author: CHESLOCK, J.,

text:
    Sanderman v. Costa Cruises Inc.

      C.P. of Monroe County,
    no. 3475 Civil 2001.

      William H. Robinson Jr., for plaintiff.

      Carl D. Bucholz III and Charles W. McCammon, for defendant.
    September 20, 2001
   CHESLOCK, J.,

On May 11, 2001, the plaintiffs, Richard and Reva Sanderman, filed a declaratory judgment action against Costa Cruise Lines N.V., seeking monetary damages in the amount of $21,775. After the defendant, Costa filed preliminary objections, the Sandermans on June 19, 2001, filed an amended complaint in which they sought to compel Costa to honor their cruise tickets instead of monetary relief. Costa Cruise Lines N.Y. is a registered corporation in the Netherlands Antilles. Its only office and principal place of business is located in Hollywood, Florida. In their amended complaint, the Sandermans allege that upon requesting Leading Source Inc. to obtain nine tickets for an 11-day cruise on the “Costa Romántica” leaving from Newark, New Jersey, they forwarded a check to Leading Source to pay for the tickets. Leading Source has failed to obtain the tickets or refund the money.

Leading Source is a travel agent and tour operator based in Fort Walton Beach, Florida. Confirmation for the tickets was issued by Leading Source. Costa never received any funds from the Sandermans or Leading Source. Costa is neither registered nor licensed to conduct business in Pennsylvania. Costa has not consented to the jurisdiction of the courts of the Commonwealth of Pennsylvania, nor does it maintain any financial accounts, offices, telephone or mailing addresses in Pennsylvania.

The Sandermans allege that Leading Source’s web site transferred them to “Trip Quest,” a separate web site that lists the Costa Romántica as a cruise it regularly books. The domain name for the “Trip Quest” web site is registered to a Mr. Bruce Currie, whom the Sandermans allege was formerly affiliated with Leading Source. Further, the Sandermans contend that Costa did not book cruises directly but used travel agents. When the Sander-mans attempted to book directly, they were told to use an agent and were referred to Leading Source. Finally, Costa advertises its cruises on the internet and in newspapers throughout the nation including Pennsylvania and pays commissions to various travel agents throughout the nation. On September 4, 2001, this court heard arguments on the preliminary objections. Both parties subsequently filed briefs and now we are ready to decide the matter.

In ruling on preliminary objections, we must accept as true all well-pleaded facts and reasonable inferences drawn therefrom. See Dorfman v. Pennsylvania Social Services Union—Local 668 of the Service Employees Int’l Union, 752 A.2d 933, 936 (Pa. Commw. 2000). However, we need not accept any conclusions of law, unwarranted inferences, argumentative allegations or opinion. Id. Moreover, we should sustain preliminary objections only when they are free and clear from doubt. Id.

In its brief, Costa asserts that the Sandermans’ complaint lacks subject matter and personal jurisdiction, fails to join a necessary party and lacks proper venue and, therefore, should be dismissed. The main point of contention, however, raised by the Sandermans’ brief in response goes to personal jurisdiction. Because Costa raised the issue of personal jurisdiction, the Sandermans must prove by a preponderance of the evidence that the facts are sufficient to establish personal jurisdiction. See Carteret Savings Bank FA v. Shushan, 954 F.2d 141, 146 (3d Cir.), cert. denied, 506 U.S. 817 (1992), also, Time Share Vacation Club v. Atlantic Resorts Ltd., 735 F.2d 61, 63 (3d Cir. 1984). In order to meet the Fourteenth Amendment Due Process standard, which protects an individual’s liberty interest from the binding judgments of a forum with which he has established no meaningful contacts, the Sandermans must show that Costa had more than random or attenuated contacts with Pennsylvania. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). This court finds that the plaintiffs failed to meet such a burden.

Under Pennsylvania’s Long Arm Statute, courts have recognized a distinction between specific and general jurisdiction. 42 Pa.C.S. §5301 et seq. Let us first address specific jurisdiction. Specific jurisdiction is relevant where defendant’s forum-related activities gave rise to the cause of action; in a contract case, for example, the place where the contract occurred. McGee v. International Life Insurance Co., 355 U.S. 220 (1957). Even if the contract is formed outside the forum, the situs of the contract is not controlling where a foreign corporation induces the contract by directly targeting the relevant fo-ram. However, where as here the defendant not only did not induce the contract but was not even part of the contract, we cannot find specific jurisdiction. Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408 (1984). Accordingly, specific jurisdiction does not apply to Costa.

Finally, the Sandermans allege that since Costa acted as the principal of Leading Source, Costa did indeed form a contract in Pennsylvania and, thus, specific jurisdiction may be found. To the contrary, we find that Costa was not a party to the contract in dispute as Leading Source was not an agent of Costa but rather an independent contractor. In their brief, the Sandermans claim that Costa never raised this issue. To the contrary, Costa asserted not only that the travel agency was an independent contractor but also that it acts as a special agent only for the particular transaction. To distinguish a principal-agent relationship from an independent contractor requires a balancing of the following factors: control of the manner of work, terms of the agreement, nature of the work, skill required for the performance, whether one is engaged in distinct business, payment by time or by job, whether work is part of regular business of employer and can the employer terminate at any time. Zimmerman v. Commonwealth, Public School Employes’ Retirement Board, 513 Pa. 560, 563, 522 A.2d 43, 45 (1987), quoting Hammermill Paper Co. v. Rust Engineering Co., 430 Pa. 365, 243 A.2d 389 (1968). Costa did not control the manner of Leading Source’s business, nor is it the regular part of a cruise line’s business. Although Costa may have paid a commission, it paid by the job not the hour and could terminate its agreement at any time. Finally, the skill required for a travel agent is unique.

