author: PER CURIAM,

text:
    Office of Disciplinary Counsel v. Perkel

      Disciplinary Board,
    No. 23 DB 2014
    May 27, 2015
   PER CURIAM,

The three-member panel of the disciplinary board of the Supreme Court of Pennsylvania, consisting of board members Lawrence M. Kelly, Brian J. Cali and P. Brennan Hart, has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on April 2, 2015.

The panel approves the joint petition consenting to a two year suspension retroactive to June 12, 2014 and recommends to the Supreme Court of Pennsylvania that the attached petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER RULE 215(d), Pa.R.D.E.

Petitioner, office of disciplinary counsel, by Paul J. Killion, Esquire, chief disciplinary counsel, and by Richard Hernandez, Esquire, disciplinary counsel, and respondent, Benjamin Hart Perkel, who is represented by Andrew A, Chirls, Esquire, file this joint petition in support of discipline on consent under Pennsylvania Rule of Disciplinary Enforcement 215(d)(“the joint petition”), and respectfully represent that:

1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter “Pa.R.D.E.”), 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 of Disciplinary Enforcement.

2. Respondent, Benjamin Hart Perkel, was bom in 1983, was admitted to practice law in the Commonwealth on April 22, 2010, and has a public access address at 2001 Hamilton Street, Apartment 2211, Philadelphia, Pennsylvania 19130-4216.

3. Respondent is on suspended status, having been temporarily suspended by order of the Supreme Court of Pennsylvania dated May 13,2014, effective June 12,2014 (“the suspension order”), the suspension order was based on a joint petition to temporarily suspend an attorney that was filed by petitioner and respondent.

4. Pursuant to Pa.R.D.E. 201(a)(1), respondent is subject to the disciplinary jurisdiction of the disciplinary board of the Supreme Court.

5. Respondent self-reported his misconduct by letter dated February 21, 2013, sent by respondent’s counsel to disciplinary counsel-in-charge. The letter acknowledged that respondent had violated Rule of Professional Conduct 8.4(c).

6.In connection with ODC File No. Cl-13-155, respondent received a request for statement of respondent’s position (Form DB-7) dated January 8, 2014.

7. By letter dated May 16, 2014, respondent submitted a response to the DB-7 letter; respondent resubmitted a substantially identical response through his counsel, by letter dated June 30, 2014.

8. By e-mail dated December 16, 2014, Mr. Chirls advised petitioner that respondent had agreed to enter into a joint recommendation for consent discipline.

SPECIFIC FACTUAL ADMISSIONS AND RULES OF PROFESSIONAL CONDUCT VIOLATED

9. Respondent hereby stipulates that the following factual allegations drawn from the DB-7 letter, as referenced above, are true and correct and that he violated the charged Rules of Professional Conduct as set forth herein.

CHARGE

10. At all times relevant hereto, respondent was employed as an independent staff attorney by Drinker Biddle & Reath, L.L.P. (“the firm”).

a. The firm paid respondent $40.00 an hour for his services.

11. Respondent’s employment at the firm began in November 2011 and concluded in November 2012.

12.The firm assigned respondent to review documents and to perform related tasks for a litigation matter involving Maxus Energy Corporation (“client”), a firm client; the matter was titled the “Passaic River Litigation” and assigned a matter number of 220422.

13. Respondent’s main job responsibility with respect to the Passaic River Litigation was to review documents, to answer various questions about the documents, and to record his determinations about the documents in an e-discovery program known as “relativity.”

14. Respondent was also required to record the time he spent reviewing documents and performing related tasks for the Passaic River Litigation on the firm’s time accounting system, known as “Elite.”

a. The Elite system accommodated recording time in increments as small as one-tenth of an hour.

15. In order to properly record the time respondent spent reviewing documents and performing related tasks for the Passaic River Litigation using Elite, respondent had to enter the client file number, the matter number, and the amount of hours he worked, and to provide a brief description of the work performed.

16. Commencing in November 2011, and continuing through November 2012, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation. Attached as Exhibit ODC-1 is a true and correct copy of a final report prepared by the firm that details the extent to which respondent over-reported the number of hours he spent on the Passaic River Litigation.

17. For the period of November 28, 2011 through December 16, 2011, respondent recorded on Elite that he had spent time totaling 112.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Kathleen Stevenson, an employee at the firm, in which he reported that his billable hours for this period were 112.7 hours.
b. In fact, during this period respondent spent only 105.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents, and performing related tasks for the Passaic River Litigation by 7.2 hours.

18. For the period ofDecember 19,2011 through January 18, 2012, respondent recorded on Elite that he had spent time totaling 123.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 123.5 hours.
b. In fact, during this period Respondent spent only 113.1 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 10.4 hours.

19. For the period of January 19,2012 through February 20, 2012, respondent recorded on Elite that he had spent time totaling 151.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 149.5 hours.
b. In fact, during this period respondent spent only 143.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 5.8 hours.

20. For the period of February 21,2012 through March 18, 2012, respondent recorded on Elite that he had spent time totaling 102.8 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 102.8 hours.
b. In fact, during this period respondent spent only 87.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 15.1 hours.

21. For the period of March 19, 2012 through April 19, 2012, respondent recorded on Elite that he had spent time totaling 232.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 232.5 hours.
b. In fact, during this period respondent spent only 219 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 13.5 hours.

22. For the period of April 20, 2012 through May 20, 2012, respondent recorded on Elite that he had spent time totaling 127 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 127 hours.
b. In fact, during this period he spent only 96.4 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 30.6 hours.

23. For the period of May 21, 2012 through June 18, 2012, respondent recorded on Elite that he had spent time totaling 150.2 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 150.2 hours.
b. In fact, during this period respondent spent only 80.1 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 70.1 hours.

24. For the period of June 19, 2012 through July 19, 2012, respondent recorded on Elite that he had spent time totaling 108.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 108.7 hours.
b. In fact, during this period respondent spent only 74.2 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 34.5 hours.

25. For the period of July 20, 2012 through August 20, 2012, respondent recorded on Elite that he had spent time totaling 140.8 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 140.8 hours.
b. In fact, during this period respondent spent only 107.7 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 33.1 hours.

26. For the period of August 21,2012 through S eptember 18, 2012, respondent recorded on Elite that he had spent time totaling 174.3 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 174.3 hours.
b. In fact, during this period respondent spent only 112.2 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 62.1 hours.

27. For the period of September 19, 2012 through October 18,2012, respondent recorded on Elite that he had spent time totaling 188 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. Respondent also sent an e-mail to Ms. Stevenson in which he reported that his billable hours for this period were 188 hours.
b. In fact, during this period respondent spent only 108.4 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
c. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 79.6 hours.

28. For the period of October 19, 2012 through November 14, 2012, respondent recorded on Elite that he had spent time totaling 112 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

a. In fact, during this period respondent spent only 55 hours in reviewing documents and performing related tasks for the Passaic River Litigation.
b. For this period, respondent over-reported the time he spent reviewing documents and performing related tasks for the Passaic River Litigation by 57 hours.

29. For the period November 28, 2011 through November 14, 2012, the actual time respondent spent in reviewing documents and performing related tasks for the Passaic River Litigation totaled 1,303 hours.

30. For the period November 28, 2011 through November 14, 2012, respondent recorded on Elite that he had spent time totaling 1,721.5 hours in reviewing documents and performing related tasks for the Passaic River Litigation.

31. For the period November 28, 2011 through November 14, 2012, respondent over-reported the time he spent in reviewing documents and performing related tasks for the Passaic River Litigation by 418.5 hours.

32. In November 2012, the firm discovered that respondent was overbilling time he recorded on Elite for the Passaic River Litigation.

a. When the firm discovered that respondent was overbilling time he recorded on Elite for the Passaic River Litigation, it had yet to issue respondent a paycheck for the 112 hours he had recorded on Elite for the period October 19, 2012 through November 14, 2012.

33. On November 27, 2012, Andrea L. D’Ambra, Esquire, an attorney with the firm who supervised respondent’s work on the Passaic River Litigation, sent respondent an e-mail requesting that he attend a meeting at the firm that would be held at 11:30 a.m.

34. On November 28, 2012, respondent went to the firm and met with Ms. D’Ambra and Wilson M. Brown, III, Esquire, a partner at the firm.

35. During the meeting, Ms. D’Ambra and Mr. Brown informed respondent of the differences in the time he recorded on Elite for reviewing documents and performing related tasks for the Passaic River Litigation and the time respondent logged on to relativity.

36. After Ms. D’Ambra and Mr. Brown heard respondent’s explanation of the differences in the time he recorded on Elite and the time he logged on to relativity, which included an acknowledgment by respondent that a substantial portion of the time at issue was over-reported, Mr. Brown told respondent that his services were terminated.

37. The firm withheld respondent’s last paycheck.

a. Based on the 55 hours of time respondent had actually spent in reviewing documents and performing related tasks for the Passaic River Litigation for the period October 19, 2012 through November 14, 2012, respondent was entitled to gross pay in the amount of $2,200.00.

38. In March 2013, the firm and respondent’s counsel agreed that respondent would pay $12,250.00 to the firm to compensate the firm for wages that respondent had received, but had not earned; respondent’s counsel advised the firm that respondent would repay the firm when he has an income.

39. In January 2015, respondent began making monthly $100.00 payments to the firm as compensation for the wages he received by having over-reported the time he spent on the Passaic River Litigation.

