author: SIBUM, J.,

text:
    Nazareth Mut. Ins. Co. v. Velez
    C.P. of Monroe County,
    no. 530 CV 2009.

      November 29, 2010

      Gary A. Brienza, for plaintiff.

      Lucille Marsh and Arlindo B. Araujo, for defendants.
   SIBUM, J.,

This matter comes before the court on plaintiff’s motion for summary judgment. Plaintiff, Nazareth Mutual Insurance Company, commenced this action seeking declaratory relief with respect to its duty to defend and/or indemnify defendant Ray A. Velez under a homeowner’s insurance policy issued by plaintiff to Ray Velez and his wife, Maria E. Velez. Plaintiff filed a complaint against all defendants on January 21, 2009. Defendant Martha Guardiola, individually and as Executrix of the Estate of Armando A. Guardiola, filed an answer and new matter on July 29, 2009. Defendants Ray Velez, Maria Velez and Velez Transport Services did not file an answer to plaintiff’s complaint. Plaintiff filed a reply to defendant Guardiola’s new matter onAugust 19, 2009. Plaintiff then filed a motion for summary judgment onAugust 19, 2010. Both plaintiff and defendant Guardiola filed briefs and appeared for oral argument heard before this court on November 1, 2010. Counsel for defendants Ray Velez, Maria Velez and Velez Transport did not attend nor provide any argument or documentation to substantiate their positions. After review of the pleadings of record, we are now prepared to decide this matter.

DISCUSSION

Pennsylvania Rule of Civil Procedure §1035.2 permits the trial court to dismiss an action after the close of pleadings where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment may only be 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. Brecker v. Cutler, 578 A.2d 481 (Pa. Super. 1990).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 369, 562 A.2d 279, 280 (Pa. 1989). Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter summary judgment. Basile v. H&R Block, 563 Pa. 359, 761 A.2d 1115 (Pa. 2000). The trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The moving party bears the burden of proving that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (Pa. 1973). Failure to allege such specific facts will result in summary judgment, if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Overly v. Kass, 554 A.2d 970 (Pa. Super. 1989). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982). The court must ignore contested facts contained in the pleadings and restrict its view to allegations in the pleadings that are uncontroverted and to material filed in support of and in opposition to a motion for summary judgment. Nationwide Mutual Ins. Co. v. Nixon, 682 A.2d 1310, 1313 (Pa. Super. 1996), allocator denied, 548 Pa. 619, 693 A.2d 589 (Pa. 1997) (citation omitted).

Prior to the instant action, defendants Ray Velez and Velez Transport Services were sued by Martha Guardiola (“Guardiola”), in both her individual capacity and as executrix of the estate of Armando Guardiola (“decedent”), for damages arising out of the killing of decedent. In the case now before the court, plaintiff Nazareth Mutual Insurance Company, who issued a homeowner insurance policy to defendants Ray and Maria Velez, has filed this action seeking declaratory relief excusing it from defending Ray Velez in the lawsuit file by Guardiola. Plaintiff contends that Ray Velez engaged in a criminal act which makes him ineligible for liability coverage under his homeowner’s insurance policy. Specifically, plaintiff asserts that the policy provides liability coverage for the Velezes for bodily injury caused by an insured but that they are excluded from coverage because Ray Velez was convicted of the voluntary manslaughter of decedent. Therefore, plaintiff asserts that it has no duty to defend or indemnify defendants against litigation commenced by Guardiola for negligence.

In order to render our decision on plaintiff’s motion for summary judgment, we must review the facts in the light most favorable to the non-moving party which reveal the following. Plaintiff issued an insurance policy to defendants Ray and Maria Velez for the period of June 30, 2007 through June 30, 2008 which provided homeowner’s insurance to defendants for their home in Stroudsburg, Pennsylvania. [Complaint, ¶6; Guardiola answer, ¶6.] Ray Velez is the president and/or majority shareholder of Velez Transport Services, Inc.; however, Velez Transport Services was not named as an insured party. [Complaint, ¶7, 8; answer, ¶7,8.]

On August 25, 2006, Ray Velez was at his home when decedent and two men, who all had an existing business relationship with Velez, traveled to Velez’s residence to collect payment for two completed trucking trips and to discuss worker’s compensation issues. [Complaint, ¶9-12; answer, ¶9-12.] Upon learning that decedent was coming to Velez’s home, Velez retrieved a sawed-off pistol-grip shotgun, loaded it with one shell, chambered the round, and placed it in his computer desk drawer. [Complaint, ¶14; answer, ¶14.]

Upon arrival, the men entered Velez’s residence and Velez informed decedent that he was not welcome in his home. [Complaint, ¶15, 16; answer, ¶15, 16.] Despite the statement, decedent did not leave and engaged in discussion about the worker compensation issues. [Complaint, ¶17, 18; answer, ¶17, 18.] During this heated conversation, Velez obtained the shotgun from the drawer and shot decedent in the chest from approximately 6 to 8 feet away. [Complaint, ¶21, 25; answer, ¶21, 25.] Velez was arrested and charged with an open count of criminal homicide and one count of prohibited offensive weapons. [Complaint, ¶31; answer, ¶31.] After a bench trial on May 29,2008, the Honorable Ronald E. Vican of this court found Velez guilty of one count of voluntaiy manslaughter and one count of possession and use of a prohibited offensive weapon. [Complaint, ¶38; answer, ¶38.]

On November 26, 2007, Guardiola, individually and as executrix of the estate of Armando Guardiola, commenced litigation against defendants Ray Velez and Velez Transport Services, Inc. [Complaint, ¶39; answer, ¶39.] The complaint in the underlying lawsuit alleges that Ray Velez was negligent in his use of excessive and deadly force, in failing to call the police and not taking an action short of deadly force against the decedent, and in failing to warn the decedent to leave the residence before he used deadly force. [Complaint, ¶40; answer, ¶40.] Plaintiff has since filed a complaint in regard to its duty to defend or indemnify Ray Velez under his insurance policy in connection with this civil action.

Plaintiff claims that the insurance policy at issue provides for liability coverage for Ray and Maria Velez for bodily injury caused by an insured. [Complaint, ¶43; answer, ¶43.] However, plaintiff argues that the policy has exclusions that apply to liability coverage, including bodily injury that is a result of a criminal act of an insured, or the result of an intentional and malicious act by or at the direction of an insured. [Complaint, ¶44; answer, ¶44.] Plaintiff contends that Velez’s criminal actions make the exclusion contained within the policy applicable thereby excusing plaintiff from having to defend or indemnify the Velezes in the Guardiola action. [Complaint, ¶51-53, answer, ¶51-53.] Plaintiff filed a motion for summary judgment claiming that there is no coverage under the homeowner’s insurance policy for any claims or damages arising from the August 25,2006 incident and sought from the tort action instituted by Guardiola.

Interpretation of an insurance contract is a matter of law performed by a court rather than a jury. Madison Construction Co. v. Harleysville Ins. Co., 557 Pa. 595, 605, 735 A.2d 100, 106 (Pa. 1999). In interpreting an insurance contract, the court’s paramount role is “to ascertain the intent of the parties as manifested by the language of the written instrument.” Id.; see also Standard Venetian Blind v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (Pa. 1983). Where the language of the insurance contract is clear and ambiguous, effect must be given to the plain meaning of that language. Madison, 735 A.2d at 106.

In this case, defendants’ homeowner’s insurance policy provides in relevant part as follows:

Principal Coverages - Liability And Medical Payments To Others
Coverage L - Personal Liability - “We” pay, up to “our” “limit”, all sums for which an “insured” is liable by law because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies. “We” will defend a suit seeking damages if the suit resulted from “bodily injury” or “property damage” not excluded under this coverage. “We” may make investigations and settle claims or suits that “we” decide are appropriate. “We” do not have to provide a defense after “we” have paid an amount equal to “our” “limit” as a result of a judgment or written settlement.
Coverage M - Medical Payments To Others - “We” pay the necessary medical expenses if they are incurred or medically determined within three years from the date of an accident causing “bodily injury” covered by this policy.
Exclusions that apply to liability coverages “We” do not pay for “bodily injury” or “property damage” resulting from one or more of the following excluded “occurrences”, regardless of other causes or “occurrences” that contribute to or aggravate the “bodily injury” or “property damage”, whether such cause or “occurrences” act to produce the “bodily injury” or “property damage” before, at the same time as, or after the excluded “occurrence”.
1. Exclusions That Apply to Coverages L and M - This policy does not apply to:
i. “bodily injury” or “property damage”:
(1) Which is expected by, directed by, or intended by an “insured”;
(2) That is the result of a criminal act of an “insured”; or
(3) That is the result of an intentional and malicious act by or at the direction of an ‘insured”.
This exclusion applies even if:
(1) the “bodily injury” or “property damage” that occurs is different than what was expected by, directed by, or intended by the “insured”, or
(2) the “bodily injury” or “property damage” is suffered by someone other than the person or persons excepted by, directed by, or intended by the “insured”.

Here, Ray Velez was convicted after bench trial of voluntary manslaughter in the killing of decedent. The crime of voluntary manslaughter is set forth by statute, in pertinent part, as follows:

(a) General rule. - Aperson who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable. - A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable. 18 Pa.C.S.A. §2503(a)-(b).