In the alternative, we must look to see if Costa falls under the rubric of general jurisdiction. With respect to general jurisdiction, the doctrine of minimum contacts applies. We look to see whether Costa had sufficient minimum contacts with Pennsylvania such that maintenance of the suit does not offend traditional notions of fair play and justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945). As a practical matter, then, Costa must have purposefully availed itself of the privilege of conducting some activity in the state, thereby invoking the benefits and protections of state law. Burger King, 471 U.S. at 474-76. Further, such activity must be substantial and continuous enough to make it reasonable to exercise personal jurisdiction. Brotherhood Cia Naviera S.A. v. Zapata Marine Service Inc., 547 F. Supp. 688, 691 n.2 (E.D. Pa. 1982).

Applying the law to the present facts, we find that Costa Cruise Lines N.V. lack the level of contact with Pennsylvania required to justify a finding of general jurisdiction. Costa was neither licensed nor registered to do business in Pennsylvania. It did not own property, maintain accounts, offices, employees or agents in Pennsylvania. More important, it did not “solicit” or directly target customers in Pennsylvania. Costa’s only advertising came from a separate travel agent’s web site that listed it.

Advertising on the internet is not an issue of first impression in Pennsylvania. A federal district court ruled that personal jurisdiction is directly proportionate to the nature and quality of commercial activity conducted on the internet. Resnick v. Manfredy, 52 F. Supp.2d 462, 466-67 (E.D. Pa. 1999). More specifically, that court concluded that personal jurisdiction is proper where a defendant clearly does business over the internet; for example, entering into contracts in a foreign jurisdiction that involve knowing and repeated transmissions of computer files over the internet. Id. Posting ads or information on a noninteractive web site accessible to users in a foreign jurisdiction is a less invasive type of activity and, the court reasoned, more analogous to national advertising. Id.

Costa’s activity resembles the latter kind in that its name was listed on a separate site. There is no evidence the travel agent site linked to Costa’s own web site, or that the Sandermans ever contacted Costa directly. Further, the Sandermans’ reliance in their brief on the Garfield case is misplaced. That case is distinguishable because the New York resort specifically targeted customers in the Philadelphia area and its contacts were continuous and substantial. Such activity may also be found where the foreign corporation makes a number of direct sales in the forum, solicits business regularly or advertises regularly in a way that specifically targets the forum. Here, Costa was tangentially involved in an isolated contract. Costa did not solicit business in Pennsylvania nor did it specifically target Pennsylvania with advertising. The kind of advertising done here is more analogous to the Zapata case, where a Texas company’s only alleged contact with Pennsylvania was that it advertised in a national trade magazine. A Third Circuit court held that the company lacked the necessary contact with the forum state.

In conclusion, for the reasons outlined above, this court finds that the Sandermans lack the authority to exercise jurisdiction over Costa. We grant Costa’s preliminary objections. This court need not decide on defendant’s other motions.

ORDER

And now, September 26, 2001, it is hereby ordered that defendant’s preliminary objections are granted and plaintiff’s complaint is dismissed.


source: Caselaw Access Project

author: BRINKLEY, J„

license: Public Domain

text:
    Nygard v. Cafe Zesty Inc.

      Allen L. Feingold, for plaintiff.

      Vincent N. Melchiorre, for defendant.
    March 9, 2001
   BRINKLEY, J„

Allen L. Feingold, on behalf of plaintiff, has filed an appeal of this court’s denial of post-trial motions, entered on November 22, 2000.

I. PROCEDURAL HISTORY

On August 7, 2000, the above-captioned matter came before this court, on appeal from an arbitration award in favor of the plaintiff, Charles Nygard, in the amount of $38,161. The original complaint in this matter was filed in August of 1997 by the previous attorney for Nygard, Lawrence Sheetz, Esquire. The complaint was listed for compulsory arbitration because the amount requested was less than $50,000. An arbitration hearing was first held on April 30, 1998. Neither the defendant, Cafe Zesty Inc., nor the defense attorney, Vincent Melchiorre, Esquire, were in attendance. The board of arbitrators found in favor of Nygard and against Cafe Zesty in the amount of $50,000. The award was appealed to the Common Pleas Court by Cafe Zesty on May 22, 1998. A status conference and settlement conference were scheduled. After the status conference, the appeal was dismissed and the case was remanded to arbitration on January 4, 1999. Allen L. Feingold, Esquire, filed an entry of appearance on behalf of the plaintiff on January 15, 1999. Lawrence Sheetz, Esquire, filed a withdrawal of appearance on behalf of Nygard on April 7, 1999.

Arbitration hearing was held again on October 15, 1999. The arbitrators found in favor of Nygard in the amount of $38,161. Nygard appealed this award on November 10, 1999. The parties came before this court on August 7, 2000. Nygard moved for the court’s recusal as a result of unfavorable rulings by the court in a previous case. The motion was denied. On agreement of the parties, judgment was entered in favor of Nygard and against Cafe Zesty in the amount of $57,500. (N.T. 47.) Plaintiff filed a post-trial motion for relief on August 17, 2000. This court denied the motion without a hearing on November 9, 2000. Nygard filed this appeal to the Pennsylvania Superior Court on November 22, 2000. On December 12, 2000, Vincent Melchiorre, Esquire, filed a withdrawal of appearance and Michael K. Coran, Esquire, filed an entry of appearance on behalf of Cafe Zesty.