40. Respondent’s hourly billing rate during his employment at the firm was $245.00.

41. When the firm discovered that respondent had over-reported the time he spent in reviewing documents and performing related tasks for the Passaic River Litigation, the firm had already billed the client for part of the over-reported time entries respondent had submitted.

a. The amount of respondent’s over-reported time entries that was billed to, and paid by, the client totaled $49,752.00 (approximately 203 hours of respondent’s over-reported time entries).
b. The client is entitled to receive from the firm a refund or credit in the amount of $49,752.00.

42. By his conduct as alleged in paragraphs 10 through 41 above, respondent violated the following Rules of Professional Conduct:

a. RPC 1.5(a), which states, in relevant part, that a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee;
b. RPC 4.1(a), which states that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person;
c. RPC 8.4(a), which states that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; and
d. RPC 8.4(c), which states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE

43. Petitioner and respondent jointly recommend that the appropriate discipline for respondent’s admitted misconduct is a suspension from the practice of law for a period of two years retroactive to June 12, 2014, the effective date of the order placing respondent on temporary suspension.

44. Respondent hereby consents to that discipline being imposed upon him by the Supreme Court of Pennsylvania. Attached to this petition is respondent’s executed affidavit required by Rule 215(d), Pa.RD.E., stating that he consents to the recommended discipline, including the mandatory acknowledgements contained in Rule 215(d) (1) through (4), Pa.R.D.E.

45. In support of petitioner and respondent’s joint recommendation, it is respectfully submitted that there are several mitigating circumstances, as set forth below:

a. Respondent has admitted engaging in misconduct and violating the charged Rules of Professional Conduct;
b. Respondent has cooperated with petitioner, as is evidenced by respondent’s admissions herein and his consent to receiving a suspension of two years;
c. Respondent is remorseful for his misconduct and understands he should be disciplined, as is evidenced by his consent to receive a suspension of two years;
d. Respondent has no record of discipline;
e. Respondent was a young and inexperienced attorney at the time the misconduct occurred (November 2011 through November 2012), having been admitted to practice law in New Jersey in July 2010 and in the Commonwealth of Pennsylvania in April 2010;
f. Respondent voluntarily agreed to be temporarily suspended during the pendency of the within disciplinary matter; and
g. Respondent self-reported his misconduct.

46. Respondent, through his attorney, desires to bring to the attention of the three-member panel of the disciplinary board and the Supreme Court of Pennsylvania that if the within disciplinary matter had proceeded to a disciplinary hearing, respondent would have:

a. presented evidence that when respondent engaged in the misconduct, he was suffering from, and receiving treatment for, attention deficit disorder (“ADD”), depression, and other conditions;
b. sought to establish a causal connection between his misconduct and his psychiatric conditions so he could obtain mitigation under Office of Disciplinary Counsel v. Braun, 553 A.2d 894 (Pa. 1989);
c. presented evidence that he is continuing treatment for his psychiatric conditions;
e. presented character evidence; and
f. presented evidence that he reached an agreement with the firm to pay restitution in the amount of $12,250.00, and he began making monthly restitution payments of $100.00 to the firm, commencing in January 2015.

47. Precedent supports a suspension of two years.

A two-year suspension is within the range of discipline imposed in similar disciplinary cases involving attorneys who have submitted false time sheets. The discipline imposed in those cases ranges from a suspension of six months to three years.

In Office of Disciplinary Counsel v. David P. Rovner, No. 157 DB 2000 (D. Bd. Rpt. 1/22/03) (S. Ct. Order 3/6/03), an insurance defense attorney was suspended for six months for submitting false time sheets over a two-year period. Respondent Rovner joined a new firm as a shareholder, having represented that he would continue to receive referrals from two insurance companies. Upon joining the new firm, Respondent Rovner provided a list of 39 matters that had purportedly been transferred from his old firm, but only five of the 39 files had been transferred to the new firm. Respondent Rovner prepared time sheets for non-existent files, allowed bills totaling $53,509.50 to be prepared based on the false time sheets, and misrepresented that the bills had been sent to an insurance company. In mitigation, Respondent Rovner had no record of discipline, had engaged in legal and non-legal community activities, and presented character evidence. Respondent Rovner had offered expert testimony to establish Braun mitigation, but the board determined that the Braun standard was not met.

In Office of Disciplinary Counsel v. Michael Keith Hollinger, No. 19 DB 2004 (D. Bd. Rpt. 3/21/05) (S. Ct. Order 6/16/05), a worker’s compensation defense attorney received a suspension of one year and one day for engaging in a pattern of billing clients for work he did not perform and overstating the time he spent on services. Over a period approximating ten months, Respondent Hollinger sent false bills to ten clients in twenty-four different workers’ compensation matters. Respondent Hollinger’s firm suffered a financial loss, having refunded $26,730.69 to clients who had been harmed. The firm also claimed lost lawyer productivity worth $26,350.00 due to its efforts to investigate Respondent Hollinger’s misconduct. Mitigating factors were remorse, cooperation with petitioner’s investigation, admission of misconduct, character evidence, no record of discipline, and partial restitution.

In Office of Disciplinary Counsel v. John Anthony Lord, No. 149 DB 1995 (D. Bd. Rpt. 10/20/97) (S. Ct. order 12/30/97), our court suspended Respondent Lord for one year and one day for: altering time sheets to reflect that he had done work that had been performed by others; submitting time sheets for work he had already performed or work he had not performed at all; and submitting false travel vouchers. The false billings and travel vouchers were approximately $18,000.00 and $9,000.00, respectively. Respondent Lord’s misconduct occurred over a seventeen-month period. In mitigation, Respondent Lord had no record of discipline, expressed remorse, cooperated with petitioner, admitted his misconduct, presented character evidence, showed he had rehabilitated himself by curbing his alcohol use (however, no Braun mitigation was awarded), and made partial restitution to the firm.

In Office of Disciplinary Counsel v. James Francis Pearn, No. 82 DB. 2009 (D. Bd. Rpt. 10/26/00) (S. Ct. order 12/28/00), Respondent Pearn was suspended for three years for engaging in a five-year pattern of billing clients for legal work he had not performed. Respondent Pearn’s law firm suffered reputational harm and financial harm because it had refunded more than $30,000.00 to clients. In mitigation, Respondent Pearn had no record of discipline and cooperated with petitioner.

In Office of Disciplinary Counsel v. Michael Joseph Boone, No. 156 DB 2012 (three-member panel recommendation approving joint petition in support of discipline on consent 2/5/13)(S. Ct. order 4/24/13), Respondent Boone, a workers’ compensation associate at a Harrisburg firm, Was suspended for two years for having fabricated billings in eight client matters over a three-month period. Respondent Boone’s false billings totaled $11,787.00. However, no clients were harmed because Respondent Boone’s misconduct was discovered before the clients either had paid the invoices containing the false billings or had received invoices that included Respondent Boone’s false billings. In the consent discipline petition, the following mitigating circumstances were identified; no record of discipline; remorse; admission of misconduct; and Respondent Boone ceased practicing law and assumed retired status.

48. Petitioner and respondent submit that the aforementioned disciplinary cases and the mitigating factors support the joint recommendation of a two-year suspension for respondent’s misconduct.

WHEREFORE, petitioner and respondent respectfully request that:

a. Pursuant to Rule 215(e) and 215(g), Pa.R.D.E., the three-member panel of the disciplinary board review and approve the above joint petition in support of discipline on consent and file its recommendation with the Supreme Court of Pennsylvania in which it is recommended that the Supreme Court enter an order:
(i) Suspending respondent from the practice of law for a period of two years retroactive to June 12, 2014; and
(ii) directing respondent to comply with all of the provisions of Rule 217, Pa.R.D.E.
b. Pursuant to Rule 215 (i), the three-member panel of the disciplinary board order respondent to pay the necessary expenses incurred in the investigation of this matter as a condition to the grant of the petition and that all expenses be paid by respondent before the imposition of discipline under Rule 215(g), Pa.R.D.E.

VERIFICATION

The statements contained in the foregoing joint petition in support of discipline on consent under Pa.R.D.E. 215(d) are true and correct to the best of our knowledge, information and belief and are made subj ect to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

AFFIDAVIT UNDER RULE 215(d), Pa.R.D.E.

Respondent, Benjamin Hart Perkel, hereby states that he consents to the imposition of a suspension of two years retroactive to June 12, 2014, as jointly recommended by petitioner, office of disciplinary counsel, and respondent in the joint petition in support of discipline on consent and further states that:

1. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress; he is fully aware of the implications of submitting the consent; and he has consulted with Andrew A. Chirls, Esquire, in connection with the decision to consent to discipline;

2. He is aware that there is presently pending an investigation into allegations that he has been guilty of misconduct as set forth in the joint petition;

3. He acknowledges that the material facts set forth in the Joint Petition are true; and

4. He consents because he knows that if charges predicated upon the matter under investigation were filed, he could not successfully defend against them.

ORDER

And now, this 27th day of May, 2015, upon consideration of the recommendation of the three-member panel of the disciplinary board dated May 1, 2015, the joint petition in support of discipline on consent is hereby granted pursuant to Pa.R.D.E. 215(g), and it is

ORDERED that Benjamin Hart Perkel is suspended on consent from the bar of this Commonwealth for a period of two years retroactive to June 12, 2014, and he shall comply with all the provisions of Pa.R.D.E. 217.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    In re Sale of Real Estate by Lackawanna County Tax Claim Bureau

      C.P. of Lackawanna County,
    No. 2010-CV-268

      Michael Mey, for plaintiff.