After the bench trial, Judge Vican provided the following explanation in his adjudication and verdict as to the reasons for finding Velez guilty of voluntary manslaughter:

To convict defendant of third-degree murder, the Commonwealth must establish that he committed an unlawful killing with malice. The victim’s death is properly characterized as an unlawful killing and malice can be inferred from defendant discharging a sawed-off shotgun into the victim’s chest. However, in certain situations murder may be reduced to voluntary manslaughter based upon the circumstances surrounding the killing. For example, an intentional killing will be treated as voluntary manslaughter if committed as a result of defendant’s unreasonable belief in need to utilize deadly force in self-defense. This scenario is often referred to as “imperfect self-defense.”
An imperfect self-defense claim is “imperfect in only one respect - an unreasonable rather than a reasonable belief that deadly force was required to save the actor’s life.
To establish self-defense, as set forth by 18 Pa.C.S.A. §505, the defendant must not only show that he was protecting himself against the use of unlawful force, but establish that he was free from fault in provoking or continuing the difficulty which resulted in the killing.
Although defendant was not justified in using deadly force against the victim, it is not inconsistent with the evidence to conclude that in the heat of the moment he believed he was alleviating a perceived threat to himself and his daughter. It was the victim, rather than defendant, who escalated the confrontation by remaining in defendant’s home after defendant made it clear he was not welcome.
These circumstances, which were not of defendant’s creation, were of such dimension that we cannot find defendant’s conduct, albeit unreasonable, to be more than a reaction to an immediate perceived threat. Because defendant proceeded to act upon that unreasonable belief, we cannot convict defendant of third-degree murder.
Voluntary manslaughter is a killing committed without malice, in the heat of passion or under an unreasonable belief that it was justified.
When the victim and his two companions showed-up uninvited at defendant’s home in an attempt to intimidate defendant into meeting their monetary demands, defendant misinterpreted the situation and used deadly force under circumstances that did not justify the use of such force. Because defendant killed the victim while acting upon an unreasonable belief that the circumstances justified his use of deadly force, we find defendant guilty, pursuant to 18 Pa.C.S.A. §2503(b), of voluntary manslaughter. Commonwealth v. Velez, No. 1268 CR 2006 (C.P., Monroe, May 29, 2008)(citations omitted).

Having been convicted of the crime of voluntary manslaughter by this court in regards to the event that occurred on August 25, 2006, it has been established that the “bodily injury” caused to decedent was the result of a criminal act by the insured, Ray Velez. The language of the insurance policy provides that the policy does not apply to bodily injury that is the result of a criminal act of an insured. Therefore, pursuant to the exclusions provided for in the policy, the bodily injuries caused by the criminal acts of Ray Velez are not covered under his homeowner’s insurance policy.

As stated above, the language of the insurance policy provides that the policy does not apply to bodily injury which is intended by an insured or that is the result of a criminal act of an insured or that is the result of an intentional and malicious act by the insured. We interpret this language to mean that only one exclusion must be satisfied to bar Ray and Maria Velez from liability coverage. Having determined that the Velezes are excluded based on Ray Velez committing a criminal act, we need not analyze the remaining exclusions. However, in the interest of judicial economy, we will briefly discuss plaintiff’s remaining argument as to Ray Velez’s intent.

Plaintiff also claims in its motion for summary judgment that the conviction for voluntary manslaughter acts as collateral estoppel which would bar any of the defendants from relitigating the issue of intent in a subsequent civil action, such as the one filed by Guardiola. Plaintiff argues that Ray Velez was convicted of voluntary manslaughter when this court concluded that he intended the actions which resulted in the death of decedent and therefore, there is no basis for Velez to now contend that his actions were unintentional. Guardiola, on the other hand, contends that the court explicitly ruled that Ray Velez did not act intentionally or maliciously when it rejected the charge of third degree murder and correctly characterized Velez’s actions as unreasonable self-defense. Thus, Guardiola argues that Velez’s actions were negligent by definition and that the policy exclusion, therefore, does not apply.

This issue of Velez’s intent to harm decedent was thoroughly addressed by Judge Vican in his adjudication and verdict preceding Ray Velez’s bench trial. In his opinion and order, Judge Vican found Ray Velez guilty of an intentional killing. Judge Vican found that the defendant’s intentional killing of the decedent was required to be treated as voluntary manslaughter since it was committed as a result of defendant’s unreasonable belief in the need to utilize deadly force in self-defense. As such, both Judge Vican’s opinion and order and the concise language of the insurance policy support our conclusion that Ray Velez’s actions constitute an exclusion under this policy.

Having determined that Ray Velez’s actions have excluded him and his wife from coverage under their homeowner’s insurance policy, we find that no material issues of fact remain as to this case. Plaintiff’s motion for summary judgment will be granted.

Accordingly, we enter the following order.

ORDER

And now, November 29, 2010, plaintiff’s motion for summary judgment is granted.

      . See Court of Common Pleas of Monroe County docket number 10365 CV 2007.

      . Plaintiff attached to its complaint the defendants’ homeowner’s insurance policy for the period of June 30, 2007 through June 30, 2008, a period after the August 25, 2006 incident occurred. However, we note that this policy provides that it is a renewal from the previous policy period which would have encompassed the date of the incident. Since none of the parties have raised this as a potential issue in an answer to the complaint, we believe this policy to be the same policy as was in effect at the time of the occurrence. As such, we will rely upon the terms and definitions as presented in the policy attached to plaintiff’s complaint.

      . Reference to the answer and new matter filed by defendant Martha Guardiola, individually and on behalf of decedent Armando Guardiola, will be cited as [Answer, ¶_.] Furthermore, in defendant Guardiola’s answer, Guardiola either affirmatively admits the averments or provides the following general response: “Defendants Guardiola and the Estate of Guardiola, neither admit nor deny and leave to Plaintiff its burden of proof at the time of trial.” Such responses do not specifically deny plaintiff’s averments as required by the rules of court. Therefore, Guardiola has effectively admitted every allegation of the complaint by either expressly admitting plaintiff’s allegations or by failing to articulate specific reasons as to why the allegations are not true. By failing to counter the averments outlined in the complaint and supported by the documentation attached to plaintiff’s motion for summary judgment, defendant has merely rested upon the pleadings.

      . Criminal homicide is defined by statute as follows: “A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.” 18 Pa.C.S.A. §2501(a). “Criminal Homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.” 18 Pa.C.S.A. §2501 (b).


source: Caselaw Access Project

author: CHESLOCK, S.J.,

license: Public Domain

text:
    Commonwealth v. Klinger

      C.P. of Monroe County,
    no. 109 CR 1972.

      December 10, 2010

      Bradley A. Schmidt, for Commonwealth.

      Jason M. Leon, for defendant.
   CHESLOCK, S.J.,

This matter comes before the court on defendant Richard Calvin Klinger’s petition for post conviction relief (“PCRA petition”). In October 1971, the commonwealth charged defendant with the murder of Regina Prosser. Defendant was certified as an adult in this court, pled guilty to a general murder charge, and requested a degree of guilt hearing before a three judge panel. On February 9, 1972, Judges Williams, Davis, and Little found defendant guilty of first degree murder and sentenced him to a term of life imprisonment. At the time of sentencing, defendant was seventeen years old.

The court denied defendant’s motion for reconsideration of verdict on July 3, 1973. The Supreme Court of Pennsylvania affirmed this court’s judgment of sentence by opinion dated May 13, 1975. Commonwealth v. Klinger, 461 Pa. 606, 337 A.2d 569 (1975). Defendant filed multiple Post-Conviction Hearing Act petitions (“PCHA petition”) which Judge Williams ultimately dismissed on September 7, 1982. Judge Williams refused to find defendant’s trial counsel ineffective and concluded that the court did not err when it refused to suppress inculpatory statements made by defendant. The Superior Court of Pennsylvania affirmed denial of defendant’s PCHA petition on May 11, 1984.

Defendant filed a pro se PCRA petition on June 28, 2010 and this court appointed Jason M. Leon, Esquire counsel for defendant. Defendant and his counsel contend that defendant is eligible for relief based on the United States Supreme Court’s recent holding in Graham v. Florida, 130 S.Ct. 2011 (2010). Defendant cites the court’s holding in Graham — that sentences of life imprisonment without the possibility of parole for juvenile, non-homicide offenders violate the eighth amendment’s prohibition of cruel and unusual punishment — and argues that his sentence violates the United States and Pennsylvania Constitutions. Therefore, defendant claims, he is currently serving an illegal and unconstitutional sentence and is entitled to relief under the PCRA statute. The court held a hearing on November 18, 2010, and we are ready to decide this matter.

Pennsylvania’s Post-Conviction Relief Act, section 9543, provides in relevant part:

(a) General rule. - To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of this commonwealth and is at the time relief is granted:
(i) currently serving a sentence of imprisonment, probation or parole for the crime;
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the constitution of this commonwealth or the constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(vii) The imposition of a sentence greater than the lawful maximum.
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel. 42 Pa. C.S. § 9543(a). See also Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786 (2008).

Mr. Klinger is currently incarcerated at SCI-Dallas for a term of life imprisonment, and he bases the instant PCRA petition on the Supreme Court’s recent decision in Graham v. Florida. He therefore satisfies elements (1), (3), and (4) of Section 9543(a). We must only decide, then, whether the Supreme Court’s recent pronouncement in Graham renders Mr. Klinger’s sentence greater than the lawful maximum and/or unconstitutional under the Pennsylvania or United States Constitutions.

In Pennsylvania, “[a] person who has been convicted of a murder of the first degree...shall be sentenced to death or to a term of life imprisonment....” 18 Pa. C.S. § 1102(a) (1). Under this statute, a court may not impose a lesser sentence than death or life imprisonment for first degree murderers. Id. Additionally, “the statute unequivocally bars all parole for first degree murderers whether the sentence is life or death.” Commonwealth v. Yount, 615 A.2d 1316 (Pa. Super. 1992). A trial court considering a PCRA petition has no authority to modify a sentence where the sentence, as it stands, is not illegal. Commonwealth v. Payne, 797 A.2d 1000 (Pa. Super. 2002).