H. FACTUAL HISTORY

When the parties came before this court on August 7, 2000, the underlying facts were not in dispute. Nygard invested $80,000 into the restaurant Cafe Zesty. Nygard decided to abandon the investment and Cafe Zesty signed a note and stock pledge agreement. (N.T. 10.) In February of 1997, Cafe Zesty stopped making payments and this lawsuit ensued. (N.T. 10.)

Cafe Zesty admitted liability for defaulting on the note. (N.T. 11.) Nygard alleged in his complaint that an additional oral agreement existed. (N.T. 15.) Cafe Zesty denied the existence of any agreement outside that evidenced by the note and pledge agreement. (N.T. 12.) Nygard’s alleged additional agreement was that Cafe Zesty would remit $25,000 to Nygard as a down payment before going into installments for the remaining $55,000 owed. Nygard claimed $15,000 was paid but $10,000 was outstanding, before the other payments began. (N.T. 22.) During the hearing, Cafe Zesty’s counsel provided a copy of the original complaint and attachments to the court. The court reviewed the complaint and its attached exhibits. (N.T. 21.) After reviewing the relevant facts and the disputed issues with the court, the parties reached a settlement agreement. Cafe Zesty agreed to allow the court to enter judgment in favor of Nygard against the Cafe Zesty, without admission, for $57,500. (N.T. 46.) Nygard expressed his agreement with the judgment, and it was entered by the court. The amount was in excess of what Nygard could have received in arbitration, and was in excess of the amount requested in the original complaint against Cafe Zesty.

Both Nygard’s post-trial motion and grounds for appeal address an “unwritten rule” used by the “secretaries, administrators, but rarely judges of the court of common pleas” to delay Nygard’s recovery by forcing him to go through two arbitrations and two appeals, amounting to substantial attorney’s fees and costs. (See Nygard’s post-trial motion at ¶13; Nygard’s statement of matters complained of on appeal at ¶2.) Nygard asserts the trial court abused its discretion when striking the first appeal and remanding it back to arbitration. (See Nygard’s statement of matters complained of on appeal at ¶1.) The contention continues that this act of the trial court was unconstitutional and denied the plaintiff of due process. (See Nygard’s statement of matters complained of on appeal at ¶6-7.) Nygard requested that this court declare the policy used to remand the case an “unwritten rule” that is improper, inappropriate, null and void. (See Nygard’s post-trial motion at ¶14.)

m. issue

Whether the Trial Court Erred by Remanding the Case to Arbitration

IV. DISCUSSION

The Trial Court Did Not Abuse Its Discretion by Remanding the Matter to Arbitration

“An abuse of the discretion [of the trial court] is not merely an error in judgment;... it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.” Stock v. Arnot, 415 Pa. Super. 113, 118, 608 A.2d 552, 554 (1992) (reversing dismissal of arbitration appeal where defendant did not appear at pretrial conference). According to the Philadelphia County local rules, if a party fails to appear for an arbitration whose notice contained the requisite language, the matter may go forward in front of a Judge. Phila. Civil Practice §12-9.10 (10th Ed.). The court may take action not available to the arbitrators, with the consent of the parties. Id. Pennsylvania Rule of Civil Procedure 1303 states that if one or more of the parties is not ready, the board of arbitrators may proceed and make an award. Pa.R.C.P. 1303. An emphasized note to this rule suggests that defendants who fail to appear and have judgment awarded against them may include in an appeal, a request for a new trial on the ground of a satisfactory excuse for the defendant’s failure to appear. Pa.R.C.P. 1303(b)(2), Note. The notes also go on to explain the complexities caused by the failure of one party to appear. The board of arbitrators is not empowered to grant continuances. Therefore, if a party does not appear and judgment is awarded against him, the only way to continue or re-open the proceedings is on appeal by the non-appearing party. Id. at explanatory notes.

When an appeal is taken from an arbitration award entered in one parties’ absence, the parties are assigned a date for a status conference, at which a mandatory settlement conference date is assigned. Phila. Civil Practice § 13-2.0 (10th Ed.). Dismissal at this stage is usually only warranted when a defendant lacks a satisfactory excuse for failure to appear or be prepared in front of the trial court. Stock, 415 Pa. Super. at 120, 608 A.2d at 555. Although the Pennsylvania Rules of Civil Procedure allow a case to be dismissed if a litigant does not appear, that rule applies only to trial proceedings, not arbitration hearings. Pa.R.C.P. 218. The Pennsylvania Rules of Civil Procedure further provide, however, that the rules be enforced liberally, in a manner that will effectuate “the just, speedy and inexpensive determination” of every proceeding to which they apply. Id. (citing Pa.R.C.P. 128(a)). (emphasis added) Rule 128 further specifies that the Supreme Court did not intend any results that are “absurd... or unreasonable.” Pa.R.C.P. 128(a). The court in Stock reprimanded the lower court for not affording the defendant a chance to explain his prior absence before imposing the drastic remedy of dismissal. Stock, 415 Pa. Super. at 120-21, 608 A.2d at 555. The court found such an act unreasonable and therefore in contravention of the Rules of Civil Procedure. Id. The Stock court further stressed that the trial court keep in mind the message promulgated by the Supreme Court of Pennsylvania, that lawsuits “are more than numbers... [individual cases are... of great importance to the litigants involved, and courts must not overreach in their zeal to move cases to such an extent as to allow for no deviations from strict and literal adherence to policies-” Id., 415 Pa. Super. at 122, 608 A.2d at 556 (citing Budget Laundry Co. v. Munter, 450 Pa. 13, 21-22, 298 A.2d 55, 58 (1972)).