      Brice C. Paul, for defendant.
    June 11, 2015
   MINORA, J.,

INTRODUCTION

Before the court is Northeastern Pennsylvania Council, Inc., Boy Scouts of America’s (“plaintiff’) motion for summary judgment to set aside a subordination agreement. Oral argument was held on April 7, 2015. This matter is therefore ripe for disposition. For the reasons that follow, plaintiff’s motion for summary judgment is denied.

FACTUAL AND PROCEDURAL HISTORY

This litigation involves a judicial tax sale for real property located in Moosic, Pennsylvania, more particularly described in Lackawanna County Tax Map No. 17703-020-00110 (“property”). The issue before the court, however, relates to two mortgage creditors with competing mortgage lien positions on the property.

The facts are as follows: On September 18, 2003, plaintiff entered into an agreement of Sale with Petroleum Services, L.L.C. (“Petroleum Services”) for the sale of the property, which is situated across the street from plaintiff’s property. Petroleum Services intended to undertake a land development project on the property to construct a gas station/mini mart with additional retail space, which would require additional financing. On the same day, plaintiff’s board passed a resolution which provides, in pertinent part:

The board hereby authorizes the council president and secretary scout executive to execute any and all documentation necessary to effectuate the terms and conditions of the sales agreement and financing of the parcel to Petroleum Services LLC.

(9/18/03 Board Meeting Minutes, at 3). On December 22, 2003, a mortgage was executed by and between plaintiff and Petroleum Services in the amount of $575,000. In order to facilitate additional financing for Petroleum Services, plaintiff agreed to subordinate its mortgage. On September 30,2004, plaintiff entered into a subordination agreement whereby Community Bank and Trust Company’s (“defendant”) mortgage of $2,097,000 was placed in senior position. As it stood, defendant’s mortgage interest was placed in first position, and superior to plaintiff’s junior mortgage lien.

On June 9, 2005, Petroleum Services, along with RJM Realty Development, L.P. and RJM Group, LLC, submitted a commercial loan application seeking to refinance the original loan as well as additional financing from defendant in the amount of $3,650,000. On January 12, 2006, Petroleum Services sold the property to RTM Realty Development, L.P. for $675,000. On the same day, RJM Realty Development, L.P. entered into a mortgage agreement with defendant for the amount of $3,650,000. On January 26, 2006, the previous mortgage in favor of defendant for the amount of $2,097,000 was satisfied. Also in January, 2006, a second subordination agreement was executed giving priority of the mortgage liens back in favor of defendant. The agreement was signed by plaintiff’s president, Bryan Fisk.

On January 8, 2010, the Lackawanna County Tax Claim Bureau initiated this case by filing a Petition to Sell Tax Delinquent Property at Judicial Sale Free and Clear of All Liens and Encumbrances. On February 5, 2010, Lackawanna River Basin Sewer Authority filed an objection to Petition to Sell Tax Delinquent Property at Judicial Sale, Free and Clear of All Liens and Encumbrances. On February 19,2010, this court issued an order for judicial sale of the property scheduled to occur on February 22, 2010.

On March 30,2010, plaintiff filed a petition to set aside subordination agreement. On April 26,2010, Lackawanna County Tax Claim Bureau filed a petition for confirmation of the 2010 judicial tax sale and proposed distribution of proceeds. On May 20, 2010, this court issued an order confirming the judicial sale that ultimately concluded on March 22, 2010, with defendant being the successful bidder in the amount of $700,000. On February 9, 2011, defendant filed a motion to strike petition to set aside subordination agreement. On June 22, 2011, this court issued an order denying defendant’s motion to strike petition to set aside subordination agreement. On February 11, 2015, plaintiff motioned for summary judgment. Oral argument was held on April 7, 2015, and this matter is now in a suitable position for disposition.

STANDARD OF REVIEW

A motion for summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2, which provides:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any 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) if, after the completion of discovery relevant to the motion, 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 a jury.

Pa. R.C.P. 1035.2. “Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law.” Singnorile v. Fernwood Hotel & Resort, 2014 WL 6755312, 1.

“Summary judgment may be granted only in cases where the right is clear and free from doubt.” Id. The moving party bears the burden of demonstrating there are no genuine issues of material fact. Id.; Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 554, 981 A.2d 145, 154 (2009); Abrams v. Pneumo Abex Corp., 2007 Pa. Super. 383, 939 A.2d 388, 390 (2007) rev’d on other grounds, 602 Pa. 627, 981 A.2d 198, 201 (2009); Jones v. Levin, 2007 Pa. Super. 412, 940 A.2d 451, 453 (2007). The record will be viewed in a light most favorable to the non-moving party, and any doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. McDonald v. Whitewater Challengers, Inc., 2015 PA Super 104 (Apr. 29, 2015). “All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Singnorile, 2014 WL 6755312, 1. In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Id.; Pa.R.C.P. 1035.3(a); DeSantis v. Frick Co., 1999 Pa. Super. 329, 745 A.2d 624, 625 (1999) (internal citations omitted). “A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant.” Singnorile, 2014 WL 6755312, 1. Determinations of credibility are for the fact finder. Jams v. AMP, Inc., 856 A.2d 140 (Pa. Super. 2004).

DISCUSSION

Plaintiff makes two separate contentions in favor of granting summary judgment and setting aside the subordination agreement. First, plaintiff argues that the subordination agreement should be stricken for lack of consideration. Plaintiff also claims that Mr. Fisk, plaintiff’s president, lacked authority to bind plaintiff to the agreement.

I. WHETHER THERE IS ANY GENUINE ISSUE OF MATERIAL FACT CONCERNING LACK OF CONSIDERATION FOR THE SUBORDINATION AGREEEMENT.

Plaintiff argues that the subordination agreement should be stricken for lack of consideration. Plaintiff asserts it was not paid any consideration, nor has it received any benefit associated with the subordination agreement. Plaintiff also contends there could not have been any ‘bargained-for-exchange’ between plaintiff and defendant because plaintiff was not contacted by the defendant regarding the second loan and had no knowledge of the loan. Moreover, the Uniform Written Obligations Act (“UWOA”) does not apply to the instant case because the agreement does not contain an express statement that the signer intends to be legally bound.

Defendant argues that plaintiff received consideration for the second subordination agreement. Defendant points to the language in the subordination agreement which acknowledges receipt of consideration. Specifically, a clause in the agreement states that the plaintiff is in actual receipt of “consideration in the sum of One Dollar ($1.00) and other good and valuable consideration.” (2006 Subordination Agreement). Defendant elaborates on ‘other good and valuable consideration’ as encompassing the completion of the building on the property, which would greatly increase the value of plaintiff’s adjacent property and increase the equity available to secure plaintiff’s second-lien position. In support of this argument, defendant cites the depositions of President Fisk, Secretary/Scout Executive, and Executive Board Member Tressler. Most relevant was President Fisk’s statement regarding what the plaintiff stood to gain if the building was built on the property. He stated “[t]hat the project would be completed and that there was a likelihood that we would receive all of the moneys that were due us under the loan.” (Fisk Depo. at 81). Alternatively, defendant claims that pursuant to the UWOA, plaintiff expressly and statutorily waived the requirement for consideration because the agreement contained the following clause: “Subordinating party further agrees that...[t]his agreement shall be binding upon Subordinating party and the heirs, representatives, successors and assigns of the Subordinating Party...”(2006 Subordination Agreement).

In order for a contract to be legally enforceable, there must be an offer, acceptance, and consideration. A.S. v. Office for Dispute Resolution (Quakertown Cmty. Sch. Dist.), 88 A.3d 256, 265-66 (Pa. Commw. Ct. 2014). “Consideration” consists of either a benefit to the promisor or a detriment to the promisee. Weavertown Transp. Leasing. Inc. v. Moran, 2003 PA Super 385, ¶ 9, 834 A.2d 1169, 1172 (2003). Pennsylvania appellate courts have concluded, however, that a detriment to the promisee alone may be insufficient. Stelmack v. Glen Alden Coal Co., 339 Pa. 410, 414, 14 A.2d 127, 128-29 (1940). Indeed, the Pennsylvania Supreme Court explained:

It is not enough, however, that the promisee has suffered a legal detriment at the request of the promisor. The detriment incurred must be the ‘quid pro quo’, or the ‘price’ of the promise, and the inducement for which it was made...

Id. Moreover, the question of whether a contract is supported by consideration presents a question of law. Pennsy Supply. Inc. v. Am. Ash Recycling Corp. of Pennsylvania, 2006 PA Super 54, ¶ 8, 895 A.2d 595, 601 (2006).

In the present case, there is express language in the contract acknowledging receipt of consideration. While not conclusive on the matter, it is some evidence that stands at odds with plaintiff’s contention. Moreover, defendant claims the loans would allow completion of the building on the property, thereby increasing property value and increasing the equity available to secure plaintiff’s second-lien position. In support of this argument, defendant cites the depositions of President Fisk, Secretary/Scout Executive, and Executive Board Member Tressler for the proposition that the plaintiff stood to gain from the completion of the project, which required additional financing. Viewing the facts in a light most favorable to the non-moving party, this court finds plaintiff fails to meet its burden of proof that it is entitled to judgment as a matter of law. Defendant provided sufficient evidence and argument to rebut plaintiff’s contention, and plaintiff failed to make a showing that is clear and free from doubt. In cases of doubt, the matter must be resolved in favor of the non-moving party. McDonald. PA Super at *3; Singnorile, 2014 WL 6755312,1. As such, plaintiff’s summary judgment motion is denied as to the argument for lack of consideration.