Based on Section 1102(a)(1) and corresponding Pennsylvania case law, we hold that Mr. Klinger is not presently serving an illegal sentence greater than the lawful maximum. On the contrary, the trial court sentenced Mr. Klinger to a term of life imprisonment in line with governing statutory authority, and we may not reconsider his sentence on this basis.

Section 9543(a)(2)(i) provides for relief under the PCRA statute if the petitioner can prove constitutional violations which undermined the fact-finding process to such an extent that no reliable adjudication of guilt or innocence could have taken place. See 42 Pa. C.S. § 9543(a)(2)(i). Courts in Pennsylvania have granted PCRA petitions in various cases which suggest possible constitutional infirmities. See Commonwealth v. Smith, 717 A.2d 1032 (Pa. Super. 1998) (reversing trial court’s denial of defendant’s PCRA request, without a hearing, when defendant was denied right to counsel when pleading guilty and when guilty plea colloquy was “marginal at best”); Commonwealth v. Galloway, 640 A.2d 454 (Pa. Super. 1994) (granting defendant new trial because commonwealth failed to disclose its key witness’ recollection had been hypnotically refreshed prior to trial); Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975) (vacating order dismissing defendant’s PCHA petition when police refused to take defendant to the victim upon request, effectively precluding defendant his right to confront adverse witnesses, when victim died days after request for confrontation).

In the instant PCRA petition, defendant contends that his sentence of life without the possibility of parole is unconstitutional in light of the Supreme Court’s recent pronouncement that such life sentences, as applied to individuals sentenced as minors for non-homicide crimes, violate the Eighth Amendment’s protection against cruel and unusual punishment, applied to the states through the Fourteenth Amendment.

As stated above, individuals sentenced to first degree murder in Pennsylvania shall be sentenced to death or life imprisonment. 18 Pa. C.S. § 1102(a)(1). Pennsylvania courts have consistently read “life imprisonment” in the statute to mean life imprisonment without the possibility of parole. See Commonwealth v. Trivigno, 561 Pa. 232, 750 A.2d 243 (2000); Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344 (1998); Commonwealth v. Marrero, 546 Pa. 596, 687 A.2d 1102 (1996). In Commonwealth v. Button, 481 A.2d 342 (Pa. Super. 1984), Judge Tamilia explained the relationship between life sentences and the possibility of parole in Pennsylvania:

[A] life sentence is precisely that, for life....Life sentences, whether imposed singly or in multiples, have no minimum....Once sentence is pronounced, the length of the sentence effectively passes from the ambit of judicial consideration of the executive department, regardless of the wording of the sentence order. Parole, or more properly commutation, is neither a right of the prisoner nor a prerogative of the court, but is a matter within the administrative purview of the Board of Parole. Button, 481 A.2d at 346. (internal citations omitted)

Article IV, Section 9 of the Pennsylvania Constitution provides that the Board of Pardons hears prisoners’ applications for commutation of sentence; if the board recommends commutation, the application is sent to the governor for a final determination. See also 71 P.S. § 299. Pennsylvania’s parole system provides an incentive to prisoners to reform themselves to earn their freedom in society. Hennessey v. Pennsylvania Bd. of Pardons, 655 A.2d 218 (Pa. Cmwlth. 1995).

In Graham v. Florida, 130 S. Ct. 2011 (2010), decided May 17, 2010, the United States Supreme Court held that the Eighth Amendment categorically prohibits life sentences without the possibility of parole for juveniles convicted of non-homicide offenses. The court noted that juvenile offenders differ from adults in many critical respects. Id. at 2026-27.

Compared to adults, juveniles exhibit a “lack of maturity and an underdeveloped sense of responsibility” and “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Id. at 2026. Additionally, juveniles’ characters are “not as well formed” as adults’. Id. In light of the tremendous psychological growth that takes place between adolescence and adulthood, the court wrote: “[a] juvenile is not absolved of responsibility for his actions, but his transgression ‘is not as morally reprehensible as that of an adult.’” Id. (internal citations omitted)

The court considered the various purposes of incarceration and asserted that life sentences without the possibility of parole for juvenile, non-homicide offenders do not serve any legitimate penological goals, including retribution, rehabilitation, incapacitation, and deterrence. Id. at 2028-30. The court also noted that life without parole is an “especially harsh” punishment for a juvenile because, under this sentence, “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.” Id. at 2028.

The Eighth Amendment, the court asserted, requires that states provide their prisoners “some meaningful opportunity” to be released back into society. Id. at 2030. The court carefully noted, however, that the Eighth Amendment does not require that all juvenile non-homicide offenders actually obtain release:

Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid states from making the judgment at the outset that those offenders never will be fit to reenter society. Id.
Notably, the court did not discuss the constitutionality of life sentences without the possibility of parole for inmates guilty of homicide crimes committed as juveniles.

The court granted Mr. Klinger a hearing on November 18, 2010, in which to hear the merits of his PCRA petition. The purpose of the hearing was to determine whether Mr. Klinger’s sentence of life imprisonment was illegal or unconstitutional in light of the Supreme Court’s recent Graham decision. Most of Mr. Klinger’s testimony at the hearing was irrelevant to the instant petition because it did not address the underlying merits of his claim. Nevertheless, his testimony was enlightening to the court.

At the hearing, Mr. Klinger recounted the circumstances of his crime and listed his in-prison activities over the past thirty-nine years. While incarcerated, he received his GED, an Associate Degree in Business Administration, a Medical Assistant degree, and Red Cross certification. He stressed that he would pursue more advanced educational degrees but for regulations which prohibit state and federal funding for education for inmates serving life sentences. Mr. Klinger became a Certified Laubach Literacy tutor in 1988 and served as Secretary, Vice President, and Student/ Tutor Coordinator for the SCI-Dallas Literary Council.

According to the uncontroverted testimony, Mr. Klinger has also dedicated much time and effort to volunteer work with the Centurion Jaycees. He was elected President of the local chapter in 1977, and assumed leadership positions within various committees, including the Muscular Dystrophy Fund-Raising Drive, the Centurion Jaycee Newsletter, and the Jaycee Education Committee. Mr. Klinger also instructed Jaycee-sponsored classes in Personal Dynamics, Leadership Dynamics, Communications Dynamics, and Genealogy. He received multiple awards from the Jaycees for his dedicated service, including a Certificate of Award for Outstanding and Meritorious Service in 1990. In a similar vein, Mr. Klinger served as Treasurer of the LIFE Association for inmates serving life sentences and as President of the SCI-Dallas chapter of Bread for the World, a national organization that supports legislation to combat poverty and hunger around the world. Additionally, he is an active member of the Protestant community in prison and currently serves on the church’s Missions Committee.

Mr. Klinger has also maintained steady employment throughout his time in prison. He began as a library assistant where he established a card catalog system for the prison library. He worked as a test proctor and teacher’s aide where he tutored students working towards their GED. He moved to the prison’s Medical Department where he served as a hospital clerk and X-ray technician’s assistant. While in the Medical Department, Mr. Klinger established and maintained a Tickler file system. After a short stint with the prison’s Chaplaincy Program, he began working in the Education Department. He has acted as Clerk/Data Entry Operator in that department continually since 1988.

Mr. Klinger also testified regarding his history of commutation applications. Specifically, he has filed six applications for commutation of sentence during his time in prison; three of the six applications were recommended by the Board of Pardons and forwarded to the governor for consideration. Former Governor Casey denied all three applications for commutation, in 1989, 1991, and 1993. In 2003, Mr. Klinger was denied a merit review hearing on his application for commutation, even though his previous three petitions were all recommended by the Board of Pardons.

Despite the foregoing, we have no choice but to dismiss Mr. Klinger’s PCRA petition for the following reasons. The PCRA statute, 42 Pa. C.S. § 9543(a), clearly sets forth discrete bases for post-conviction relief; here, the defendant relies on Sections 9543(a)(2)(i) and (vii) to establish his right to relief. As noted above, the sentencing statute does not permit a court in Pennsylvania from imposing a lesser sentence than life imprisonment for first degree murderers. See 18 Pa. C.S. § 1102(a)(1); Yount, 615 A.2d at 1321. Therefore, Mr. Klinger’s sentence of life imprisonment is not an illegal sentence warranting post-conviction relief as contemplated by Section 9543(a)(2)(vii).

Moreover, the cases in which courts have granted PCRA petitions because of constitutional violations offer no guidance for the determination at hand. Mr. Klinger bases his PCRA petition on the Supreme Court’s recent decision in Graham v. Florida, and Pennsylvania courts have yet to develop any meaningful precedent under this decision. A plain reading of the court’s opinion, however, demonstrates that Mr. Klinger’s reliance on the decision is misplaced. The court in Graham only held unconstitutional sentences of life imprisonment without the possibility of parole for juveniles convicted of non-homicide crimes. Graham, 130 S. Ct. at 2034. The defendant was convicted of first degree murder, a homicide, in 1972. The Graham decision does not apply to Mr. Klinger’s sentence, and we cannot grant his PCRA petition on this basis.

Additionally, the defendant contested his first degree murder conviction via direct appeal, Commonwealth v. Klinger, 461 Pa. 606, 337 A.2d 569 (1975). The PCRA statute, therefore, bars relief under all other bases for post-conviction relief as previously litigated. See 42 Pa. C.S. § 9543(a)(3). Any post-conviction challenges besides those based on new case law are otherwise time-barred by the filing requirements in the statute. 42 Pa. C.S. § 9545(b).