A policy has been adopted in Philadelphia County which applies to arbitrations where one of the parties has failed to appear or failed to offer evidence and judgment is awarded against the party who does not appear. The absent party must then file an appeal for a trial de novo in the common pleas court. According to the Philadelphia policy, the appeal may be dismissed and the case remanded for further arbitration. Pantoja v. Sprott, 721 A.2d 382, 384 (Pa. Super. 1998) (citing Tauss v. Goldstein, 456 Pa. Super. 376, 384 n.7, 690 A.2d 742,

746 n.7 (1997); Turay v. Irby, 455 Pa. Super. 118, 119-22, 687 A.2d 819, 820-21 (1996), appeal denied, 550 Pa. 684, 704 A.2d 639 (1997). Without this policy, litigants may avoid the compulsory arbitration system and obtain a speedier trial date by failing to appear at arbitration. Pantoja, 721 A.2d at 384-85. The compulsory arbitration system was created to alleviate the tremendous case load of the trial courts in Pennsylvania. If parties are allowed to circumvent this system by failing to appear, the system’s purpose is not being served. To prevent these abuses, the policy at issue has been used to force litigants to fully present cases at the arbitration level before exercising the right to appeal and have a trial de novo. Id. The Pantoja opinion formally adopted this policy to stop attempts to avoid arbitration in Philadelphia. Id. at 385. The Superior Court in Pantoja examined its prior decisions as well as those of the Supreme Court of Pennsylvania and found the Philadelphia policy to be in keeping with the rules and precedents. Id. (citing discussions of a party’s right to an appeal de novo in Rieser v. Glukowsky, 435 Pa. Super. 530, 538, 646 A.2d 1221, 1225 (1994); McGonigle v. Currence, 387 Pa. Super. 511, 564 A.2d 508 (1989); Hall v. Reeb, 382 Pa. Super. 452, 555 A.2d 926 (1989).

“The Philadelphia policy, however, does not deny a party the statutory right to appeal for a trial de novo; it merely delays the right. This policy strikes a balance between the need to maintain the statutory right to appeal and the need to encourage compliance with both the letter and the spirit of the compulsory arbitration act.” Pantoja, 721 A.2d at 385. (emphasis in original)

The policy announced explicitly by the Superior Court in Pantoja applies to this case. The exact behavior the court was trying to prevent was employed. When the Cafe Zesty did not appear at the first arbitration and then appealed, the trial court did not abuse its discretion in dismissing the case and remanding it to arbitration. Not only was the court’s act within its discretion, it was mandated by the Superior Court’s approval of the policy to be followed. Going forward with a trial court after the first arbitration would have allowed the defendant an immediate trial de novo without having participated in the compulsory arbitration procedure. The trial court properly remanded the case. The policy is not unwritten. It was adopted in writing by the Superior Court in Pantoja. The policy does not violate any of the applicable rules of civil procedure and does not have to be promulgated by the legislature to be effective. The policy does not deprive any litigant of any constitutional rights. As stated by the Superior Court, supra, the right to appeal is not being denied it is being delayed. Nygard was not injured by the act of the trial court in remanding the case to arbitration. Nygard’s award was actually increased as a result of that action, in light of the amount of the current judgment in Nygard’s favor. The first appeal to the trial court from arbitration was properly dismissed and remanded in order to maintain the integrity of both the trial and compulsory arbitration systems.

V. CONCLUSION

Based upon the foregoing, the trial court properly remanded the case to arbitration after the defendant appealed the first award in favor of the plaintiff. The policy used by the court in doing so has been approved by the Pennsylvania Superior Court and review has been denied by the Pennsylvania Supreme Court. Therefore, this court properly entered judgment, as agreed upon by the parties, in favor of the plaintiff, Charles Nygard. Thus, plaintiff’s motion was properly denied and this appeal should be dismissed.


author: BAYLEY, J.,

text:
    Knisely v. Consolidated Rail Corporation

      C.P. of Cumberland County,
    no. 99-3184.

      G. Sander Davis, for plaintiff.

      Craig J. Staudenmaier, for defendant.
    March 1, 2001
   BAYLEY, J.,

Plaintiff, Earl Knisely, filed an amended complaint against defendant, Consolidated Rail Corporation, seeking damages for injuries he alleges he incurred when he slipped and fell on Conrail’s property on January 18, 1999. Count I is a cause of action under the Federal Employers’ Liability Act, 45 U.S.C. 51. Count II is a cause of action under common-law negligence. Defendant filed a motion for a partial summary judgment on the FELA claim. The issue was briefed and argued on February 14, 2001.

In Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998), the Supreme Court of Pennsylvania set forth the standard for a motion for summary judgment under Pa. Rules of Civil Procedure 1035.1-1035. 5: “we must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 143-45, 615 A.2d 303, 304 (1992). In order to withstand a motion for summary judgment, a non-moving party ‘must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.’ Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Finally, we must stress that summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).”

