the goal is to determine the intent of the parties as manifested by the language of the written instrument. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). The insurance contract must be construed as a whole with all of its provisions given their proper effects. Luko v. Lloyd’s London, 393 Pa. Super. 165, 167, 573 A2d 1139, 1142 (1990). The court may not rewrite the terms of the policy under the guise of interpretation, and the court must accord the policy terms their accepted and plain meanings. Timbrook v. Foremost Insurance Co., 324 Pa. Super. 384, 388, 471 A.2d 891, 893 (1984).

To be given effect, the language of an insurance policy must be clear and unambiguous. Standard Venetian Blind Co., supra at 305, 469 A.2d at 566. The Pennsylvania Superior Court defined an ambiguous contract as one which “is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Gamble Farm Inn Inc. v. Selective Insurance Co., 440 Pa. Super. 501, 505, 656 A.2d 142, 143-44 (1995). Further, ambiguous provisions in an insurance contract are to be construed in favor of the insured and against the insurer, the drafter of the contract. Standard Venetian Blind Co., supra at 305, 469 A.2d at 566.

Plaintiffs maintain that the natural reading of the subject provision, according to the outline form in which it was written, is that the condition set forth in b.(2) applies only to the property listed in b.(2). A natural reading of the provision leads logically to plaintiffs’ conclusion. A condition set forth under one subsection of the outline form utilized by State Farm is not properly applied to the property listed in a different subsection of the outline.

Plaintiffs submitted expert reports of Professor Beverly A. Sauer and Mary Newton Bruder Ph.D. regarding the effect of the outline form used in the policies. (Plaintiffs’ supplemental memorandum of law in opposition to defendant’s motion for partial summary judgment, exhibits 1 and 2.) They concluded that the outline form has a significant impact on how the average insured would read and understand the replacement cost provisions as set forth in the endorsement. Dr. Bruder stated that the purpose of an outline form is to clarify the relationship of items. In an ordinary outline form, readers would not reasonably assume that subtopics under one section apply to subtopics under another section. Applying this rule to the outline form used by State Farm in Option RC, policyholders would not expect that item (a) listed under item (2) of the provision would reasonably apply to item (1) as well. State Farm’s interpretation is not a correct interpretation according to the outline form in which the contract is written.

State Farm ignores the outline form and argues that the provision is properly read as one continuous sentence in which the conditions listed under section b.(2) apply to b.(l) as well. State Farm’s argument simply ignores why it chose to separate the types of property listed in section b.(l) of the endorsement from the types of property listed in section b.(2). Under State Farm’s interpretation, there is no reason for separating the types of property into two different sections since in practice they are treated the same. State Farm’s interpretation renders this separation meaningless.

Plaintiffs argue that it is an accepted principle of English grammar and contract interpretation that “a limiting clause in a policy is to be confined to the last antecedent unless the context or evident meaning requires a different construction.” 13 Appleman, Insurance Law and Practice, section 7387 at 181-82 (1976); see also, Black’s Law Dictionary, fifth edition, p. 794. Plaintiffs correctly state that the Pennsylvania Supreme Court has long recognized the “last antecedent rule” as the accepted method of statutory construction. See Chestnut Hill & Spring House Turnpike Road Co. v. Montgomery County, 228 Pa. 1,76 A. 726,727 (1910) (“a limiting clause or phrase, following several expressions to which it might be applicable, [is] to be restrained to the last antecedent”); Equitable Gas Co. v. City of Pittsburgh, 507 Pa. 53, 488 A.2d 270 (1985). The Superior Court extended use of the last antecedent rule to the interpretation of insurance policies in Buntz v. Gen. Am. Life Ins. Co., 136 Pa. Super. 284, 289, 7 A.2d 93, 95 (1939). See also, Contrans Inc. v. Ryder Truck Rental Inc., 836 F.3d 163, 167-68 (3d Cir. 1987) (applying Pennsylvania law and using last antecedent rule to interpret an insurance policy).

Applying the last antecedent rule to the language of Option RC, a lay reader would understand the phrase “loss to property not repaired or replaced . . . will be settled on an actual cash value basis” to apply only to the last antecedent, i.e., “carpeting, domestic appliances, awnings and outdoor antennas.” Accordingly, the “repair or replacement” condition would not apply to the “other personal property” listed in section b.(l).