In light of our inability to grant defendant’s petition for post-conviction relief, we take this space to make certain observations about Mr. Klinger and life sentences without the possibility of parole for juveniles, generally. In the court’s view, the United States Supreme Court should extend the Graham decision to encompass inmates, like Mr. Klinger, serving life sentences without the possibility of parole for homicide crimes committed as juveniles. We do not mean to say that all such inmates should be released on parole at some point during their lives; these inmates, however, deserve to retain a channel through which rehabilitated prisoners may obtain relief. The reasoning in Graham regarding juveniles’ lessened culpability due to “lack of maturity and underdeveloped sense of responsibility” applies equally to juveniles serving life sentences without parole for non-homicide crimes as for homicide crimes. See Graham, 130 S. Ct. at 2026. The court acknowledged that “[jjuveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id. According to that logic, juveniles who commit homicides are capable of change to the same extent that juveniles who commit other crimes are capable of meaningful change.

At the hearing on November 18, 2010, Mr. Klinger detailed his academic, emotional, and spiritual development from the time he entered prison as a seventeen year-old runaway to the present day. He testified that, as a seventeen year-old, he was self-centered, impulsive, and generally aimless. With nothing but prison time on the horizon, he decided to change for the better. He dedicated himself to learning and obtained the most advanced degree available. He became a leader within community volunteer organizations like the Jaycees, SCI-Dallas Literacy Council, and Bread for the World, and he maintained steady employment throughout his almost forty years in prison. Mr. Klinger was recommended for commutation three times by the Board of Pardons based on his exemplary record while in prison, but his application was denied by Governor Casey on each occasion. We feel that an inmate like Mr. Klinger — by all accounts a model prisoner — ought to have a meaningful opportunity to obtain release from prison through the parole process. Although Mr. Klinger is ineligible for parole, per se, we urge both the Board of Pardons and the governor to seriously consider any future applications Mr. Klinger might make for commutation of his sentence.

Pennsylvania sentences more juveniles to life sentences without the possibility of parole than any other state in the country. About 450 inmates in our prisons are serving sentences of life without parole for crimes committed as juveniles. Approximately 2,500 inmates across the country are serving similar sentences, so Pennsylvania houses nearly 20 percent of those serving life sentences without parole for crimes committed as juveniles. See “Juvenile Life Without Parole,” Religion and Ethics News Weekly (Jan. 30, 2009), available at http://www.pbs. org/wnet/religionandethics/episodes/january-30-2009/ juvenile-life-without-parole/2081/; see also “The Rest of Their Lives: Life Without Parole for Juvenile Offenders in the United States,” Human Rights Watch (Oct. 11, 2005). Furthermore, the United States sentences more juveniles to life without parole than any other nation in the world; therefore, Pennsylvania leads the nation, and the world, in a sentencing practice almost universally condemned. See Karen Heller, “Life Terms for Juveniles?,” Philadelphia Inquirer (Jul. 18, 2010).

House Bill 1999 currently sits before the state legislature. The bill would abolish life without parole sentences for inmates convicted as juveniles and allow prisoners to apply for parole beginning at age 31, and every three years thereafter. Under the bill, current inmates could appeal for resentencing. Id. We recognize that our sentencing practices are out-of-step with most of the country, and the world, and hope that the legislature reforms juvenile criminal sentencing along these lines. As the court wrote in Graham v. Florida:

Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life’s end has little incentive to become a responsible individual. Graham, 130 S. Ct. at 2032.

We wholeheartedly encourage the legislature to rethink categorical imposition of life without the possibility of parole for all offenders sentenced as juveniles.

We feel compassion for Mr. Klinger. While he committed a heinous crime as a teenager, for which he must pay, he is clearly a different person now than at seventeen. Based on his steadfast dedication to emotional, academic, and spiritual growth, we recommend that the Board of Pardons and the governor seriously consider Mr. Klinger a candidate for commutation of sentence, if and when he chooses to file another application. We also believe, in light of juvenile sentencing practices across the country and throughout the rest of the world, that the Supreme Court should extend the holding in Graham v. Florida to encompass inmates serving life sentences without the possibility of parole for homicide crimes committed as juveniles. Under the post-conviction relief statute, 42 Pa. C.S. § 9543(a), and the Graham decision, however, we cannot grant Mr. Klinger’s requested relief.

Accordingly, we enter the following order.

ORDERED

And now, December 10, 2010, after hearing and review of briefs submitted, it is hereby ordered as follows:

1. Defendant’s petition for post conviction relief is denied
2. Defendant is advised that he has thirty (30) days from the date of this order in which to file an appeal with the Superior Court of Pennsylvania.
3. The clerk of courts shall serve a copy of this opinion and order upon the defendant at the SCI-Dallas correctional facility by certified mail return receipt requested. This service shall be in addition to the usual service upon all counsel of record.


author: MILLER, J„

text:
    Muschlitz Excavating, Inc. v. LTS Dev., LLC

      November 17, 2010
    C.P. of Monroe County,
    no. 7571 CIVIL 2010.

      Victor E. Scomilio, for plaintiff.

      Domenic P. Sbrocchi, for defendant.
   MILLER, J„

In May of 2008, Muschlitz Excavating, Inc. (“Muschlitz”) entered into an agreement to perform site work for LTS Development, Inc. (“LTS”) on a property known as Water Gap Preserve at Hidden Lake, in Middle Smithfield Township, Monroe County, Pennsylvania. The contract signed by LTS, as owner, and Muschlitz, as contractor, incorporated American Institute of Architects Document A201-1997, General Conditions of Contract for Construction (“AIA Document”) by reference. The contract also named the engineer and surveyor associated with the project, but did not identify an architect for the site work.

On August 12, 2010, Muschlitz filed a complaint with the court, alleging that LTS owed over $330,000 in payments under the terms of the contract. LTS raised preliminary objections to the complaint on August 31, 2010, and argued that the arbitration provision of the AIA document dictated that the parties submit the dispute to arbitration. At the same time, Muschlitz filed a request for production of documents from LTS; LTS responded with a motion for protective order which sought to narrow the scope of Muschlitz’s request.

We consolidated these arguments and, after review of briefs submitted and oral arguments, we dismiss LTS’s preliminary objections to Muschlitz’s complaint but grant LTS’s motion for protective order without prejudice, and we direct Muschlitz to narrow the scope of its request for production of documents.

LTS filed preliminary objections on the basis that the arbitration provision in the AIA document, incorporated into the May 23, 2008 contract by reference, directs that the parties first try to resolve any disputes through mediation, and if not successful, through binding arbitration. Whether an agreement to arbitrate disputes exists is a question of law for the court to decide. Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635 (Pa. Super. 1998); Emlenton AreaMun. Auth. v. Miles, 548 A.2d 623 (Pa. Super. 1988). Courts employ well-settled principles of contract interpretation to determine whether an agreement to arbitrate exists. Neuhard v. Travelers Ins. Co., 831 A.2d 602 (Pa. Super. 2003); Midomo Co., Inc. v. Presbyterian Housing Dev. Co., 739 A.2d 180 (Pa. Super. 1999). The fundamental rule when construing a contract is to ascertain and give effect to the intentions of the parties. Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 777 A.2d 418 (2001); Felte v. White, 451 Pa. 137, 302 A.2d 347 (1973). Under ordinary principles of contract interpretation, the agreement is to be construed against its drafter. Rusiski v. Pribonic, 511 Pa. 383, 515 A.2d 507 (1986); Village Beer and Beverage, Inc. v. Vernon D. Cox and Co., Inc., 475 A.2d 117 (Pa. Super. 1984).

LTS directs the court to various provisions within the AIA document and claims that these provisions require both parties submit their dispute to binding arbitration. All of the provisions cited in the AIA document, however, refer to an “architect,” and many of these clauses condition the rights and obligations of either party on the architect’s judgment as it relates to the underlying project. Under the AIA document the architect “will provide administration of the contract” and act “as a representative of the owner....’’See AIA document § 4.2. Section 4.4.1 of the AIA document states:

Claims...shall be referred initially to the architect for decision. An initial decision by the architect shall be required as a condition precedent to mediation, arbitration or litigation of all claims between the contractor and owner arising prior to the date final payment is due, unless 30 days have passed after the claim has been referred to the architect with no decision having been rendered by the architect.

Section 4.6.1 provides that “[a]ny claim arising out of or related to the contract...shall, after decision by the architect or 30 days after submission of the claim to the architect, be subject to arbitration.” Furthermore, section 4.3.6 states, “[i]f the contractor believes additional cost is involved for reasons including...(4) failure of payment by the owner... claim shall be filed in accordance with this section 4.3.”

As owner of the property, LTS drafted the contract and incorporated the AIA document by reference. LTS never chose an architect to administer the contract, however, and we are compelled to construe the provisions in the AIA document against the drafter. See Rusiski, supra. The mediation and arbitration requirements, set forth in the AIA document, are inapposite and impossible to satisfy because LTS did not choose an architect to administer the contract. Muschlitz could not possibly refer their claim to the architect to satisfy the “condition precedent to mediation, arbitration or litigation of all claims between the contractor and owner,” as contemplated by the contract. The provisions in the contract that provide for resolution of disputes, therefore, do not apply to any disputes between LTS and Muschlitz under the May 2008 agreement because LTS did not assign an architect to the project, and the contract only contemplates dispute resolution mechanisms that involve an architect.

We find that the provisions for dispute resolution in the contract do not provide adequate channels for Muschlitz to seek redress, and Muschlitz may pursue their claim in this court.

LTS also filed a motion for protective order from Muschlitz’s discovery requests.

Pennsylvania Rule of Civil Procedure 4012 provides:

Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense, including...(5) that the scope of discovery should be limited.