Even assuming, arguendo, that plaintiff did not receive consideration, plaintiff must also prove the contract does not satisfy the requirements set forth in the UWOA. The UW O A provides:

A written release or promise, hereafter made and signed by the person releasing or promising, shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.

33 Pa. Cons. Stat. Ann. § 6 (West) (emphasis added). When the express language “intends to be legally bound” is used in a contract, courts have determined the contracts cannot be deemed invalid or unenforceable due to lack of consideration. Kay v. Kay, 460 Pa. 680, 684, 334 A.2d 585, 587 (1975) (finding a separation agreement that states the signer intends to be legally bound by the agreement is not rendered unenforceable by the absence of consideration); Rekas v. Dopkavich, 362 Pa. 292, 298, 66 A.2d 230, 233 (1949) (holding a written agreement signed under seal and containing recital by parties “declaring themselves legally bound” could not be avoided on ground that it was without consideration). When the language used in contracts strays away from the express language ‘intends to be legally bound,’ however, some courts have held the contract does not fall within the coverage of the UWOA. See, e.g., Gershman v. Metro. Life Ins. Co., 405 Pa. 585, 176 A.2d 435, 436-37 (1962) (finding that the words “[a]pproved by” followed by obligor’s signature did not satisfy the UWOA). Other courts have found such varying language amounted to an ‘additional express statement, in any form of language, that the signer intends to be legally bound’ provided for in the UWOA, and therefore need not meet the consideration requirement. See InterDigital Commc’ns Corp. v. Fed. Ins. Co., 392 F. Supp. 2d 707, 713 (E.D. Pa. 2005) (holding “the language, ‘this agreement shall run and be binding upon the respective Contracting Parties,’ is an additional express statement and is the form of language that clearly expresses an intent to be bound”).

Instantly, plaintiff’s sole contention is that the contract does not include the express language the party intends to be legally bound. Such specific express language is not necessary; rather, it need only be an additional express statement in the form of language that clearly expresses an intent to be bound. Id. The clause in the contract at issue provides:

This agreement shall be binding upon Subordinating Party and the heirs, representatives, successors and assigns of Subordinating Party...

(2006 Subordination Agreement) (emphasis added). This court would be hard-pressed to make a finding that such a statement does not constitute an additional express statement in the form of language that clearly expresses an intent to be legally bound without the need for additional consideration. Indeed, the language ‘shall be binding upon Subordinating Party’ provides the same effect as ‘intends to be legally bound.’ Moreover, the language is analogous to the contract at issue in InterDigital Commc’ns Corp., where the court determined the statement satisfied the requirements of the UWOA. Id. (analyzing “this agreement shall run and be binding upon the respective Contracting Parties”). Therefore, we find the argument that the subordination agreement fails to satisfy the requirements of the UWOA equally unavailing and unpersuasive.

II. WHETHER THERE IS ANY GENUINE ISSUE OF MATERIAL FACT CONCERNING MR. FISK’S AUTHORITY TO BIND PLAINTIFF.

Plaintiff also claims that Mr. Fisk, plaintiff’s president, lacked authority to bind plaintiff to the agreement. According to plaintiff, the authority provided to Mr. Fisk by the September 18, 2003 board resolution included only signing and effectuating documents associated with the sale of the property to Petroleum Services and a mortgage from the defendant in the amount of $2,070,000. Furthermore, because defendant had actual knowledge of the limited express authority given to Mr. Fisk, it cannot assert an expansion of authority by implication. Finally, plaintiff argues that there is no evidence of the creation of apparent authority because there was no manifestation of such by plaintiff. Thus, plaintiff believes the subordination agreement should be set aside.

Conversely, defendant argues that the signers of the subordination agreement possessed the authority to bind plaintiff to the agreement. Defendant claims the September 18,2003 resolution passed by plaintiff’s board authorized “the Council President and Secretary Scout Executive to execute any and all documents necessary to effectuate the terms and conditions of the sales agreement and financing of the parcel to Petroleum Services LLC.” Defendant also focuses on deposition testimony provided by plaintiff’s Executive Board Member David Tressler, who was in attendance at the meeting in which the resolution was passed, to establish that the resolution was deliberately broad in scope. Defendant likewise asserts that Mr. Fisk and Mr. Rogers both admitted during deposition that they believed they were authorized to sign the 2006 Subordination Agreement at the time they signed it. Moreover, defendant claims Mr. Fisk and Mr. Rogers had implied authority to sign the subordination agreement because they were plaintiff’s same officers that were authorized to sign such documents that were necessary to effectuate the project and get the building built. Further, defendant argues that by allowing Mr. Fisk and Mr. Rogers to sign the earlier subordination agreement, plaintiff confirmed apparent authority for them to sign the latter subordination agreement as a necessary step of getting the project effectuated. Finally, defendant claims authority by estoppel applies to this case because defendant was expressly induced to act to its detriment based on plaintiff’s president and secretary/Scout Executive knowingly and deliberately executing the 2006 subordination agreement, and which President Fisk later reaffirmed in writing and under oath in 2010 prior to the Judicial Sale. Therefore, defendant believes the subordination agreement is valid and enforceable, and as such should remain intact.

It is well-settled law that agency is created through “the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties that the principal is to be in control of the undertaking.” Lapio v. Robbins, 1999 PA Super 106, ¶ 16, 729 A.2d 1229, 1234 (1999) quoting Bradney v. Sakelson, 325 Pa. Super. 519, 473 A.2d 189, 191 (1984). The inquiry as to whether an agency relationship exists is a question of fact. Volunteer Fire Co. of New Buffalo, A.2d at 1351 citing Bolus v. United Penn Bank, 363 Pa. Super. 247, 259, 525 A.2d 1215, 1221 (1987). The case law likewise recognizes that “the nature and extent of an agent’s authority is a question of fact for the trier.” The reality that agency is a question of fact for the trier of fact makes it unsuitable as a basis for summaryjudgmentinthis case. Turner Hydraulics. Inc. v. Susquehanna Const. Corp., 414 Pa. Super. 130, 135, 606 A.2d 532, 534-535 (1992) citing Joyner v. Harleysville Insurance Co., 393 Pa. Super. 386, 574 A.2d 664, 668 (1990), appeal denied, 527 Pa. 587, 588 A.2d 510 (1990). Importantly, it is the party asserting an agency relationship that bears the burden of proving it by a fair preponderance of the evidence. Volunteer Fire Co. of New Buffalo, A.2d at 1351 citing Apex Financial Corp. v. Decker, 245 Pa. Super. 439, 443, 369 A.2d 483, 485 (1976).

Pennsylvania recognizes four types of authority an agent may possess: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel. Walton v. Johnson, 2013 PA Super 108, 66 A.3d 782, 786 (2013); Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 412 Pa. Super. 140, 146, 602 A.2d 1348, 1352 (1992). Express authority is found when “the principal deliberately and specifically grants authority to the agent as to certain matters.” Walton, A.3d at 786 citing Bolus, Pa. Super, at 260. Implied authority involves situations in which “the agent’s actions are ‘proper, usual and necessary’ to carry out express agency.” Walton, A.3d at 786 quoting Passarelli v. Shields, 191 Pa. Super. 194, 156 A.2d 343 (1959). Apparent authority “exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent authority he or she purports to exercise.” Turner Hydraulics, Inc., A.2d at 534 citing Stallo v. Insurance Placement Facility of Pa., 359 Pa. Super. 157, 518 A.2d 827 (1986), appeal denied, 515 Pa. 609, 529 A.2d 1082 (1987). “Although a third party cannot rely on the apparent authority of an agent to bind a principal if he has knowledge of the limits of the agent’s authority, without such actual knowledge, the third party must exercise only reasonable diligence to ascertain the agent’s authority.” Bolus, 363 Pa. Super, at 261-62. (stating “[t]he third party is entitled to believe the agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe”). Finally, authority by estoppel occurs “when the principal fails to take reasonable steps to disavow the third parly of their belief that the purported agent was authorized to act on behalf of the principal.” Walton, A.3d at 786 citing Turnway Corp. v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975).

In the present case, there is a genuine dispute of material fact as to whether President Fisk had the authority to bind plaintiff to the subordination agreement. First, there is a disagreement between the parties as to whether the September 18, 2003 board resolution provided the president express authority to bind plaintiff to the second subordination agreement. The language of the resolution itself is somewhat telling. It provides, in pertinent part:

The board hereby authorizes the Council President and Secretary Scout Executive to execute any and all documentation necessary to effectuate the terms and conditions of the sales agreement and financing of the parcel to Petroleum Services LLC.

(9/18/03 Board Meeting Minutes, at 3) (emphasis added). Plaintiff’s own Executive Board Member, David Tressler, testified in deposition that he believed the authorization provided by the resolution included effectuating the land development project. (TresslerDepo. at23-28). Regardless, if there was a limitation imposed by the resolution, there is also a dispute as to whether the defendant had actual knowledge of such a limitation. Critically, “the nature and extent of an agent’s authority is a question of fact for the trier.” Turner Hydraulics, Inc., A.2d at 534-35. Viewing the facts in a light most favorable to the defendant, there is at least some evidence to support the finding that a reasonable person in the defendant’s position would believe President Fisk had the requisite authority to bind the plaintiff. Bolus, 363 Pa. Super, at 261-62. The court is, again, not convinced plaintiff has made a clear case that is free from doubt. Therefore, the motion for summary judgment as to President Fisk lacking authority to bind plaintiff is likewise denied.