Further, in her report, Professor Sauer addressed the peculiar use of a semicolon in the relevant provisions of State Farm’s policies. In standard usage, semicolons serve two primary functions. They separate elements of a series in which items already contain commas, or they join two or more grammatically complete clauses forming a compound sentence. The semicolon following the word “buildings” in section b. does not perform either of these functions. It follows, rather than separates, a series of items, and it joins an independent clause with a dependent clause which could not stand alone as a grammatically complete sentence. As Professor Sauer explains in her report:

“The punctuation in part b. is both ungrammatical and unconventional. In ordinary usage, writers would never use a semicolon as a full stop to separate a phrase from the sentence or noun that the phrase modifies. Thus, a writer following ordinary usage would not ordinarily separate the phrase subject to the following’ from the noun series that precedes it (‘carpeting, domestic appliances . . . buildings; ’). This line of argument follows one of the most basic principles of sentence structure. The present use of the semicolon creates a fragment that breaks the sense of the sentence. The result is both grammatically and syntactically incorrect.” (Plaintiffs’ supplemental memorandum of law in opposition to defendant’s motion for partial summary judgment, exhibit 1.)

As explained by Professor Sauer, State Farm’s insureds cannot be expected to glean from its non-standard use of semicolons that the limitation in section b.(2)(a) applies to the “other personal property” listed in section b.(l). Instead, they may reasonably disregard the incorrect punctuation in discerning the meaning of the contract language and rely on the policy’s outline form and the standard rule of grammar that a clause qualifies only the language which immediately precedes it.

Further, a review of the language and outline structure used throughout the policies shows that the reader cannot ignore the outline structure and read the provisions as continuous text. Plaintiffs point out one such example on page 4 of policy form FP-7923.

“(2) Property not covered. We do not cover: .. .
“(b) animals, birds or fish;
“(c) any engine or motor propelled vehicle or machine, including the parts, designed for movement on land. We do cover those not licensed for use on public highways which are:...
“(2) designed for assisting the handicapped;” (Plaintiffs’ appendix exhibit 1 at 4.) (emphasis in original)

Under State Farm’s method of interpretation, section 2.c.(2) would modify section 2.b., resulting in coverage for a policyholder’s fish, if it is designed for assisting the handicapped, but not licensed for use on public highways. (Plaintiffs’ memorandum in opposition to defendant’s motion for summary judgment and in support of plaintiffs’ cross-motion for summary judgment, pp. 15-16.)

In other sections of the policies, it is obvious that when State Farm wanted conditions to apply to a specific provision, it placed those conditions immediately underneath that particular provision, in accordance with the outline form employed throughout the policy. See, for example, policy FP-7923, page 16 (first amended complaint, exhibit 1).

This court is mindful that the specific provisions at issue cannot be read in a vacuum. Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). An insurance policy must be examined in its entirety, giving all of the provisions their proper effect. When reading State Farm’s policies in their entirety, the natural reading and logical conclusion supports plaintiffs’ construction of the provision at issue. According to the policy terms, their accepted and plain meaning leads the court to agree with plaintiffs’ conclusions.

State Farm continues to argue that the replacement cost provision is not ambiguous and in support of this averment points to the Pennsylvania Superior Court’s holding in Burton, supra, as well as various other appellate court decisions which have held that particular replacement cost provisions requiring the insureds to repair or replace their lost personalty before they can recover replacement cost are valid and unambiguous. Indeed, this court specifically held in Burton that Republic Insurance Company’s replacement cost provision was not ambiguous. That is not to say, however, that all replacement cost provisions with the same requirements, no matter what the language used, are clear and unambiguous. That was certainly not this court’s intention or meaning in Burton, and is not this court’s interpretation of the cases relied upon by State Farm. The interpretation of an insurance contract is a question of law to be determined by the court, and the court finds that plaintiffs’ interpretation gives the condition that “loss to property not repaired or replaced within one year after the loss will be settled on an actual cash value basis” its accepted meaning. At the very least, the provision at issue is ambiguous and must be construed in favor of the insureds. Accordingly, applying the principles of proper contract interpretation established under Pennsylvania law to the policies at issue establishes that plaintiffs are entitled to summary judgment on the remaining contract claims.

ORDER

And now, August 30,2005, upon consideration of the parties’ cross-motions for summary judgment and the memoranda filed in support thereof, it is ordered, adjudged and decreed that plaintiffs’ cross-motion for summary judgment is granted and defendant’s motion for summary judgment is denied. Plaintiffs are entitled to judgment on their claim for breach of contract, Count I of their first amended complaint, as it relates to policy forms FP-7923 and FP-7927.


author: STALLONE, J,

text:
    Rake v. Moultrie

      C.P. of Berks County,
    no. 98-6083.