Rule 4011 similarly states that “[n]o discovery or deposition shall be permitted which...(b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party [or] (c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6....” Rule 4003.1 sets out the familiar scope of discovery, generally:

[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.

Furthermore, the decision whether to grant a motion for protective order lies within the sound discretion of the trial court. Allegheny West Civil Council, Inc. v. City Council of City of Pittsburgh, 484 A.2d 863 (Pa. Cmwlth. 1984).

During discovery, Muschlitz sent LTS a request for production of documents. Muschlitz requested, among other documents: all bills, invoices, and receipts concerning the subject property or project; all “statements” of plaintiff, defendant, actual and potential witnesses, and other parties; all documents relating to any investigation undertaken by LTS which pertained to the allegations “described in your complaint”; and any and all documents, contracts, proposals, and correspondence between LTS and “any other entity” regarding the subject property or construction thereon.

Muschlitz’s request far exceeds the permissible scope of discovery as set forth in Rules 4003.1 and 4011. For one, Muschlitz’s request for all bills and receipts concerning the subject property or project requires LTS generate documentation of any transaction even peripherally related to the subject matter of this dispute. As phrased, this request also obliges LTS to disclose all financial documents regarding the subject property at any time, and not just after LTS and Muschlitz began negotiations for site work. Second, Muschlitz’s request for all “statements” of plaintiff, defendant, actual and potential witnesses, and other parties is impermissibly vague and overbroad. This request does not define the parameters of relevant statements under rule 4003.4, and ostensibly asks LTS to disclose any and all statements recorded and adopted by anyone, anywhere. Similarly, Muschlitz’s final catch-all request for “all documents, contracts, proposals, invoices, [or] correspondences between [LTS] and any other entity, person, or contractor...” attempts to compel disclosure of any relevant evidence in any form that plaintiff’s counsel may have forgotten. Muschlitz also curiously references the allegations in “your complaint” in their request directed to LTS, even though Muschlitz, as plaintiff, filed the complaint in this matter.

Clearly, LTS would be subject to unreasonable annoyance and expense if required to comprehensively respond to the various requests in Muschlitz’s request for production of documents. On this basis, we grant defendant’s protective order and direct plaintiff to narrow the scope of their requests to those materials within the proper ambit of discovery as set forth in Rules 4003.1 and 4011. While we choose to only highlight some of Muschlitz’s numerous requests to demonstrate their deficiencies, we instruct plaintiff to conform all their requests to this order.

Accordingly, we enter the following order.

ORDER

And now, November 17,2010, following oral arguments and after review of the briefs submitted, it is ordered as follows:

1. Defendant’s preliminary objections are dismissed.
2. Defendant’s motion for protective order is granted without prejudice, and plaintiff is directed to narrow the scope of their request for production of documents.


author: LASH, J.,

text:
    Mayer v. Verizon-Pennsylvania

      January 12, 2011
    C.P. of Berks County,
    no. 04-12755.

      Paul A. Lauricella, for plaintiff.

      John P. Hartley, for defendant.
   LASH, J.,

Plaintiff, Brent J. Mayer, as administrator of the Estate of Dorothy I. Mayer, deceased, and in his own right (hereinafter “plaintiff’), has filed a petition for review to the Superior Court of Pennsylvania seeking reversal of this court’s order executed October 29, 2010 and entered November 2, 2010, denying plaintiff’s motion to transfer venue of the above-captioned matter from Berks County to Philadelphia County. This court on December 16, 2010 also denied plaintiff’s “motion for reconsideration and transfer of venue Back To Philadelphia county and/or amendment of the court’s October 29, 2010 order denying transfer/return to venue to State that a substantial issue of venue is presented.”

On or about May 12, 2004, plaintiff filed the within action in Philadelphia County, seeking damages against defendants Verizon-Pennsylvania (hereinafter “Verizon”) and First Energy Corporation/Metropolitan Edison. The complaint alleged that on February 12, 2003, plaintiff’s decedent, Dorothy E Mayer, was operating a motor vehicle north on SR 29 in Flereford Township, Berks County, when her car left the roadway and struck a wooden utility pole placed and controlled by Verizon and located at the side of the road, causing her to suffer fatal injuries. Plaintiff alleges that Verizon improperly designed its pole or placed it improperly, causing a dangerous condition on SR 29.

On or about May 28, 2004, Verizon filed a joinder complaint, naming the Pennsylvania Department of Transportation (hereinafter “PennDOT”) and Hereford Township as additional defendants. Verizon alleged, among other things, that if the allegation in plaintiff’s complaint were found to be true, then PennDOT or Hereford Township or both of them were responsible for the accident due to improper design of the highway, failure to properly monitor and maintain the roadway, failure to analyze the propriety of the pole’s placement, improper approval of the placement of the utility pole, and failure to properly advise Verizon that the pole and guide wire were located in an “accident cluster zone or high accident area.” PennDOT subsequently filed preliminary objections to Verizon’s joinder complaint challenging the propriety of venue in Philadelphia County, demanding that the action be transferred to either Dauphin County or Berks County. PennDOT argued that venue in Philadelphia County was improper based on 42 Pa.C.S.A. § 8523(a), which provides, in pertinent part, that actions for claims against a Commonwealth party may be brought “in and only in a county in which the principal or local office of the Commonwealth party is located or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose....” The court of Philadelphia County sustained PennDOT’s objections and transferred the case to Berks County for further proceedings.

PennDOT eventually filed a motion with Berks County court for entry of summary judgment in its favor and against Verizon. This court, by order and opinion dated January 22, 2010, granted PennDOT’s motion and dismissed PennDOT from the case. Similarly, Hereford Township moved for summary judgment, which was also granted by this court, by order and opinion dated July 19, 2010.

On or about August 25, 2010, plaintiff filed a motion with this court to transfer the within matter back to its original jurisdiction, Philadelphia County. In its filed documents and argument, plaintiff alleged that the transfer of venue by Philadelphia County to Berks County was necessitated solely due to the presence of PennDOT and Hereford Township as defendants, venue being improper as to those two (2) defendants. Because Berks County Court removed PennDOT and Hereford Township from the suit, with prejudice, venue in Philadelphia County is now proper. Further, as plaintiff, he is entitled to choose the forum in which to bring suit, Zappala v. Brandolini Property Management, Inc., 589 Pa. 516, 532, 909 A.2d 1272, 1281 (2006), and that his choice of forum is entitled to weighty consideration and should not be disturbed lightly. See Walker v. Ohio River Company, 416 Pa. 149, 152, 205 A.2d 43, 45 (1964).

Plaintiff named neither PennDOT nor Hereford Township as defendants, nor ever intended that they be included in the suit. Accordingly, plaintiff urges the matter be transferred back to Philadelphia County in accordance with plaintiff’s choice of forum. After argument held, this court denied plaintiff’s motion, by order of October 29, 2010.

As stated, the motion for reconsideration was likewise denied, by order of December 16, 2010.

In making our determination, we initially examined the appropriateness of revisiting the decision of Philadelphia Common Pleas Court to transfer venue to Berks County. Our concern was grounded on the principle of coordinate jurisdiction. As the Pennsylvania Supreme Court states in Zane v. Friends Hospital, 575 Pa. 236, 243, 836 A.2d 25, 29 (Pa. 2003):

...Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326, 1331 (1995); see also Riccio v. American Republic Insurance Company, 550 Pa. 254, 705 A.2d 422, 425 (1997). More simply stated, judges of coordinate jurisdiction should not overrule each other’s decisions. Id.; Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827, 831 (1989).
The reason for this respect for an equal tribunal’s decision, as explained by our court, is that the coordinate jurisdiction rule is “based on a policy of fostering the finality of pre-trial applications in an effort to maintain judicial economy and efficiency.” Starr, 664 A.2d at 1331. Furthermore, consistent with the law of the case doctrine, the coordinate jurisdiction rule serves to protect the expectations of the parties, to insure uniformity of decisions, to maintain consistency in proceedings, to effectuate the administration of justice, and to bring finality to the litigation. Id.

Plaintiff, citing Zane, points out, however, that the coordinate jurisdiction rule may be departed from in exceptional circumstances, where there has been “a change in the controlling law or where there was a substantial change in the facts or evidence.” 836 A.2d at 29 (citation omitted). Plaintiff urges that there is a substantial change in the circumstances, namely, the removal of PennDOT and Hereford Township from the case. But for Verizon’s joinder, which joinder was without merit, the case would have been tried in Philadelphia County.

We agree that the exception to coordinate jurisdiction applies. Absent the joinder by Verizon, this matter would have remained in Philadelphia County. Now that PennDOT and Verizon have been removed from the suit, the operative facts determining venue have substantially changed. Our disposition of the motion to transfer venue would therefore not constitute an altering or overruling of the Philadelphia County Court of Common Pleas’ previous decision, but would be an independent decision based on current facts and circumstances. Accordingly, we proceeded to make a determination of plaintiff’s motion on its merits.

Plaintiff believes transfer is allowable under Pa.R.C.P. 1006(d)(1), which states:

For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

In support, plaintiff cites the concurrence of Justice Nigro in Ribinicky v. Yerex, 549 Pa. 555, 563, 701 A.2d 1348, 1352 (Pa. 1997) where he states:

I do not find the majority’s position erodes this court’s deference to plaintiff’s choice of forum. Rather, it recognizes the competing interests of the plaintiff’s choice of forum and the statutory requirement of where a municipality may be sued. Although the majority resolves this conflict in favor of the municipality, nevertheless, an original defendant will not be able to manipulate plaintiff’s choice of forum merely by joining a municipality. If joinder of the municipality is not meritorious, then the municipality will be removed from the action. Once the municipality is no longer a party to the action, plaintiff may properly file a petition to transfer venue back to the original jurisdiction by way of Pa.R.C.R 1006(d)(1).