An appropriate order follows.

ORDER

And now to wit, this 11th day of June, 2015, upon consideration of the motions, responsive pleadings, briefs, the trial record and the able verbal and written arguments of counsel for the parties regarding plaintiff’s motion for summary judgment, it is hereby ordered and decreed that plaintiff’s motion for summary judgment and all its attendant requests for relief are denied.

      . The factual background consists of amounts and dates for which there are contracts and other documentary proof. Other factual allegations disputed by the parties were omitted in accordance with parol evidence and statute of frauds rules. Although plaintiff made certain averments regarding fraud, which could be an exception to the parol evidence rule, its brief in support of motion for summary judgment addresses two main issues: (1) lack of consideration; and (2) lack of agency, and we confine ourselves to those two issues.


author: MASSIAH-JACKSON, J.,

text:
    Bailey v. Pham

      David H. Denenberg, for plaintiff.

      Catherine N. Harrington and Shannon Harrington, for defendant.
   MASSIAH-JACKSON, J.,

June 15, 2015

On May 4, 2012, sixty-five year old plaintiff Moses Bailey was involved in a car accident in Philadelphia. Mr. Bailey got out of his car unassisted and felt, “a little dizzy, little woozy.” He went by ambulance to Einstein Hospital where he reported neck pain. He received a CT scan and x-ray, and was released. Mr. Bailey sought treatment at Philadelphia Pain Management on May 21, 2012, seventeen days after the accident. He continued treatment at Philadelphia Pain Management until May 4, 2013. In November, 2012, Mr. Bailey commenced this action against Ms. Amy Pham and Mr. Quang Lee. Quang Lee was dismissed from the case by agreement. After five days of trial, on January 30, 2015, the jury returned a verdict finding that defendant-Pham was negligent, and that her negligence was a factual cause of any harm to plaintiff-Bailey. The jury awarded zero dollars in damages.

Plaintiff-Bailey has filed this motion for post-trial relief, Control No. 15022126, claiming that a new trial on damages is warranted. In the alternative, he seeks additur. The court and counsel coordinated a post-trial briefing schedule. Oral argument was held on June 11, 2015. For the reasons set forth below this court concludes that plaintiff’s claims are without merit. The motion for post-trial relief is denied.

A. A Jury Is Free to Believe All or Part or None of The Evidence.

The underlying basis of plaintiff-Bailey’s post-trial argument is that the award of zero damages is inadequate because it is against the weight of the evidence. “A trial court may only grant a new trial whén the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” Neison v. Hines, 653 A.2d 634, 636 (Pa. 1995). Our case law has consistently held that the jury must believe that a plaintiff suffers pain before it may compensate for that pain. Boggavarapu v. Ponist, 542 A.2d 516 (Pa. 1988); Matheny v. W. Shore Country Club, 648 A.2d 24, 24 (Pa. Superior Ct. 1994). This is not a case involving a manifestly serious or debilitating injury naturally accompanied by pain. See Neison, 653 A.2d at 636; Boggavarapu, 542 A.2d at 518. The Pennsylvania Supreme Court confirmed nearly thirty years ago that the extent of medical treatment is not probative of a plaintiff’s pain and suffering. In Martin v. Soblotney, 466 A.2d 1022 (Pa. 1983) at 1025:

“It is immediately apparent that there is no logical or experiential correlation between the monetary value of medical services required to treat a given injury and the quantum of pain and suffering endured as a result of that injury ... even given identical injuries, treatment and cost, the fact remains that pain is subjective and varies from individual to individual.”

In this trial, the jury was required to distinguish pre-existing conditions and injuries caused by other incidents from injuries caused or aggravated by this accident. Plaintiff-Bailey’s treating chiropractor, Dr. Terri Gartenberg, D.C., testified that Mr. Bailey complained of pains in his neck, lower back, buttocks, wrists, and intermittent pain and tingling in his legs. January 26,2015, N.T. 172, 189. Dr. Gartenberg concluded that plaintiff-Bailey’s pain was caused or aggravated by the May 4, 2012 accident. January 26,2015, N.T. 172,217. However, the jury may have believed the defendant’s neuroradiology expert Dr. Michael L. Brooks, M.D. who characterized plaintiff-Bailey’s conditions as degenerative changes preexisting the May 4, 2012 accident. Brooks Video, January 6, 2015, N.T. 55.

Dr. Brooks testified that the CT scan taken at Einstein Hospital on the day of the accident and an MRI taken in November, 2012 showed degenerative “wear and tear” changes that were long standing and chronic. Brooks Video, January 6, 2015, N.T. 46, 50, 55. Dr. Gartenberg, admitted on cross-examination that she could not tell if the conditions shown on MRI studies taken after the accident were caused or aggravated by the accident. January 26, 2015, N.T. 218. Such a determination would require comparison with an MRI taken before the accident, which did not exist. January 26, 2015, N.T. 218, 224.

Plaintiff-Bailey informed the jury that the impact of the accident did not move his car, his airbags did not deploy, and he did not strike any body parts against the interior of the car. January 26,2015, N.T. 143-145. Mr. Bailey’s car was dented. January 26, 2015, N.T. 147. He did not break any bones. This accident does not compel the conclusion that any resulting injury was of a kind naturally accompanied by pain. Compare Neison, 653 A.2d at 638-38 (finding that injuries were naturally accompanied by pain where the impact caused the plaintiff’s head to shatter the car’s rear window), with Majczyk v. Oesch, 789 A.2d 717, 725 (Pa. Superior Ct. 2001) (holding that a jury was entitled to conclude pain was not compensable where accident was minor).

Plaintiff-Bailey also told the jury that he suffered from diabetic neuropathy, which caused tingling in his feet, legs and arms before the accident. January 26, 2015, N.T. at 82, 115-116. Dr. Gartenberg testified that plaintiff-Bailey reported, during one of his appointments at Philadelphia Pain Management, that he was unsure if the numbness and tingling in his legs were any worse than before the accident. January 26, 2015, N.T. at 266. Further, plaintiff-Bailey explained to the jury that he had broken one wrist and fractured the other in a 1992 fall-down accident, which required surgery on both wrists. January 26, 2015, N.T. at 79, 118.

Additionally, the jury heard that subsequent to this accident, on January 12, 2013, plaintiff-Bailey passed out while driving. His car struck three other vehicles. January 26, 2015, N.T. 105-106, 120. Plaintiff-Bailey stated that when he got out of his automobile someone punched him in his face knocking him down. January 26, 2015, N.T. 105-106. On cross-examination, Dr. Gartenberg indicated that an EMG test taken in April, 2013, after the second accident, showed cervical C-6 radiculopathy in addition to radiculopathy in other locations diagnosed before the January 12, 2013 accident. January 26, 2015, N.T. 245, 248.

Moreover, plaintiff-Bailey testified to experiencing minimal limitations resulting from the May, 2012 accident. January 26,2015, N.T. at 108-109. Mr. Bailey said that his pain interfered with playing pool, bowling and cleaning his apartment. January 26, 2015, N.T. at 108-109. Mr. Bailey admitted, however, that he had not played pool or bowled for six months prior to the May 4, 2012 accident. January 26, 2015, N.T. 155-156. Mr. Bailey said his niece and a friend help with cleaning his apartment, and that he could clean, “but I’m no good at it.” January 26, 2015, NT. 139,155.

With all of this evidence in mind, while the plaintiff did offer evidence of pain, the jury may have concluded that much of the discomfort complained of was not attributable to the May 4, 2012 accident, or that it was less extensive than suggested by Mr. Bailey and/or his chiropractor Dr. Gartenberg. It was up to the triers of fact to assess the weight of the evidence. In Nudleman v. Gilbride, 647 A.2d 233 (Pa. Superior Ct. 1994), the Superior Court reiterated well-established precedent at 237:

“Generally, victims are entitled to be compensated for all of their losses caused by negligence of another. However, not every injury results in compensable pain. Boggavarapu v. Ponist, 518 Pa. 162,166-67, 542 A.2d 516, 518 (1988); Hawley v. Donahoo, 416 Pa. Super. 469, 470-71, 611 A.2d 311, 312 (1992). ... But the jury, having seen and heard the plaintiff, her doctor, and her other witnesses is ‘not required to accept everything or anything the plaintiff and her doctor [or other witnesses] said, even if their testimony was uncontradicted.’ Bronchak v. Rebman, 263 Pa. Super. 136, 140-41, 397 A.2d 438, 440 (1979).”

Finally, in Maiczyk v. Oesch, 789 A.2d 717, 726 (Pa. Superior Ct. 2001), the Superior Court held that the “determination of what is a compensable injury is uniquely within the purview of the jury.” The bottom line: pain is subjective.

B. Conclusion.

After a thorough review of the record, this trial court is unable to find a basis to either award a new trial or to grant additur. The jury had the opportunity to weigh contradictory evidence and inferences, to judge the credibility of witnesses, to consider expert medical testimony, and then to draw the ultimate conclusions as to the facts.