      Charles M. Watkins, for appellants.

      Paul G. Lees, for appellee.
    September 29, 2005
   STALLONE, J,

This is an automobile negligence action which arises out of a two-vehicle “rear-end” collision. On December 2, 1997, at approximately 4:45 p.m., the appellant, Kathleen Rake, was stopped at the intersection of Route 422 and Pine Street in the Borough of Wernersville, Berks County, Pennsylvania, when the rear of her vehicle was struck by a second vehicle being driven by the appellee, Stephanie Moultrie. In her complaint, Mrs. Rake alleged that, as a result of this collision, she sustained multiple injuries to her cervical and thoracic spine, one of her teeth and to her temporomandibular joint. Her husband, appellant Mark Rake, also asserted a claim for loss of consortium. In response, Ms. Moultrie admitted that she was negligent, but contended that her negligence was not a factual cause of the injuries and losses complained of by Mr. and Mrs. Rake.

After a trial, a jury returned a verdict in favor of Ms. Moultrie, which prompted Mr. and Mrs. Rake to file a motion for post-trial relief. Following our denial of that motion, they filed a timely appeal to the Superior Court of Pennsylvania in which they are raising three issues for appellate review.

Their first is that they are entitled to judgment n.o.v. on the basis that the jury’s verdict was against the weight of the evidence. This requires an examination of the evidence to determine whether Mr. and Mrs. Rake are entitled to such relief.

Beginning with Mrs. Rake’s claim for injuries to her cervical and thoracic spine, the evidence is that, following the collision, Mrs. Rake was able to drive her vehicle away from the scene onto a side street, at which time she informed Ms. Moultrie, as well as a police officer who subsequently arrived on the scene, that she was “fine.” N.T. trial, pp. 85-86. Three days after the collision, Mrs. Rake sought medical treatment for stiffness in her neck, although she could move her neck and shoulders normally and had normal motor strength and reflexes. N.T., trial, pp. 347-48. She did not seek any further medical care or treatment until April 20, 1998, approximately four and one-half months later, when she saw her family physician, Thomas A. Stewart M.D.

At that time, Mrs. Rake complained of numbness in her upper and lower extremities and a “cracking” noise in her neck. N.T. trial, p. 372. Dr. Stewart was familiar with Mrs. Rake’s history, having treated her for a pinched nerve two years earlier in 1996. N.T. trial, p. 375. Dr. Stewart ordered a magnetic resonance imaging (MRI) scan of Mrs. Rake’s cervical spine, which disclosed a congenital narrowing of her spinal column, as well as cervical cord compression and disc protrusion at C5-C6. N.T., trial, pp. 354-55. Dr. Stewart also had Mrs. Rake undergo a thoracic MRI study, which resulted in the discovery of a right side thoracic disc herniation at T9-T10 and prompted Dr. Stewart to refer Mrs. Rake to Clifford ReedM.D., who is a neurologist. N.T. trial, pp. 356-58.

Dr. Reed testified as an expert witness relative to the issue of causation of her cervical and thoracic spine injuries, as he had taken a medical history from, and conducted a complete neurological examination of, Mrs. Rake. He was of the “impression” that she had sustained a cervical “whiplash” injury, but he did not opine that the December 2, 1997 collision was the cause of that injury. N.T. trial, pp. 401-402. However, he then went on to state that the December 2, 1997 collision “could have caused” her thoracic disc herniation, but again did not opine that the December 2, 1997 collision was the cause of that particular injury. N.T. trial, p. 402. Furthermore, he admitted on cross-examination that he had previously treated Mrs. Rake in 1996 for subjective complaints of pain in her thoracic spine and that there was a similarity between her prior complaints of pain in 1996 and those in 1998. N.T. trial, p. 412. Dr. Reed also stated that, ordinarily, a person suffering from disc herniation would feel pain of some type immediately, not four and a half months after the incident which caused it, as claimed by Mrs. Rake. N.T. trial, pp. 413-14.