In denying plaintiff’s petition to transfer venue, this court found that the evidence was insufficient to establish that a transfer of the case back to Philadelphia County would effectuate convenience of the parties or witnesses, as required by 1006(d)(1). As both parties acknowledge, venue is appropriate in Berks County. The fact that venue is now appropriate in Philadelphia County and that Philadelphia County is the plaintiff’s choice of forum is not, in and of itself, a basis to transfer venue. 1006(d)(1) requires a finding that the transfer be for the convenience of parties and witnesses. Here, there is nothing in the record to suggest that a transfer to Philadelphia County would be any more convenient for anyone. In fact, the record supports the contrary. As stated by Verizon’s counsel in Verizon’s memorandum of law in support of its reply to plaintiff’s motion to transfer venue:

Certainly nothing in plaintiff’s present motion suggests that Philadelphia County is more convenient than Berks County. None of the witnesses in this matter resided in Philadelphia County. The accident did not occur in Philadelphia County. The decedent was a resident of Berks County and so is plaintiff, Brent J. Mayer. The only connection Philadelphia has to this matter is that Verizon does business in Philadelphia.

Plaintiff’s counsel has suggested that Verizon’s motive in initially joining PennDOT and Hereford Township was forum shopping. Plaintiff points to Justice Nigro’s directive that a defendant should not be permitted to manipulate a plaintiff’s choice of forum through the mere joinder of a municipality. While we accept that a finding of manipulation of this nature might be a legitimate basis for a transfer under Pa.R.C.P. 1006(d)(1), according to Justice Nigro’s concurrence, there is no evidence on this record sufficient to establish such a manipulation. We cannot draw such an inference based merely on Verizon’s joinder complaint being meritless, the resulting dismissal of PennDOT and Hereford Township from the suit, the apparent desire of Verizon to maintain the action in Berks County, and the suspicions of plaintiff’s counsel. Without tangible evidence, plaintiff has failed to meet its burden, and the petition had to be dismissed.

We respectfully request your honorable court affirm our orders in this case and dismiss plaintiff’s petition for a transfer of venue.

      . Plaintiff subsequently discontinued its action in Philadelphia County against First Energy Corporation/Metropolitan Edison.

      . The bases for this court’s entry of the summary judgments are set forth in its opinions, which are incorporated by reference.

      . Venue is proper against Hereford Township in Berks County only, as that is where it is located, Pa.R.C.P. 2103(b), and because that is where the cause of action arose, § 333 of the JARA continuation Act of 1980, Act of October 5, 1980, P.L. 693, as amended, 42 P.S. § 20043 (hereinafter “Section 333”).

      . In Ribinicky, plaintiff filed an action in Philadelphia County. Subsequently, original defendants joined the city of Allentown as an additional defendant, resulting in Allentown filing a petition to transfer the case to Lehigh County, pursuant to Section 333. The trial court granted Allentown’s motion to transfer venue. However, the Commonwealth Court reversed. In reversing the Commonwealth Court and affirming the trial court, the Supreme Court found that Section 333 applies in cases involving joinder of an additional defendant municipality and mandated the transfer of venue to Lehigh County, determining that the Legislature, in enacting Section 333 intended to favor the public interest over the private interests of a plaintiff in his choice of forum.

      . At p.3.


author: CARPENTER, J.,

text:
    Wilson v. County of Montgomery

      C.P. of Montgomery County,
    no. 2007-23955.

      Stephen J. Woodside, for plaintiff.

      Joseph J. Santarone Jr., for defendant.
    January 18, 2011
   CARPENTER, J.,

FACTUAL AND PROCEDURAL HISTORY

Plaintiff/appellant, Janice A. Wilson (“Wilson”), appeals from the October 19, 2010 order, granting summary judgment in favor of defendant/appellee, County of Montgomery (“county”), and dismissing her second amended complaint with prejudice.

Wilson was employed by the county from 1990 until her termination on August 30, 2007. Second amended complaint ¶¶6, 45-46. Beginning in March of 2000, Wilson was the administrative assistant to the support conciliators of the domestic relations section of the Montgomery County Court of Common Pleas. Id. at ¶12.

During her employment, Wilson worked with Bernadette Grib (“Grib”), who worked at the front desk of the Conciliators Office. Grib was under the supervision of Administrative Court Services. Id. at ¶17. Wilson filled in for Grib at the front desk because Grib was often late or absent from work. Id. at ¶14. Grib had problems in her work performance, including excessive telephone usage and attendance issues. Id. at ¶¶18, 20. Wilson’s efforts to cover for Grib caused her work relationship with Grib to deteriorate. Id. at ¶21. In December of 2005, Wilson and Grib were encouraged to resolve their difficulties, but nothing was formally resolved. Id. at ¶24.

On August 1, 2006, Wilson and Grib were directed to attend mediation to discuss the continuing conflict between them at work. Id. at ¶25. At the conclusion of the mediation, Beverly Jackson, the county’s EEO counselor, memorialized the mediation efforts in a memorandum to Wilson’s and Grib’s supervisors, Gary Kline and Carol Dillon, respectively (“memorandum”). Id. at ¶¶25, 27.

The memorandum in part stated, “[t]hey are both aware that they have 30 days, August 1-30, 2006, to improve or there will be a termination of employment. No exceptions or excuses. This is their final notice.” Id. at ¶28. The memorandum further stated, “I agree to the terms listed in this memo and understand that any violation or incident will result in termination of my employment.” Id. Both Wilson and Grib signed the memorandum. Id., memorandum, August 1, 2006, Exhibit “B.” At the end of the thirty-day period, neither Wilson nor Grib were terminated; however the conditions did not improve. Id. at ¶29.

Wilson continued to perform her work in an exemplary fashion and made every effort to avoid any confrontations with Grib. Id. at ¶31. Wilson believed that if she did not violate the memorandum, she could not be terminated for any reason relating to the situation with Grib. Id. at ¶32.

On August 27, 2007, Wilson’s work duties required to her interact with Grib. Id. at ¶¶39, 40. This interaction led to another incident between the women, which was instigated by Grib. Id. at ¶43. Wilson immediately reported the incident. Id. at ¶44.

On August 30, 2007, Wilson and Grib were called to a third floor conference room to attend a meeting. Id. at ¶45. At the meeting, Wilson and Grib had the opportunity to tell their sides of their story, after which their employment was terminated. Id. at ¶¶47, 48.

The following day on August 31, 2007, the county terminated Wilson’s medical benefits coverage. Id. at ¶49. Because her coverage was terminated, Wilson is left without any medical coverage or prescription drug coverage to treat her multiple sclerosis and cerebral meningioma, for which she has been under continuing care of medical specialists since her diagnosis in October, 2006. Id. at ¶50.

The second amended complaint asserted claims for breach of express contract for employment, breach of collateral contract for employment, promissory estoppel, equitable estoppel and preliminary and permanent injunctive relief.

Preliminary objections were filed to the second amended complaint, which were sustained on October 23, 2008, to the extent that the breach of collateral contract claim was dismissed with prejudice. The county filed an answer along with new matter on November 17, 2008.

On December 4, 2008 a hearing on Wilson’s preliminary injunction was held before the Honorable Bernard A. Moore of this court. Injunctive relief was denied on December 8, 2008.

On February 2, 2010, the county filed a motion for summary judgment, along with a memorandum of law. Wilson filed a response to the motion for summary judgment, and a memorandum of law in support of her opposition. On October 13, 2010, oral argument was held. After careful consideration of the briefs, the arguments, any evidence presented, together with the relevant case law, this court granted the county’s motion, dismissing the second amended complaint with prejudice on October 19, 2010.

On November 19, 2010, Wilson filed this timely appeal. This court directed Wilson to file a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Wilson complied and filed a 1925(b) statement on December 13, 2010.

ISSUES

1. Whether this court properly determined that the memorandum was not an enforceable contract for Wilson’s employment with the county.

II. Whether this court did not consider Wilson’s collateral contract claim.

III. Whether the county lacked the authority to enter into a contract, collateral or otherwise, exempting Wilson from an at-will status.

IV. Whether this court properly dismissed Wilson’s promissory estoppel claim.

V. Whether this court properly dismissed Wilson’s equitable estoppel claim.

DISCUSSION

Summary Judgment Standard Center

“After the relevant pleadings are closed, but within such time as not to reasonably delay trial, any party may move for summary judgment in while or in part as a matter of law.” Pa.R.C.P. 1035.2. Summary judgment may be entered where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. Barnett v. SKF USA, Inc., 4 A.3d 1057, 1059 (Pa.Super.2009). Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Murphy v. Duauesne University, 565 Pa. 571, 590, 111 A.2d 418, 429 (2001). Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Id. In determining whether to grant a motion for summary judgment a trial court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Evans v. Sodexho, 946 A.2d 733, 737-38 (Pa. Super. 2008).

I. This court properly determined that the memorandum was not an enforceable contract for Wilson’s employment with the county.

First, Wilson contends that the memorandum was an enforceable contract for her employment with the county, excepting her from the at-will doctrine. This court disagrees because, as a matter of law, the county cannot contract away at-will employment. In Pennsylvania, public employees are employees-at-will and subject to summary dismissal for a good reason, a bad reason or no reason at all, unless the legislature has explicitly conferred tenun as an integral part of a comprehensive governmental employment scheme. See Stumpp v. Stroundsburg Municipal Authority, 540 Pa. 391, 658 A.2d 333 (Pa. 1995); Bolduc v. Board of Supervisors of Lower Paxton Township, 618 A.2d 1188 (Pa. Cmwlth. 1992). Public employers do not have power, unless conferred by statue, to enter into an employment contract which prevents them from summarily dismissing their employees at will. Id.