For all the reasons set forth above plaintiff’s motion for post-trial relief is denied. The jury determined that Amy Pham was causally liable for Moses Bailey’s injuries, but that those injuries were not compensable.

ORDER

Andnow, this 15th day of June, 2015, after consideration of the motion for post-trial relief filed by plaintiff Moses Bailey, and defendant’s response thereto, including all memoranda submitted by the parties, after oral argument held June 11, 2015, and, for the reasons set forth in the memorandum filed this date, it is hereby ordered that plaintiff’s motion is denied.


author: STEINBERG, J.,

text:
    Commonwealth v. Large

      C.P. of Lehigh County,
    No. CR-5182-2014

      Kevin McCloskey, for Commonwealth.

      Christopher Shipman, for defendant.
    April 20, 2015
   STEINBERG, J.,

The defendant, John Large, is alleged to have covertly recorded a discussion that he initiated with the Administrative Director of Nursing Services at HCR Manor Care, which is located at 2029 Westgate Drive, Bethlehem, Lehigh County. The discussion, which was described as somewhat confrontational, took place in the administrative director’s office, and concerned his complaints about his adult daughter’s care at the facility.

It is the Commonwealth’s position that the recording of that discussion, which they believe was accomplished with “glasses capable of audio and visual recording,” violates the “Wiretapping and Electronic Surveillance Control Act.” As a result, the defendant has been charged with “Interception, disclosure or use of wire, electronic or oral communications.” Each of the four (4) counts in the Information identify four (4) employees of Manor Care, who were present at some point during the discussions with the defendant. The defendant is also charged with “Possession, sale, distribution, manufacture or advertisement of electronic, mechanical or other devices and telecommunication identification interception devices;” namely, the “eyeglasses that recorded audio and video.”

“Omnibus Pretrial Motions” were filed on behalf of the defendant which include a “petition for writ of habeas corpus.” It is alleged in that petition that “the Commonwealth cannot sustain any of the charges lodged against the petitioner because none of the victims possessed a reasonable expectation of privacy with regard to the substance of any conversation allegedly recorded by petitioner.” A hearing was held on March 10, 2014, during which Patricia Zurick, the administrative director of Nursing Services, and Detective Sergeant Christopher Vasvari of the Bethlehem Police Department testified. The Commonwealth also submitted the transcript from the preliminary hearing for consideration in evaluating the sufficiency of the evidence. Both counsel subsequently submitted written documents supporting their respective positions.

Background

On June 11, 2014, the defendant walked into Ms. Zurick’s office, unannounced, with complaints about his daughter’s care at Manor Care. He wanted his daughter transferred to a different facility. During their conversation, which lasted not more than sixty (60) minutes, the door to the office was open. The office itself is “accessible from a common hallway” and is approximately twenty-five (25) feet from the elevators. Anyone within earshot of the office could overhear the discussion between the two of them.

Ms. Zurick testified that the door remained opened because she was fearful of the defendant. She thought that by keeping the door open, other people could overhear their discussion and presumably intervene, if necessary. In fact, both Ms. Zurick and the defendant became confrontational, but the discussion ended “amicably.”

Throughout their discussion, other staff personnel were either already present or entered the office. For example, Ms. Zurick shared her office with Vivian Villanueva, who held a “staffing” position at Manor Care. Her desk was directly across from Ms. Zurick. Ms. Villanueva testified at the preliminary hearing that she was present in the office when the defendant arrived, but did not remember if she remained in the office until he departed. Susan Fisher, the Nursing Home Administrator, entered Ms. Zurick’s office from her own office because she overheard the discussion “getting out of hand and loud.” She described Ms. Zurick’s office as “open, anybody can come in but it is not an open office, you have to walk in.” At some point during the defendant’s presence in the office, Leeza Ohl, the Director of Rehabilitation, was also invited to join them. None of the Manor Care employees were aware or consented to the defendant clandestinely recording the discussions.

The entire episode came to light when the defendant forwarded three (3) DVDs to the FBI, Scranton Field Office. One of the DVDs contained the recorded conversation with Ms. Zurick and her fellow workers. The device the defendant used for recording was similar to glasses previously used by the defendant, which were described as “glasses... designed with an SD card implanted in the frame of the glasses with the capability to audio and video record through them.”

Discussion

The unlawfulness of the defendant’s recording of his conversations with the Manor Care employees is dependent upon whether the audio interception is an “oral communication” as defined by the “Wiretapping and Electronic Surveillance Control Act” (hereinafter Act). If it is an “oral communication,” then at this stage of the proceedings the prima facie threshold for violating 18 Pa.C.S. § 5730(1) would be satisfied. In Commonwealth v. Fountain, 811 A.2d 24, 25-26 (Pa. Super. 2006), the prima facie standard was explained as follows:

The Commonwealth must show sufficient probable cause that the defendant committed the offense, and the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury. When deciding whether a prima facie case was established, the evidence [must be viewed] in the light most favorable to the Commonwealth, and all reasonable inferences based on that evidence which could support a guilty verdict [must be considered].

Commonwealth v. Barnes, 14 A.3d 328, 130 (Pa. Super. 2011) quoting Commonwealth v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004)(enbanc). See also Commonwealth v. McCullough, 86 A.3d 896, 898-899 (Pa. Super. 2014); Commonwealth v. Williams, 911 A.2d 548, 550-551 (Pa. Super. 2006).

18 Pa.C.S. § 5702 defines an “oral communication” as:

Any oral communication uttered by a person possessing an expectation of privacy that such communication is not subject to interception under circumstances justifying such expectation.

It is apparent that the definition of “oral communication” does not prohibit the interception of all communications. Instead, a communication is only a prohibited oral communication when it is uttered by a person exhibiting an expectation of privacy under circumstances justifying such an expectation. See Agnew v. Depler, 717 A.2d 519, 522-523 (Pa. 1988)(Police officer’s conversations with other officers did not meet the definition of “oral communication” as officer did not possess a reasonable expectation of privacy, because squad room door was open, and all conversations could be heard in police chiefs office...). Under both state and federal law, the expectation of privacy requires more than a subjective expectation of privacy, but rather the expectation must be one that society is prepared to recognize as reasonable and legitimate. Agnew, 717 A.2d at 523; Commonwealth v. Duncan, 817 A.2d 455, 463 (Pa. 2003); Commonwealth v. Rekasie, 779 A.2d 624, 629 (Pa. 2001); Commonwealth v. Perel, 107 A.3d 185, 188-189 (Pa. Super. 2014); Office Of the Lieutenant Governor v. Mohn, 67 A.3d 123, 130 (Pa. Cmwlth. 2013); Kelly v. Borough of Carlisle, 622 F.3d 248, 257(3rd Cir. 2010); State v. Duchow, 749 NW.2d 913 (2008). The Superior Court has explained:

To satisfy the first requirement, the individual must demonstrate that he sought to preserve something as private. To satisfy the second, the individual’s expectation of privacy must be justifiable under the circumstances... In determining whether a person’s expectation of privacy is legitimate or reasonable, the totality of the circumstances must be considered and the determination will ultimately rest upon a balancing of the societal interests involved.

Commonwealth v. Prisk, 13 A.3d 526, 531 (Pa. Super. 2011).

A variety of factors have been deemed relevant in reaching that conclusion, including the “volume of the conversation; the proximity or potential proximity of others within earshot; what precautions, if any, the conversants have taken to avoid being overheard; whether society accepts those precautions as acceptable or worthy of legal recognition; the location where the conversation takes place; the capabilities of device used to record the conversation; and the nature of conduct that was intercepted.” Clifford S. Fishman and Anne T. McKenna, Wiretapping and Eavesdropping: Surveillance in the Internet Age §2.42 (3rd Ed. 2007) (hereinafter Fishman and McKenna, Wiretapping and Eavesdropping). In State v. Duchow, 749 NW.2d at 920-921 these same factors were considered in holding that the defendant’s threatening, tape-recorded statements to student on bus were not oral communications. See also Hornberger v. American Broadcasting Companies Inc., 799 A.2d 566, 623-624 (N.J. A.D. 2002) quoting Kee v. City of Rowlett, 247 F.3d at 213-215.

The appellate courts of Pennsylvania have been less specific in assessing whether the expectation of privacy was legitimate and reasonable. Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989)(“Henlen II”)(Suspect’s surreptitious recording of interview conducted by investigating officer at local prison in presence of another prison guard was not an “oral communication” in that officer had no reasonable expectation of privacy); Commonwealth v. Louden, 638 A.2d 953 (Pa. 1994)(Child day care providers had no justifiable expectation of privacy once conversations, threats, arguments, and screams became audible in adjoining home, and adjoining homeowners recording of those did not constitute “oral communication” in violation of the Act); Commonwealth v. Christopher, 620 A.2d 494 (Pa. Super. 1992) appeal denied 639 A.2d 23 (1994)(The recording of conversation between social worker and client at social worker’s office which he shared with another CYS caseworker did not constitute an oral communication because caseworker did not have a justifiable expectation of privacy); Commonwealth v. Prisk, 13 A.3d at 528-532 (The recording of conversation by victim with the defendant in visitation room at prison did not constitute an “oral communication” because defendant did not have a reasonable expectation of privacy nor was it an expectation of privacy society is prepared to recognize).

In Commonwealth v. Alexander, 708 A.2d 1251 (Pa. 1998), in which communications between patient and physician were intercepted at a workplace and not in a home, it was held that the expectations of privacy differ between the two locations.