During the defense case, the jury heard the testimony of Walter Finnegan M.D., who conducted an independent medical examination of Mrs. Rake on August 16, 1999. N.T. videotaped deposition, p. 9. After examining Mrs. Rake and reviewing her medical records, Dr. Finnegan diagnosed Mrs. Ralee with cervical degenerative disc disease at C5-C6, disc herniation atT9-T10 and degeneration of other discs in her thoracic spine. N.T. videotaped deposition, pp. 9-11. In Dr. Finnegan’s opinion, both her cervical and thoracic injuries were pre-existing and, therefore, were not caused by the December 2, 1997 collision. N.T. videotaped deposition, pp. 10-12. Furthermore, according to Dr. Finnegan, there was no objective evidence showing that the collision in any way “aggravated” either her cervical or thoracic injuries. N.T. videotaped deposition, pp. 76-77.

This brings us to the evidence relative to Mrs. Rake’s claim for injuries to her one tooth and her temporomandibular joint. In support of these claims, she presented the testimony of her treating dentist, Scott E. Roseberry D.D.S., as well as that of Brendan F. Mulligan D.M.D., who testified as an expert witness.

Beginning with Dr. Roseberry, he testified that he discovered a fracture of Mrs. Rake’s tooth number 13 on February 11,1998, which he treated by performing a root canal and the installation of a crown. N.T. trial, pp. 278-79. As for the cause of that fracture, Dr. Roseberry said that a fracture like this “could occur” as a result of the jaw snapping shut in a motor vehicle collision, but he was not qualified to render an opinion as to whether the December 2, 1997 collision caused this fracture. N.T. trial, pp. 285-86. Dr. Roseberry also diagnosed Mrs. Rake as suffering from a temporomandibular joint injury, which he treated by the use of various mouthpieces and, ultimately, orthodonture. However, he likewise was not able to render an opinion relative to the causation of this injury. N.T. trial, pp. 290-91.

Dr. Mulligan, who never examined Mrs. Rake and neither spoke to Dr. Roseberry nor reviewed any of Dr. Roseberry’s records, arrived at a different diagnosis, opining that Mrs. Rake suffered from atypical myofascial pain syndrome. N.T. trial, pp. 143-44. Although he then went on to say that atypical myofascial pain syndrome “could be caused” by a rear-end collision, he did not opine that the December 2, 1997 collision was a factual cause of this condition in Mrs. Rake. N.T. trial, pp. 144-45.

In response, Ms. Moultrie called Barry Glassman D.M.D., to present expert testimony relative to Mrs. Rake’s fractured tooth and her temporomandibular joint. Dr. Glassman testified that, after reviewing Dr. Rose-berry’s medical records, he could find no evidence to support Dr. Roseberry’s finding of a fracture to Mrs. Rake’s tooth number 13 or that Mrs. Rake had sustained any temporomandibular joint injury as a result of this collision. N.T. trial, pp. 456-57, 463-64.

In Pennsylvania, it is the jury’s function to determine the weight and the credibility of the evidence submitted at trial and a reviewing court may not substitute its own judgment where it finds that the verdict is supported either by the evidence or by the lack of evidence presented in support of a particular claim. Stewart v. Owens-Corning Fiberglas, 806 A.2d 34 (Pa. Super. 2002); Vattimo v. Eaborn Truck Service Inc., 777 A.2d 1163 (Pa. Super. 2001). In this case, the jury concluded that the evidence was insufficient to warrant a finding that the December 2,1997 collision was a factual cause of the cervical and thoracic injuries, the fractured tooth and temporomandibular joint injury complained of by Mrs. Rake and, based upon the evidence, we see no reason to disturb the jury’s determination. Accordingly, we did not err in refusing to grant Mr. and Mrs. Rake’s request for the entry of judgment n.o.v.

Secondly, Mr. and Mrs. Rake contend that they are entitled to a new trial because this court did not permit Ali Sadegh Ph.D., who they called as an expert in the field of biomechanics, to testify that the December 2, 1997 collision was the cause of Mrs. Rake’s injuries but, instead, only allowed him to testify that her injuries “could have been caused” by the December 2,1997 collision.

In Pennsylvania, the admission or exclusion of evidence is within the sound discretion of the trial judge, whose decision will not be reversed absent an abuse of that discretion or the commission of an error of law. Daniel v. William R. Drach Co. Inc., 849 A.2d 1265 (Pa. Super. 2004). In making a ruling as to whether an expert witness is qualified to provide opinion testimony on a particular issue, the reviewing court must determine whether that witness has sufficient skill, knowledge or experience, such that his opinion will in all probability aid the trier of fact in its search for the truth. Wexler v. Hecht, 847 A.2d 95 (Pa. Super. 2004). If the reviewing court finds that the witness does not have such skill, knowledge or experience, it may refuse to permit such testimony. Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995).