Here, the county simply does not have the power under the law to enter into contracts of employment that contract away the right of summary dismissal. Since, as a matter of law, Wilson is an at-will employee and has produced no evidence to submit to a jury that there exists a valid enforceable employment contract, she cannot maintain an action for breach of contract. Therefore, the county was entitled to summary judgment in its favor.

II. This court did not consider Wilson s collateral contract claim.

Next, Wilson asserts that this court erred in its adjudication on summary judgment, where it failed or refused to find the memorandum contained an implied for-cause termination provision covering her workplace situation with Grib, collateral to her at-will employment with the county. This court did not review this claim.

Wilson, in her second amended complaint, included a claim for breach of collateral contract for employment. Wilson alleged in relevant part that “[u]nder the agreement, plaintiff had an implied contract with the County, collateral to her employment at-will, containing a for-cause termination provision expressly relating to her workplace relationship with Grib, and as regards Grib, plaintiff’s employment was protected.” Second amended complaint ¶63. Additionally, it was alleged that “[u]nder the contract, the County could not terminate plaintiff for any reason relating to Bernadette Grib, unless the County had just cause under that contract to terminate the plaintiff.” Id. at ¶64.

These allegations, along with Wilson’s entire breach of collateral contract for employment claim, were dismissed with prejudice at the preliminary objection stage, and Wilson does not presently argue that the preliminary objections were improperly sustained. Therefore, any arguments presented at summary judgment in regard to the collateral contract claim were not considered, and this collateral contract claim will not be reviewed on appeal.

III. The county lacked the authority to enter into a contract, collateral or otherwise, exempting Wilson from her at-will status.

Third, appellant contends that this court erred in its adjudication on summary judgment, where it determined her implied-in-fact termination provision in the memorandum, collateral to her employment, was not an ultra vires act of the county and therefore justiciable as protected public employee.

To the extent that this issue raises a collateral contract claim, this court did not review it as Wilson’s breach of collateral contract claim was dismissed on preliminary objections. However, this court notes that the county has no authority to enter into a contract for employment that would exempt Wilson from her at-will status as discussed earlier. See, Stumpp, supra. Therefore, even if the county had intended for the memorandum to be an employment contract, the employment contract would be void and unenforceable as an ultra vires action. Clairton Slag, Inc. v. Department of General Services, 2 A.3d 765, 782 (Pa. Cmwlth. 2010). Accordingly, the county was entitled to summary judgment on this claim.

IV. This court properly dismissed Wilson’s promissory estoppel claim.

Wilson’s fourth issue on appeal claims that this court erred in dismissing her claim for promissory estoppel, where she was induced to sign an agreement, collateral to her at-will employment that was not an ultra vires act of the county, and the required elements of the claim were otherwise meant.

To the extent that this issue asserts a collateral contract claim, this court will not review it on appeal as Wilson’s breach of collateral contract claim was dismissed on preliminary objections. However, Wilson raised a similar argument in her response to the motion for summary judgment which was not couched in terms of a collateral contract. Therein, Wilson argued that that the August 2006 agreement had an implied promise and covenant regarding her employment relationship with Grib, and she was employed under a for-cause termination provision. See, memorandum of law in response to defendant’s motion for summary judgment 4/15/10 p. 20. Wilson also argued that the provision of the agreement contained promises and conditions which the county could have reasonably expected to induce her to enter into the agreement and continue her employment with the county, and she was induced. Id. Further, Wilson asserted that in order to keep her job and live up to the agreement, she had to work under circumstances where she had to choose between honoring the agreement and not honoring her job duties, or honoring her duties and not honoring the agreement. Id.

Even if all of these allegations are true, this court disagreesthatWilson can obtainrelief as an at-will employee under a promissory estoppel theory. In Paul v. Lankenau Hospital, 524 Pa. 90, 94, 569 A.2d 346, 348 (1990), our Supreme Court rejected the theory that detrimental reliance in general could be an exception to the employment at-will doctrine. The Paul court explained that, in Pennsylvania, “as a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship.” Id. at 348.

The Paul court further explained, “exceptions to this rule have been recognized in only the most limited of circumstances, whether discharges of at-will employees would threaten clear mandates of public policy.” Id. Applying these principles, the Paul court held that Pennsylvania law “does not prohibit firing an employee for relying on an employers promise.” Id. The Stumpp court, supra, citing Paul, supra, held, that the issue of whether an employee detrimentally relied on any promises is simply not relevant.” Stumpp, 658 A.2d at 397. Since, as a matter of law, Wilson cannot rely on a promissory estoppel theory to overcome her at-will status, the county was entitled to summary judgment in its favor.

V. This court properly dismissed Wilson s equitable estoppel claim.

Lastly, Wilson claims that this court erred in dismissed her claim for equitable estoppel where, under factual circumstances identical to the promissory estoppel claim, controlling law does not preclude the claim, and the required elements of the claim were otherwise met. This court disagrees because equitable estoppel has been affirmatively rejected by the Paul court as an exception to the at-will rule. The Paul court held that “[t]he doctrine of equitable estoppel is not an exception to the employment at-will doctrine. An employee may be discharged with or without cause, and our law does not prohibit firing an employee for relying on an employer’s promise.” Paul, 569 A.2d at 348. Accordingly, Wilson’s equitable estoppel fails as a matter of law.

CONCLUSION

Based on the forgoing analysis, the October 19, 2010 order, granting the county’s motion for summary judgment, should be affirmed.

      . Wilson refers to this memorandum, which was the product of the mediation, as either the “August 2006 Agreement” or the “Agreement.”

      . The order granting the motion for summary judgment was issued on October 19, 2010, but was entered onto the docket on October 20, 2010, making this a timely appeal.


author: ZULICK, J.,

text:
    Abuhadba v. Schena
    December 3, 2010
    C.P. of Monroe County,
    no. 1866 CV 2006.

      John M. Mulcahey, for plaintiff.

      Phillip M. Farber, for defendant.
   ZULICK, J.,

SUPPLEMENTARY OPINION PURSUANT TO Pa.R.A.P. 1925(a)

The Superior Court of Pennsylvania remanded this case on November 5, 2010, by order directing this court to enter judgment and to apply a “weight of the evidence” standard of review. Specifically, the Superior Court instructed that judgment be entered in order to perfect Ms. Abahadba’s premature appeal. See Pa.R.A.P. 905(a)(5); Pusi v. Means, 982 A.2d 550, 552 n.1 (Pa. Super. 2009) (observing that under Pennsylvania’s appellate rules, an appeal in a civil case in which post-trial motions are filed lies from the entry of judgment). It also instructed the court to consider plaintiff Rana Abuhadba’s (“Ms. Abuhadba”) motion for post-trial relief applying the weight of the evidence standard of review described in Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (Pa. 2000) (holding that in a weight of evidence claim a trial court is not obligated to view evidence in light most favorable to verdict winner).

This is a personal injury action arising from an automobile collision that occurred when defendant Louis Schena (“Mr. Schena”) struck the rear of Ms. Abuhadba’s vehicle on February 17, 2005. Ms. Abuhadba claims chronic injuries to her head, neck, and back as a result of the collision. A jury trial was held on December 2-3, 2009. Mr. Schena conceded negligence but disputed Ms. Abuhadba’s injuries. The jury entered a zero verdict for past medical expenses, future medical expenses, and pain and suffering. The verdict was unanimous. Ms. Abuhadba filed a motion for post trial relief on December 4, 2009. When that was denied, she filed an appeal, which has resulted in a remand to this court for the reasons stated.

DISCUSSION

In ruling on a weight of evidence challenge, the trial court

[n]eed not view the evidence in the light most favorable to the verdict; it may weigh the evidence and in doing so evaluate for itself the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial and submit the issues for determination to another jury. Widmer at 752 n.3 (citing Tibbs v. Florida, 457 U.S. 31, 38 n. 11, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)).

The trial court must inquire as to whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Id. at 752 (citation omitted). It is the trial court’s sense of justice that must be shocked before a new trial may be granted on a challenge that the verdict is against the weight of the evidence. Commonwealth v. Sullivan, 820 A.2d 795, 807 n. 11 (Pa. Super. 2003)(citing Commonwealth v. Brown, 538 Pa. 410, 438, 648 A.2d 1177, 1191 (Pa. 1994)). “[A] ppellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.” Widmer, 744 A.2d at 753 (citing Brown, 648 A.2d at 1189)).

“A new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice [and not] where the evidence is conflicting [or] where the trial judge would have reached a different conclusion on the same facts.” Davis v. Mullen, 565 Pa. 386, 390, 773 A.2d 764, 766 (Pa. 2001) (citing Henery v. Shadle, 661 A.2d 439, 441 (Pa. Super. 1995)).

“[A] jury verdict is set aside for inadequacy when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from the uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.” Davis, 773 A.2d at 766 (citations omitted). A “reversal on grounds of inadequacy of the verdict is appropriate only where the “injustice of the verdict [stands] forth like a beacon.” Id. (citations omitted).

Ms. Abuhadba argues that “the jury’s failure to make an award bore no reasonable relationship to the loss suffered by Appellant.” Appellant’s Pa.R.A.P 1925(b) statement, page 3. Thejury apparently didnot believe Ms. Abuhadba’s testimony of pain and suffering and did not find that the expert medical testimony provided a basis to award a more substantial verdict. Ms. Abuhadba argues that this result “was against the great weight of the evidence, and the verdict truly shocks one’s sense of justice....” Id.