A workplace, by its very nature, generally requires the proprietor’s interaction with other persons in order to conduct business. While the proprietor’s nature of contact with such other parties can vary in form, a workplace normally requires certain interaction with strangers or third parties over whom the proprietor has little control or about whom the proprietor knows very little beyond the nature of the business relationship...
⅜⅜⅜
[t]here may be some circumstances where this court may be willing to recognize heightened levels of expectations of privacy in the workplace, for example where the communication sought to be intercepted is strictly internal (such as communications which may arise between an employee and employer) or where the communication regards something which may otherwise be protected by common law or by statue.

Id. at 1257.

Here, as in Alexander, the defendant was under no obligation to keep his conversations with the employees of Manor Care confidential. Nothing was said by those employees to the defendant that he “should not know.” See Christopher, 620 A.2d at 496. Therefore, they had no reasonable expectation of privacy that the defendant would keep his conversations with them private.

It is undeniable that the employees at Manor Care were surprised that their conversations were recorded. However, the evaluation of the Commonwealth’s evidence is less about the employees’ subjective expectation of privacy and more about whether they had an obj ectively reasonable expectation of privacy that their conversations in an open office would not be recorded. Cressman v. Ellis, 77 Fed. Appx. 744 (2003) citing O’Connor v. Ortega, 480 U.S. 709, 718 (1987)([T]he determination of an objectively reasonable expectation of privacy is a question of law for the court, [and] it is also a highly intensive inquiry).

The totality of the circumstances, utilizing the aforementioned relevant factors, does not support the conclusion that the recorded conversations fall within the definition of “oral communication.” All of the conversations were recorded at Manor Care in Ms. Zurick’s office, which she shared with Ms. Villanueva. These conversations were held in earshot of Ms. Villanueva and the door to the office was open. Others participated in the confrontational conversations and the tone of the conversation would not lead anyone to believe that it was intended to remain private. No precautions were taken to avoid being overheard and Ms. Zurick kept the door open so others could hear in case there was a need for someone to intervene. The capabilities of the device itself are unknown, but it does not appear that other than the conversations in Ms. Zurick’s office any other conversations were recorded. Finally, the nature of the conversation intercepted pertained to the defendant’s daughter and not to any private matters relating to the Manor Care employees, and so these communications were subject to a diminished expectation of privacy.

More than twenty-five (25) years ago, Judge Beck, in Commonwealth v. Kean, recognized that the development of “sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds.” Commonwealth v. Kean, 556 A.2d 374, 384 (Pa. Super. 1989) quoting Burrows v. Superior Court of Bernardino, 529 P.2d 590, 596 (1974). She offered the admonition that “judicial interpretations of the reach of constitutional protection of individual privacy must keep pace with the perils created by these new devices.” Id. Her cautionary tale may have been aimed at the government, but as technology continues to erode personal privacy, it is not only the government that has access to “sophisticated instruments,” but also private individuals. This case demonstrates what others have said, that as “[o]ur technological powers increase, [ ] the side effects and potential hazards also escalate.” The current privacy and wiretap laws may not have anticipated that technology like spy glasses or Google Glass, which has the ability to record audio or video, would become mainstream technology.

All of these privacy concerns related to the defendant’s actions are valid. Even so, the totality of the circumstances presented in this case does not support the conclusion that the defendant violated the Act by recording his conversations with the employees of Manor Care.

The defendant is also charged under 18 Pa.C.S. § 5705(1), which in pertinent part states:

Except as otherwise specifically provided in section 5706... a person is guilty of a felony of the third degree if he does any of the following:
(1) Intentionally possesses an electronic, mechanical or other device knowing or having reason to know that the design of such devise renders it primarily useful for the purpose of the surreptitious interception of a wire, electronic or oral communication (emphasis added).

This section, which in all relevant parts mirrors 18 U.S.C.A. § 2512, prohibits devices when “the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic, or oral communication.” Such devices are sometimes referred to as “ESIDs” for “electronic and surreptitious surveillance devices.” Fishman and McKenna Wiretapping and Eavesdropping § 2.103. This provision has most often been applied to satellite-television piracy. 129 A.L.R.Fed 549, § 2[a]. See U.S. v. Harrell, 983 F.2d 36 (5th Cir. 1993); See U.S. v. Davis, 978 F.2d 415 (8th Cir. 1992); See U.S v. Lande, 968 F.2d907, 910 (9th Cir. 1992): See U.S. v. Spiawn, 982 F.2d 414 (10th Cir. 1992). Most of these cases conclude that it is “difficult to imagine any purpose for these [ ] descramblers other than the unauthorized interception of satellite television signals.” Accord.

The legislative history and relevant case law, which is not related to descramblers, points out the following: The statute was intended to focus on a relatively narrow category of devices and apparatus whose design renders them useful primarily for surreptitious listening. See S.Rep. No. 1097, 90th Cong., 2d Sess. 94-95, reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2183 [“Senate Report”]. The statute was not intended to prohibit the use of a device merely because it may be adapted to wiretapping or eavesdropping; by the same token, however, a device does not fall outside the ambit of the statute merely because it may have innocent uses. The inquiry is to be directed toward whether the device is designed in such a way that its “principal use is likely to be for wiretapping or eavesdropping.” Id. (emphasis added). See United States v. Pritchard, 745 F.2d 1112, 1114, 1122-23 (7th Cir. 1984) (Pritchard 7); see also United States v. Pritchard, 773 F.2d 873, 878-79 (7th Dir. 1985) (Pritchard II): see also United States v. Bast, 495 F.2d 138, 143 (D.C. Cir. 1974). In determining whether the primary use of a device is for wiretapping or eavesdropping, “the sort of judgment called for... in close cases ... warrants] the use of expert testimony.” Senate Report at 95, U.S. Code Cong. & Admin. News 1968, p. 2183. See United States v. Wynn, 633 F.Supp. 595, 602 (U.S.D.C. III. 1986); see also United States v. Hochman, 809 F.Supp. 202, 205 (E.D.N.Y. 1992) (The legislative histoiy and the decisions of several courts confirm that the principal concern of Congress was to prevent the use of “spike mikes, disguised microphones, and wiretaps for the purpose of invading the privacy of business and personal communication”).

Here, the device used by the defendant was not seized. However, detective Nothstein of the Carbon County District Attorney’s Office, described an incident in 2011 in which he seized glasses the defendant used to record a courtroom proceeding. It is unknown if the glasses from this incident in 2014 had all of the same features, and no expert testimony was presented regarding the glasses in this case.

Based on the evidence presented, it cannot be determined whether the glasses worn by the defendant were “primarily useful for the surreptitious interception of oral communication” or whether the recording of conversations was just another feature of the device. In that regard, Google Glass, which is a wearable computer with an optical head mounted display, has many features, including a touchpad which permits the display of search engine results, and the ability to download and run a variety of applications. The Commonwealth’s evidence in this case, based on the legislative history, caselaw, and evidence presented, fails to meet its burden to demonstrate that, whatever the capabilities of the defendant’s device, “its design renders it primarily useful for the purpose of the surreptitious interception of... oral communication.”

For all the foregoing reasons, this court is constrained to provide the defendant the relief requested in his “petition for writ of habeas corpus.”

ORDER

And now, this 20th day of April, 2015, upon consideration of the “petition for writ of habeas corpus” filed by defense counsel on January 16, 2015, the habeas corpus hearing held on March 10,2015, and consideration ofthe submissions of law by counsel for the Commonwealth and defendant;

It is hereby ordered that the “petition for writ of habeas corpus” is granted.

      . The defense, in its “brief in support of petition for writ of habeas corpus filed by defendant, John Large” refers to the item as a “digital device,” but the device itself was not introduced into evidence nor was it specifically identified.

      . 18 Pa.C.S. §5701 et. seq.

      . 18 Pa.C.S. §5703(1).

      . 18 Pa.C.S. §5705(3).

      . Commonwealth Information, ¶ 4.

      . Petition for writ of habeas corpus, ¶ 6.

      . See Commonwealth Exhibit 1.

      . Notes of Testimony Preliminary Hearing (hereinafter N.T.P.H.), pp. 20-21.

        . Id at 17.

      . Id. at 16-18.

      . Id atp. 27.

      . § 5703. Interception, disclosure or use of wire, electronic or oral communications.
      Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
      (1) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.

      . Congress intended the definition of “oral communication” to parallel the “reasonable expectation of privacy test” articulated in Katz v. United States, 389 U.S. 347, 360 (1986); see Kee v. City of Rowlett, 247 F.3d 206, 211 n.8 (5th Cir. 2001) cert. denied 122 S.Ct. 210; United States v. Larios, 593 F.3d 82, 92 (1st Cir. 2010); Deegan v. Rudman, 2011 WL 251226* 6 n.12 2011 WL 251226 (WD.Va.). Additionally, “oral communication” under the Act and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 are “virtually identical.” Commonwealth v. Deck, 954 A.2d 603, 608 (Pa. Super. 2008).

      . Other courts have also used these factors in their analysis. See Reynolds v. City and County of San Francisco, 2012 WL 1143830 *5 (N.D. Ca. 2012)(collecting cases); See also Abido v. State, 144 So.3d 594, 596 (D. FI. 2014); See also Aldrich v. Ruano, 952 F.Supp.2d 295, 302 (D. Ma. 2013); See also Perraglio v. New Mexico, 2009 WL 2392027 * 4 (D. NM 2009); See also Stinebaugh v. County of Walla Walla, 2008 WL 4809886 (E.D. Wa. 2008).