In this case, Mr. and Mrs. Rake sought to elicit medical opinion testimony from Dr. Sadegh that her cervical, thoracic and temporomandibular injuries were caused by the December 2, 1997 collision. However, while Dr. Sadegh holds a Ph.D. in Mechanical Engineering, he does not have any degree, specialized training or experience in any field of medicine. N.T. trial, p. 181. He likewise never examined Mrs. Rake or reviewed any of her medical records, including her x-rays, MRI scans and thoracic MRI study. N.T. trial, pp. 199,209-10. As a result, he certainly was not, in our judgment, qualified, either through skill, knowledge or experience, to render a medical opinion relative to the causation of Mrs. Rake’s cervical, thoracic and temporomandibular injuries. Accordingly, we clearly did not err in limiting the scope of Dr. Sadegh’s testimony.

Finally, Mr. and Mrs. Rake are seeking a new trial on the basis that this court should not have permitted a surveillance videotape taken of Mrs. Rake to be shown to the jury. Their argument is twofold.

The first is that the videotape created a “false impression” of Mrs. Rake’s physical condition, in that it appeared to show Mrs. Rake constantly standing on her feet for a long period of time. However, the record belies that assertion, as not only does it indicate that the date and time of each scene was clearly shown at the bottom of the tape, but it also states that the jury was informed that the original videotape had been shot over the course of two separate days in 1999. N.T. trial, pp. 424-26.

Secondly, they maintain that the videotape should not have been shown to the jury because the person who actually shot it was not called as a witness to testify as to its authenticity. However, the jury did hear live testimony from Paul Dohner, the owner of the surveillance company responsible for shooting the videotape. Mr. Dohner explained the nature of the request for surveillance, what he did in response to that request and how the surveillance itself was conducted. N.T. trial, pp. 422-24. He further testified that a total of four and one-half hours of footage had been shot and condensed into approximately a 25-minute videotape. N.T. trial, p. 424. Lastly, Mr. Dohner confirmed that the scenes in the videotape had not been altered in any way and that the time clock which appeared on the lower right-hand comer of the video was accurate. N.T. trial, pp. 426, 443.

It is not necessary that the person who shoots a videotape appear in court to testify to the tape’s authenticity as long as someone who is familiar with it can testify that the videotape is a fair and accurate depiction of the events sought to be shown. Commonwealth v. Hindi, 429 Pa. Super. 169, 178, 631 A.2d 1341, 1346 (1993), accord, Commonwealth v. Impellizzeri, 443 Pa. Super. 296, 308, 661 A.2d 422, 428 (1995). In this case, Mr. Dohner’s testimony was more than sufficient to authenticate the videotape.

As a result, we did not err in permitting this surveillance videotape to be shown to the jury.

And so, for these reasons, we affirm our denial of Mr. and Mrs. Rake’s motion for post-trial relief and respectfully request the Superior Court of Pennsylvania to deny this appeal.

      . In Pennsylvania, a request for the entry of judgment n.o.v. may be granted only in a clear case where the evidence is such that no two reasonable minds could fail to agree that the verdict should have been rendered in favor of the moving party. Janis v. AMP Inc., 856 A.2d 140 (Pa. Super. 2004); Mitzelfelt v. Kamrin, 379 Pa. Super. 121, 549 A.2d 935 (1988). Since the entry of a judgment n.o.v. is a drastic remedy, any doubts must be resolved in favor of the verdict winner. Cauthorn v. Owens-Corning Fiberglas Corp., 840 A.2d 1028 (Pa. Super. 2004).

      . All scripted or otherwise highlighted language in this memorandum opinion is for emphasis only.

      . “Myofascial pain syndrome” is defined at page 882 of the Gould Medical Dictionary (Blakiston, fourth edition, 1979), as unilateral facial pain aggravated by mandibular movement and associated with tenderness of the head and neck muscles and sometimes of the temporomandibular joint on the affected side.

      . A request for a new trial based upon an evidentiary ruling by the trial court should not be granted unless it is established that the ruling complained of was erroneous and that it affected the outcome of the case. Nigra v. Walsh, 797 A.2d 353 (Pa. Super. 2002).

      . We also note that Mr. and Mrs. Rake did not present any evidence to dispute the authenticity of the videotape.