As I observed in my statement to the Superior Court issued pursuant to Pa.R.A.P. 1925(a), the determination of the significance of Ms. Abuhadba’s injuries was a hotly contested subject before the jury. The jury heard testimony from Ms. Abuhadba and each of the party’s medical experts. The experts agreed that Ms. Abuhadba had suffered some injury as a result of the collision. However, they disagreed as to the extent of this injury. Ms. Abuhadba’s medical expert retained for purposes of the litigation opined that she would have $1.8 million in future medical expenses. None of Ms. Abuhadba’s treating physicians testified.

Dr. Berger, the medical expert for the defense, testified that Ms. Abuhadba had a slightly diminished range of motion in her neck. Dr. Berger’s deposition, page 17. He also testified to tenderness in the neck, but no spasms. Id. Dr. Berger noted that Ms. Abuhadba had complaints of back pain before the collision and that she had signs of degeneration and desiccation of discs, which lead him to determine that her back injuries were not a result of the collision. Id. at 22-23, 25. He determined that Ms. Abuhadba had reached maximum medical improvement, especially since the collision occurred three years ago. Id. at 24. Dr. Berger opined that the type of injury suffered usually heals in three to six months. Id.

Dr. Berger performed an independent examination of Ms. Abuhadba. He testified to the following related to that examination:

[I] performed a series of tests in the standing position which are known as Waddell’s tests. These tests are designed to elicit signs of symptom magnfication. And what that means is, we perform a series of maneuvers with a patient standing up that we know do not elicit any stress on the low back, and if a person responds that they have pain during the performance of those tests, it just brings into some question whether or not they are magnifying symptoms. In her case, the three [tests] that I did she was positive two out of the three, so that’s a mildly positive test in my opinion.” Defendant’s exhibit 11, 16:19-16:55.

This testimony from Dr. Berger, based on his personal examination of the plaintiff, undermined Ms. Abuhadba’s claims of pain.

Ms. Abuhadba testified extensively about her injuries, pain, and medical treatment. However, defense counsel’s cross examination of Ms. Abuhadba revealed several glaring inconsistencies between her trial testimony and deposition. The plaintiff admitted that prior to the accident she had seen a doctor for low back pain and headaches, specifically migraines. NT 50-52. On direct examination, Ms. Abuhadba attempted to explain (or explain away) her pre-accident back pain by attributing it to an ovarian cyst. NT 32. On cross examination, however, Ms. Abuhadba admitted that her medical records show no mention of an ovarian cyst. NT 51. She also admitted that the records make no reference to her being referred to an OB-GYN for ovary-related complaints. NT 51.

Ms. Abuhadba answered “I don’t remember” or “I don’t recall” to many questions involving the collision and her later medical treatment at her deposition, but during her testimony she answered with specifics about times, dates, and treatment. NT 60-68. For example, when defense counsel pointed out her answer during her deposition, she testified as follows:

Q: Do you have a recollection of your vehicle moving at all as a result of being hit from behind?
A: “I don’t remember.”
A: Correct
Q: Yet, today you’re saying you now remember that your vehicle was moved as a result of the impact.
A: Yes, it did. NT 62.

Ms. Abuhadba claimed she remembered most of the information at trial because she had reviewed the medical records and discussed the accident in preparation for trial. NT 68-69.

Ms. Abuhadba testified about the types of treatment she received. She went to physical therapy 18 times in 2005 starting a few months after the accident. NT 71. She had not obtained physical therapy since 2005. NT 77. She also testified that she saw another doctor four times in 2005 and a pain management specialist once. NT 75-76.

Ms. Abuhadba became pregnant in October 2005 and stopped any type of medical treatment with her previous doctors. NT 77, 79. She gave birth in June 2006. NT 85. She became pregnant with her second child in November 2006 but did not receive treatment during the interim. NT 85. There was another break in treatment from July 2007 to October 2007. NT 83. She received a second facet block almost three years after the first following these breaks in treatment. NT 84. Ms. Abuhadba had not been prescribed any additional treatment or physical therapy in 2009. NT 89. However, she did testify that she had some additional tests scheduled. NT 93.

This sporadic treatment, punctuated by long gaps, served to cast doubt on the severity of the injuries suffered by Ms. Abuhadba. They were not indicative of significant loss. Based on this testimony, the jury was left to wonder why, if her injuries were serious, she did not pursue an equally serious course of medical treatment.

The jury’s verdict in this case did not shock the conscience of the court. Both sides took significant risks in this trial and its outcome depended on who the jury chose to believe. Had the jury believed the Abuhadba evidence, Schena had exposure for a verdict in excess of a million dollars. If they did not find Ms. Abuhadba and/or her expert credible, the opposite result was possible, and this is what came to pass. I did not sit as “a thirteenth juror” and that is not the standard I apply here. The testimony presented by Ms. Abuhadba, her medical expert and the defense expert were not so certain as to the extent of her injuries as to require a finding that she was denied justice. Much of the evidence of pain Ms. Abuhadba cites as verified by Dr. Berger’s examination was based upon her subjective complaints. The evidence of injury shown in the MRIs was explained by Dr. Berger as not having been caused by the collision. Insofar as her subjective complaints were concerned, Ms. Abuhadba’s claims of pain were subject to credibility findings of the jury.

I feel it is appropriate in this case to respect “[t]he power of the jury as the ultimate finder of fact and the need for the judiciary to guard against usurping the role of the jury.” Davis, 773 A.2d at 768. Here, “[t]he jury was not required to award plaintiff any amount as it obviously believed that any injury plaintiff suffered in the accident was insignificant.” Holland v. Zelnick, 478 A.2d 885 (Pa. Super. 1984).

Both the Pennsylvania Supreme Court and the Pennsylvania Superior Court have addressed the issue of whether the jury may return a verdict for the defendant, where the defendant’s medical expert concedes that the plaintiff sustained some injury as a result of the collision. Majczyk v. Oesch, 789 A.2d 717, 722 (Pa. Super. 2001) (citations omitted). Case law has established that “where a defendant concedes liability and his...expert concedes injury resulting from the accident that would reasonably be expected to cause compensable pain and suffering, the jury’s verdict is against the weight of the evidence where it finds for the defendant.” Id. at 722. Whether or not compensable pain exists “is an issue of credibility and juries must believe that plaintiffs suffered pain before they compensate for that pain.” Id. at 723 (citing Davis v. Mullen, 773 A.2d 764, 769 (Pa. 2001)).

Here, whether the jury’s verdict was against the weight of the evidence turns on whether or not Ms. Abuhadba experienced compensable pain and suffering. There were inconsistencies in Ms. Abuhadba’s testimony and large gaps in her treatment. The two medical experts disagreed about the nature and severity of her injuries. Dr. Berger believed her back pain was degenerative. He found only a limited loss of range of motion in her neck. The testimony at trial does not compel a rejection of the jury’s verdict.

ORDER

And now, December 3, 2010, following consideration of plaintiff’s post-trial motion and on remand from the Pennsylvania Superior Court, it is ordered that judgment is entered on the jury’s December 3, 2009 verdict for defendant, Louis Schena and against the plaintiff, Rana Abuhadba. The prothonotary shall enter the judgment on the docket, together with the required notation that notice was given to the parties pursuant to Pa. R.C.P. 236(b).

      . The court’s ability to review and cite to the record is diminished because the DVD and the transcript of plaintiff’s medical expert’s deposition which was used at trial were not introduced as exhibits. There is a transcript of the deposition of the plaintiff’s medical expert, Dr. Gentilezza, attached to the defendant’s brief in support of a motion in limine as exhibit “C”.
      Counsel for the defendant had a DVD-recording of the deposition of Dr. Berger entered into evidence, see defendant’s Exhibit 11, but did not have an accompanying transcript of the deposition entered as an exhibit. A partial transcript of the Berger deposition is attached to the plaintiff’s motion for post-trial relief as exhibit “A”. Where I am unable to cite to the Berger transcript because it is not in the record, 1 cite to the elapsed time of the DVD-recording instead ( defendant’s exhibit 11).

      . Ms. Abuhadba introduced several MRIs, including slides and a radiologist’s impressions, done as part of diagnostic studies of her back and neck pain. See plaintiff’s exhibits 4-10. Dr. Berger reviewed the studies, including the MRI films and the radiologist’s impressions of them. Dr. Berger’s deposition, page 22.
      From the MRIs of her lumbar spine, the radiologist had interpreted herniation of Ms. Abuhadba’s L5-S1 disc from the June 24, 2005 MRI and another (new) herniation at the follow-up MRI performed October 30, 2007. Dr. Berger’s deposition, pages 47-48. From the MRIs of Ms. Abuhadba’s cervical spine, the radiologist had interpreted disc bulge at C45 and C56 and at the follow-up MRI on November 5, 2007 disc herniations at C45, C56 and C7 Tl. defendant’s exhibit 11, 44:15-50:00.
      Based on review of the MRI slides and radiologist’s impressions, Dr. Berger concluded that Ms. Abuhadba’s injuries — including the worsening of her condition identified at the follow-up MRIs — was caused by a degenerative back condition and not the collision with Mr. Schena. Dr. Berger’s deposition, pages 22-23, 25.

      . As stated in footnote 1, review of the record indicates that the testimony of Ms. Abuhadba’s medical expert, Kenneth Gentiiezza, M.D., was not marked and admitted into evidence. See plaintiff’s list of exhibits, NT, Volume II, 2; see also NT, Volume II, 5-6 (plaintiff’s counsel stating that deposition transcript had not been marked).

      . For a discussion of the MRIs that were presented, see note 2.