For plaintiff to recover under FELA, he must prove that (1) defendant is a common carrier by railroad engaged in interstate commerce; (2) he was employed by defendant with duties furthering such commerce; (3) his injuries were sustained while he was so employed; and (4) his injuries were the result of the negligence of defendant. 45 U.S.C. §51. Conrail argues that the undisputed facts show that when plaintiff fell on January 18, 1999, he was on its premises solely for the purpose of conducting union business. Therefore, it argues that he was not acting within the scope of his employment or in furtherance of its business which precludes him from a recovery under FELA.

Plaintiff argues that there is evidence in the record to show that he was injured when he got out of his vehicle and slipped and fell on ice in the parking lot of defendant’s Enola rail yard. At the time, he was employed by defendant as a trainman. He was also the local chairman for the United Transportation Union, a local union representing all of the trainmen employed by defendant at the Enola facility. When he fell he was off duty but he was going to a building in the Enola facility in which Conrail provided him with a bulletin board and mailbox for use by his union. Plaintiff testified in a deposition that he always went to that building for an hour to an hour and a half before a union meeting, which he was going to later on January 18, and “all the guys in my Local know that I go there . . . .” He testified that most of the time he conducted union business there, both before and after union meetings. As to the day he fell, plaintiff testified:

“I don’t truly remember any particular person I was supposed to talk to but I can’t remember any time that I didn’t have something working, that I didn’t have to talk to somebody in that building to take care of whatever the problem was.”

Plaintiff testified that he conducted union business at the facility:

“Because I see a lot of the individual there, I see a lot of management there, which is where I have to get the problem solved, if I have a problem.”

He further testified:

“I do help to keep the railroad running smoothly by administering to the minor problems that always develop between workers and the company ... I have always considered the work that I have done in that building was in the interest of and benefiting Conrail

DISCUSSION

FELA provides at 45 U.S.C. §51:

“Every common carrier by railroad while engaging in commerce between any of the several states ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier....
“Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce; or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter. ” (emphasis added)

Congress added the second paragraph of section 51 to FELA in 1939 to circumvent a decision of the United States Supreme Court that had limited benefits to employees engaged in interstate commerce at the moment of injury. Reed v. Pennsylvania Railroad, 351 U.S. 502, 76 S.Ct. 958, 100 L.Ed. 1366 (1956).

In Rostocki v. Consolidated Rail Corporation, 19 F.3d 104 (1994), plaintiff, an employee of Conrail, while on disability status, drove to defendant’s rail yard to pick up a paycheck for wages he had earned before going on disability. The United States Court of Appeals for the Second Circuit concluded:

“We cannot say that as a matter of law Rostocki was acting ‘for a private purpose’ at the time of injury. See Baker v. Texas & Pac. Ry., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959) (per curiam) (allowing court to decide issue as matter of law where reasonable jurors could reach only one conclusion). Getting paid and picking up a paycheck are necessary incidents to employment. Rostocki testified that on the date of the accident, he entered the rail yard solely to get his paycheck for regular wages. He further testified that Conrail required employees to pick up their paychecks at the rail yard. The jury could reasonably find that Rostocki suffered his injury while he was employed.” Rostocki, 19 F.3d at 106-107.

In Fowler v. Seaboard Coastline Railroad Co., 638 F.2d 17 (1981), plaintiff, an employee of defendant railroad, was killed on the railroad’s property during working hours on an enforced paid lunch break. Plaintiff and another employee in turn rode plaintiff’s motorcycle down the road and back across a bridge to the parking lot. As plaintiff was returning from his ride and approaching the bridge he failed to negotiate a curve onto the bridge. His estate brought a suit under FELA maintaining that the death resulted from the negligence of the railroad in improperly constructing and maintaining the bridge where the accident occurred. Citing cases, the United States Court of Appeals for the Fifth Circuit noted that “[s]cope of employment has been interpreted to encompass acts incidental to the employment as well as the actual work.” Id. at 20. The court concluded that the proper test for scope of employment in a FELA case is: “[w]hether the act was one which the employer might reasonably have foreseen and which the employee might reasonably have thought necessary in the interest of or in the benefit of the employer.” Id.

The court held: “[i]t is clear that the Act did not require that [plaintiff] actually be engaged in his duties at the time of injury; had the injury occurred while he was eating his lunch on company premises, he would have been covered, as this activity is customarily engaged in by all employees working an eight-hour shift and is incidental to the employment. Moreover, the act is reasonably foreseen by the employer. Here, however, the trial judge found that the motorcycle excursion was a purely private activity totally unrelated to the employment and denied recovery .... [The Act] cannot be extended to cover activities not necessarily incident to or an integral part of employment in interstate commerce. It obviously does not cover activities undertaken by an employee for a private purpose and having no causal relationship with his employment.” Id.

In the present case, defendant relies on Lafferty v. Pennsylvania Railroad Company, 124 F. Supp. 324 (E.D. Pa. 1954). In Lafferty, the plaintiff instituted an action under FELA alleging that she was injured while an employee of the railroad when she was assaulted by her supervisor. The incident occurred while plaintiff was attending a union meeting on railroad property. She was not on a tour of duty, and was at the meeting in a purely representative capacity on behalf of her union. The United States District Court for the Eastern District of Pennsylvania concluded that plaintiff’s “[activities were not part of her work for the railroad, nor necessary to its performance but were an activity undertaken for a private purpose .... It follows, therefore, both as a fact and as a conclusion of law that plaintiff at the time of the alleged injury was not on her employer’s premises as a necessary incident to discharge of the duties of her employment within the contemplation of the Federal Employers’ Liability Act.” Id. at 327.