      . The Superior Court in Commonwealth v. Mclvor, 670 A.2d 697 (Pa. Super. 1996) held that communications recorded by police officer of unsuspecting motorists constituted “oral communications” because, although motorists had no expectation of privacy to statements, they had “real expectation of noninterception.” However, any reliance on Mclvor is subject to the language of the Supreme Court in Agnew v. Dupler, supra, which held that “it is not possible to have an expectation of non-interception absent an expectation of privacy.” Id. at 523.

      . More sensitive or powerful equipment would support the argument that the conversation was an “oral communication.” See Fishman and McKenna, Wiretapping and Eavesdropping, § 2.42 n.7.

      . Alvin Toffier, Future Shock 429 (1970).


author: ZULICK, J.,

text:
    Hutchings v. National Conference of Evangelical Congregational Church

      C.P. of Monroe County,
    No. 8357 CV 2014

      Emeka Igwa, for plaintiff.

      John Steidle, Sammy Y Sugiura, Gerard Karam and Christopher J. Szewczyk, for defendants.
    April 23, 2015
   ZULICK, J.,

Defendants National Conference of the Evangelical Congregational Church, (Church); Twin Pines Camp, Conference and Retreat Center (Twin Pines Camp); and Derek G. Schock have filed preliminary objections to the complaint filed by Robert Hutchings on October 8, 2014. The complaint alleges that in the summer of2003, Hutchings was a camper at the Twin Pines Camp. While attending the camp, he was sexually assaulted by defendant Schock and others in his cabin.

Defendants Church and Twin Pines Camp filed preliminary objections to the complaint on December 1, 2014. Defendant Derek Schock filed preliminary objections to the complaint on December 22, 2014. The matter was listed for argument on January 5, 2015, but was continued on plaintiff’s motion to February 2, 2015. The argument was again continued to April 6,2015, when the parties appeared for argument.

DISCUSSION

I. Preliminary Objections of the Church and Twin Pines Camp

Defendants Church and Twin Pines Camp have filed preliminaiy objections raising a demurrer to the counts of the complaint alleging vicarious liability, negligent hiring and supervision, intentional misrepresentation, negligent misrepresentation and punitive damages. Pennsylvania Rule of Civil Procedure 1028(a)(4) allows any party to file preliminaiy objections to any pleading on the grounds of “legal insufficiency of a pleading (demurrer).” Pa.R.Civ.P. 1028(a)(4). “Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” White v. PennDOT, 738 A.2d 27, 31 (Pa.Cmwlth.1999). When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. DeMary v. Latrobe Printing Co., 762 A.2d 758 (Pa. Super. 2000); Main Line Health inc. v. Medical Professional Liability Catastrophe Loss Fund, 738 A.2d 66, 68 n. 13 (Pa.Cmwlth. 1999). Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. Pacurariu v. Commonwealth, 744 A.2d 389, 391 n. 1 (Pa. Cmwlth. 2000); White, 738 A.2d at 31. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Edwards v. Germantown Hospital, 736 A.2d 612, 614 (Pa. Super. 1999). Hykes v. Hughes, 835 A.2d 382, 383 (Pa. Super. 2003).

The defendants first argue that Hutchings has failed to state a cause of action against them for vicarious liability. Hutchings contends in his claim against the church in Count IX, paragraph 65 of the complaint and in his claim against Twin Pines Camp in Count XIV, paragraph 98, that the defendants are liable for the assault on plaintiff committed by its camp counselors. Defendants cite the case of Brezinski v. World Truck Transfer, Inc., 755 A.2d 36 (Pa. Super. 2000) in support of their argument for dismissal of this claim. The Brezinski case involved a truck driver who ran his employer’s truck off the road before opening fire on random people in the area. The superior court upheld the trial court’s determination that the trucking company employer was not liable for its driver’s criminal actions:

An employer is vicariously liable for the wrongful acts of an employee if that act was committed during the course of and within the scope of employment. Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270 (1979). This liability may extend even to intentional or criminal acts committed by the employee; however if the act is done for a personal reason, or in an outrageous manner, it is not done within the scope of employment. Id; Restatement (Second) of Agency § 228 (1958). Crew’s action in this case, shooting two individuals who had no connection to the employer, was outside the scope of Crew’s employment. His actions in no way furthered the purpose of his employment, and can only be characterized as outrageous, as well as criminal. World Truck cannot be held responsible under this theory as a matter of law, and the trial court’s grant of summary judgment on this claim was proper.

Id. at 39.

Plaintiff concedes in his brief that the individual defendants’ alleged attack upon him was outside the scope of their employment with the Church and Twin Pines Camp. This objection will be sustained.

The church and Twin Pines Camp also contend that plaintiff has failed to state a cause of action for negligent hiring and supervision, intentional and negligent misrepresentation and punitive damages. As the defendants note in their brief, these counts of the complaint are dependent upon the theory that both the church and Twin Pines “knew or should have known about Schock and John Doe’s ‘criminal history and a history of rape, sexual abuse, violence, criminal acts, troubled behavior, violent propensities and other harmless, reckless, negligent and careless conduct. Complaint, ¶17; defendants’ brief, p.6. Defendants argue that although the complaint states that Schock and John Doe had “an extensive and violent criminal history, including allegations of prior rape, sexual abuse and violence, Hutchings fails to provide any evidence in support of those conclusions.” Id. Using information from a website, defendants contend that Schock’s date of birth is November 23, 1985, and that he was thus a juvenile in the summer of 2003, and would not have had a discoverable criminal record.

These arguments may have merit for purposes of a motion for summary judgment, but that is not what is before the court. For this demurrer, the court is not permitted to consider information other than that which is stated in the complaint. McCaskill v. Philadelphia Housing Authority, 615 A.2d 382 (Pa. Super. 1992). This objection will be denied.

Finally, the church and Twin Pines Camp dispute Hutchings’ request for punitive damages in Count XIII as legally insufficient under 1028(a)(4).

Punitive damages may be awarded for conduct that is outrageous because of the defendant’s evil motive or reckless indifference to the rights of others.... As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton, or reckless conduct.

Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005).

Furthermore, “this court has stressed that, when assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless, or malicious.” Id.

Thus, punitive damages are not available for Hutchings’ claims of negligence, negligent hiring or negligent misrepresentation. However, Hutchings requests punitive damages for the alleged intentional misrepresentation that the camp offered a safe environment for children, when camp officials knew or should have known of Schock’s violent propensities.

Punitive damages are awarded for “outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.” Martin v. Johns-Manville Corp., 508 Pa. 154, 172, 494 A.2d 1088, 1097-98 (1985) (emphasis in original). Plaintiff has alleged an intentional misrepresentation that rises to the level of reckless indifference to Hutchings. This preliminary objection will be denied, but punitive damages will be limited to the intentional misrepresentation count.

II. Preliminary objections of Derek Schock

Derek Schock has filed preliminary objections to the complaint’s Count III- Intentional Infliction of Emotional Distress and Count IV- Punitive Damages (mislabeled as Count III in the complaint), contending that they are legally insufficient under Pa.R.C.P. 1028(a)(4).

Hutchings alleges in Count III that “defendant recklessly and/or intentionally engaged in extreme and outrageous conduct by contacting, forcefully holding, assaulting, raping, and anally penetrating plaintiff.” Complaint, ¶36. This attack caused Hutchings “extreme emotional distress” and “severe emotional and psychological injuries.” Complaint, ¶¶36-37.

The tort of intentional infliction of emotional distress is defined as follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Restatement (Second) of Torts §46(1) (1965).

Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1998).

The superior court has noted, “[t]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Buczek v. First National Bank of Mifflintown, 531 A.2d 1122, 1125 (1987). Described another way, “[i]t has not been enough that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.” Restatement (Second) of Torts §46, comment d; Daughen v. Fox, 372 Pa. Super. 405, 412, 539 A.2d 858, 861 (1988).Hoy v. Angelone 720 A.2d 745,753 — 754 (Pa. 1998).

The alleged rape of the plaintiff as a child in his camp cabin by his older camp counselor is sufficiently outrageous that a jury might find that conduct to be atrocious and utterly intolerable in a civilized society. This objection will be denied.

Finally, Schock disputes Hutchings’ request for punitive damages under Count IV as legally insufficient under 1028(a)(4). The standard for punitive damages is detailed supra. Again, plaintiff has alleged that Schock’s conduct was intentional, outrageous, and done with an evil motive. This preliminary objection will be denied.

ORDER

And now, this 23rd day of April, 2015, upon consideration of the preliminary objections of defendants National Conference of the Evangelical Congregational Church; Twin Pines Camp, Conference and Retreat Center and Derek Schock, and following argument, it is ordered as follows:

1. The preliminary objections of defendants National Conference of the Evangelical Congregational Church and Twin Pines Camp are granted in part.

a. Plaintiff’s claim asserting vicarious liability against these defendants for the alleged actions of defendant Schock, stated in Count IX, paragraph 65 of the complaint and in Count XIV, paragraph 98 is stricken.
b. Plaintiff’s claim for punitive damages against these defendants is dismissed except in conjunction with the claim for intentional misrepresentation.

2. The preliminary objections of defendant Derek Schock are denied.

3. Plaintiff shall file an amended complaint within twenty days.