The district court did not discuss the 1939 amendment to section 51 of FELA. It did not analyze the facts in terms of what plaintiff’s employer might reasonably have foreseen, and what plaintiff might reasonably have thought necessary in the interest of or in the benefit of her employer.

In Southern Pacific Co. v. Gileo, 351 U.S. 493, 76 S.Ct. 952, 100 L.Ed. 1357 (1956), the Supreme Court of the United States stated that the amendatory language to FELA “[mjakes it plain that if a railroad employee either furthers interstate commerce in the performance of any part of his duties or in any way ‘directly or closely and substantially’ affects commerce,” the employee is covered by FELA. Id. at 499. Since 1951, the Railroad Labor Act has required that all interstate railroads allow for “union shop” agreements that require that its employees be members of unions as a condition of employment. 45 U.S.C. §152, Eleventh; annot. This requirement promotes permanent conferencing and negotiation between carriers on the one hand and employees through their unions on the other hand. International Association of Mechanist v. Street, 367 U.S. 740, 6 L.Ed.2d 1141, 81 S.Ct. 1784 (1961).

Given these circumstances, and not being bound by Lafferty v. Pennsylvania Railroad, supra, we conclude that a jury question is presented in the within case. The facts here are more akin to those in Rostocki v. Consolidated Rail Corporation, supra, than to those in Fowler v. Seaboard Coastline Railroad Co., supra. Although he was not on duty, if plaintiff was injured on defendant’s property while proceeding to attend to his claimed union activities, it is for a jury to determine whether (1) that might reasonably have been foreseen by Conrail, and (2) plaintiff might reasonably have thought his acts as necessary in the interest of or in the benefit of Conrail. If the answer to both of these questions is yes, plaintiff’s claim comes within the ambit of FELA as incidental to his employment. Otherwise, it does not.

ORDER

And now, March 1, 2001, the motion of defendant, Consolidated Rail Corporation, for partial summary judgment on plaintiff’s FELA count, is denied.

      . See also, Hill v. Gulf, Mobil & Ohio Railroad Co., 238 Miss. 811, 120 So.2d 157 (1960).


author: WHERRY, J.,

text:
    Fay v. Thiel College

      C.P. of Mercer County,
    no. 1998-2227.

      Mark J. Krauland and Russell G. Roll, for plaintiff.

      Paul E. Pongrace III, for defendants.
    December 31, 2001
   WHERRY, J.,

This matter is before this court pursuant to defendants’ motion for summary judgment. For the reasons set forth below, this court shall deny defendants’ motion for summary judgment.

I. FACTUAL BACKGROUND

This lawsuit centers around injuries suffered by plaintiff Amy Fay while attending a study abroad trip to Peru sponsored by Thiel College. At the time that plaintiff participated in the Thiel-sponsored trip to Peru, plaintiff was a full-time college student at Thiel College. The trip was supervised by three faculty members-— Curtis Thompson, professor of religion; Brenda Brasher, professor of religion; and Barbara Heming, professor of language (the faculty supervisors). The trip took place in May of 1996, after the completion of the spring semester of the 1995-1996 school year. The trip to Peru was offered and sponsored by Thiel College in conjunction with a class taught by Professor Thompson entitled “Liberation theology in a Peruvian context.” Most of the students who went on the trip to Peru, including plaintiff, were enrolled in Professor Thompson’s course. The purpose of the three-week trip to Peru was to see and experience first hand liberation theology in practice.

Prior to departing on the trip to Peru, plaintiff was required by Thiel College to sign certain documents germane to defendants’ motion for summary judgment, namely a “Waiver of Liability” form and a “Thiel College consent form.” The waiver of liability form was executed by plaintiff on April 18, 1996, and the consent form was executed by plaintiff on April 26, 1996. AH students attending the trip to Peru were required by Thiel College to execute both documents. It is undisputed that if a student would have refused to sign one or both of the documents, Thiel College would not have permitted that student to go on the trip to Peru.

During the trip plaintiff became ill. She was taken to a medical clinic located in the city of Cuzco, where she was eventually admitted. After plaintiff was admitted to the medical clinic, all of the faculty supervisors and all of the other students left on a prescheduled trip that was to last several days, leaving plaintiff alone at the clinic with only a Lutheran missionary by the name of Karen Helikson to act as plaintiff’s translator. Plaintiff had only met Ms. Helikson while in Peru. Ms. Helikson was not in any way related to Thiel College and was not in any way acting as an agent and/or representative of Thiel College.

During plaintiff’s stay in the Peruvian medical clinic and during the absence of any of the faculty supervisors, plaintiff was subjected to the unnecessary surgical removal of her appendix. After plaintiff was informed, through translation by Ms. Helikson, that the doctor would be removing her appendix, plaintiff went through a list of alternatives — plaintiff asked if the surgery was absolutely necessary; plaintiff asked to be transferred to a hospital in Lima; plaintiff asked to fly home; plaintiff asked to call her parents in the United States prior to the surgery. After all of her requests were denied, plaintiff was then reluctantly prepared for surgery. The appendectomy was apparently authorized by Ms. Helikson— who, once again, was a Lutheran missionary who was not in any way related to Thiel College or acting as an agent and/or representative of Thiel College. Ms. Helikson requested to observe plaintiff’s surgical procedure from the viewing room, but was not permitted to do so. After her appendectomy was completed, plaintiff was sexually assaulted by the same surgeon who had performed the surgery and the same anesthesiologist who had administered the anesthesia — both of whom were men.

n. STANDARD OF REVIEW

The standard of review in deciding a motion for summary judgment is as follows:

“Summary judgment is properly granted where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.C.P. 1035(b). ‘The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.’ ... Summary judgment may be entered only in those cases where the right is clear and free from doubt.” Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992). (citations omitted)

HI. DISCUSSION

A. The Exculpatory Clause Contained in the Waiver of Liability Form Is Not Valid

Defendants first contend that judgment should be entered in their favor because, by signing the waiver of liability form, plaintiff waived any and all claims against defendants arising out of or in connection with plaintiff’s participation in the study abroad trip to Peru. The relevant exculpatory language in the waiver of liability form is as follows:

“As a condition of my participation in the study or project, I understand and agree that I am hereby waiving any and all claims arising out of or in connection with my travel to and from and/or my participation in this project or study that I, my family, my heirs or my assigns may otherwise have against Thiel College and/or its personnel.” See waiver of liability form, exhibit A to defendants’ brief in support of motion for summary judgment.

In Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966), the Pennsylvania Supreme Court set forth the following standard for determining the validity and enforceability of an exculpatory clause:

“Generally speaking, an exculpatory clause is valid if: (a) ‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State ....’; (b) ‘[the contract is] between persons relating entirely to their own private affairs’; (c) ‘each party is a free bargaining agent’ and the clause is not in effect ‘a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.’
“Assuming . . . that the . . . exculpatory clause satisfies all three conditions and is valid, our case law requires that, even if valid, an exculpatory clause must meet certain standards. ‘Despite the general validity of exculpatory provisions, certain standards have been established which must be met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.’
“Such standards are: (1) contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law; (2) such contracts ‘must spell out the intention of the parties with the greatest of particularity’ and show the intent to release from liability ‘beyond doubt by express stipulation’ and ‘[n]o inference from words of general import can establish it’; (3) such contracts must be construed with every intendment against the party who seeks the immunity from liability; (4) the burden to establish immunity from liability is upon the party who asserts such immunity.” Id. at 291-93, 224 A.2d at 622-23. (citations omitted) (emphasis in original)

With respect to the third requirement, i.e., that the contract is not, in effect, a contract of adhesion,

“[A]n adhesion contract is a ‘standardized contract form offered to consumers of goods and services on [an] essentially “take it or leave it” basis without affording [the] consumer a realistic opportunity to bargain and under such conditions that [the] consumer cannot obtain [the] desired product or services except by acquiescing [to the] form contract.’ . . . The fundamental nature of this type of contract is such that the consumer who is presented with it has no choice but to either accept the terms of the document as they are written or reject the transaction entirely.” Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d 689, 700 (Pa. Super. 2000) (quoting Denlinger Inc. v. Dendler, 415 Pa. Super. 164, 174-75, 608 A.2d 1061, 1066 (1992) (quoting Black’s Law Dictionary (5th ed. 1979))). (citations omitted)

In the present case, Professor Thompson testified that Thiel College insisted that the students going on the Thiel-sponsored trip to Peru sign both the waiver of liability form and the consent form. See deposition of Curtis Thompson atp. 20, lines 8-13. Professor Thompson testified that, if a student did not sign or refused to sign the necessary forms, that student would not have been permitted to go on the trip to Peru. See deposition of Curtis Thompson atp. 20, lines 8-13. In addition, plaintiff testified that, to her knowledge, every student that participated in the Thiel-sponsored trip to Peru was required to sign both the waiver of liability form and the consent form. See deposition of Amy Fay at p. 24, lines 7-9. Finally, Dr. Richard H. Rugen, the vice-president of administrative services at Thiel College, stated that “Thiel College required the students taking part in the study abroad trip to Peru in May of 1996 to sign what was entitled the ‘Waiver of Liability’ form.” See affidavit of Dr. Richard H. Rugen, exhibit B to defendants’ brief in support of motion for summary judgment.

Both plaintiff and defendants agree that the waiver of liability form was presented to plaintiff on a take-it-or-leave-it basis, i.e., plaintiff either signed the form or she did not go on the Thiel-sponsored trip to Peru. The terms of the waiver of liability form were not bargained for by plaintiff and, in fact, plaintiff had no choice in its terms and provisions. Plaintiff simply executed the waiver of liability form, which she was powerless to alter, because she was told that she had to sign that form in order to go on the study abroad trip to Peru. Because rejecting the transaction entirely was plaintiff’s only option other than accepting the contract with the exculpatory clause, this court finds that the subject waiver of liability form is a contract of adhesion. Based upon that finding, this court concludes that the exculpatory clause contained in the waiver of liability form is not valid in that it fails to satisfy one of the three requirements for the validity of such a clause. See e.g., Garbish v. Malvern Federal Savings and Loan Association, 358 Pa. Super. 282, 302, 517 A.2d 547, 557 (1986) (court found that contract containing the exculpatory clauses was a contract of adhesion and, thus, concluded that the exculpatory clauses contained therein were not valid).

B. Defendants Owed Plaintiff a Special Duty Pursuant to the Consent Form That Plaintiff Was Required to Execute in Order to Attend the Thiel-Sponsored Study Abroad Trip to Peru

Defendants contend that they had no special relationship with plaintiff beyond the fact that plaintiff was a student at Thiel College. Defendants go on to argue that, since there was no special relationship between the parties, defendants owed plaintiff no special duty beyond that of a reasonable standard of care, and that defendants did not violate that reasonable standard of care in leaving plaintiff alone at the Peruvian medical clinic while the rest of the group continued on with the prearranged travel itinerary.

Plaintiff, on the other hand, contends that (1) the consent form created a special relationship between defendants and plaintiff, and (2) pursuant to that special relationship, defendants owed a duty to plaintiff to secure, in the event of her sickness or injury, “whatever treatment is deemed necessary, including the administration of an anesthetic and surgery.” See consent form, exhibit D to defendants’ brief in support of motion for summary judgment. Plaintiff goes on to argue that (1) pursuant to that duty, one or more of the faculty supervisors should have stayed with plaintiff during her stay at the Peruvian medical clinic, and (2) defendants breached that duty by “abandoning” her in the Peruvian medical clinic. In the alternative, plaintiff argues that, even if no special relationship existed between plaintiff and defendants as a result of the consent form, defendants owed plaintiff a duty to act reasonably under the circumstances, which duty defendants breached in abandoning plaintiff at the Peruvian medical clinic.

Whether a defendant owes a duty of care to a plaintiff is a question of law. Morena v. South Hills Health System, 501 Pa. 634, 642 n.5, 462 A.2d 680, 684 n.5 (1983). See also, Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir. 1993). The Pennsylvania Supreme Court has stated that “[d]uty, in any given situation, is predicated on the relationship existing between the parties at the relevant time . . . .” Morena, 501 Pa. at 642, 462 A.2d at 684.

Although it is true that a college does not owe its students an in loco parentis duty simply because of the college/student relationship, Alumni Association v. Sullivan, 524 Pa. 356, 364, 572 A.2d 1209, 1213 (1990) (court refused to impose liability upon the university for the negligent acts of one its students, who had committed those acts after becoming intoxicated at a fraternity party where he had been openly served alcohol even though he was underage), it is also true that a college can owe a particular student a special duty as a result of a special relationship that exists between the college and that particular student. Kleinknecht v. Gettysburg College, 989 F.2d at 1366-69 (court predicted that the Supreme Court of Pennsylvania would hold that the college owed the student a duty of care in his capacity as an intercollegiate athlete engaged in school sponsored intercollegiate athletic activity for which he had been recruited). In Alumni Association, the court refused to impose liability upon the university for the negligent acts of its students. In the present case, however, unlike the Alumni Association case, Thiel College and its employees are asking this court to absolve them of liability for their own allegedly negligent acts — not for the allegedly negligent acts of their students.

After carefully reviewing all of the evidence of record, this court concludes as a matter of law that Thiel College did owe plaintiff a special duty of care as a result of the special relationship that arose between Thiel College and plaintiff pursuant to the consent form that she was required to execute prior to' participating in the Thiel-sponsored trip to Peru. Pursuant to the consent form, and in the event that plaintiff became sick or injured, the faculty supervisors had a duty to “secure whatever treatment is deemed necessary, including the administration of an anesthetic and surgery.” See consent form, exhibit D to defendants’ brief in support of motion for summary judgment. .

Defendants argue that, even if they owed a duty to plaintiff as a result of a special relationship created pursuant to the consent form, they fulfilled that duty by making sure that plaintiff was taken to a Peruvian medical clinic. Plaintiff, on the other hand, argues that defendants were obligated at a minimum to make sure that at least one of the faculty supervisors was physically present with plaintiff at the Peruvian medical clinic while she was admitted therein. This court, however, need not decide that issue because the determination of whether defendants breached the duty of care that they owed to plaintiff is, of course, a question of fact for the jury.

C. Defendants Can Be Liable for Breaching Their Special Duty to Plaintiff Created Through the Consent Form

Next, defendants contend that judgment should be entered in their favor because defendants cannot be liable for the unforeseeable sexual assault and/or medical malpractice of the Peruvian medical staff. Defendants argue that, because it is uncontroverted that the surgery and the sexual assault took place in the operating room, which was separate and apart from the common areas in the clinic and which was kept private from the general public, plaintiff will be unable to prove that the presence of one of more of the faculty supervisors would have prevented the medical malpractice and/or the sexual assault. In addition to their factual argument, defendants contend, in essence, that even if the facts supported a finding that defendants were negligent, the acts of the Peruvian doctors superseded and thus negated the negligence of defendants. See Restatement (Second) of Torts §448 (1965).

In response, plaintiff relies upon section 323 of the Restatement (Second) of Torts, entitled “Negligent performance of undertaking to render services,” which provides as follows:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
“(a) his failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.” See Restatement (Second) of Torts §323 (1965).

Section 323(a) of the Restatement (Second) of Torts has long been recognized as part of the law of Pennsylvania. Jones v. Montefiore Hospital, 494 Pa. 410, 416, 431 A.2d 920, 923 (1981). See also, Hamil v. Bashline, 481 Pa. 256, 268-69, 392 A.2d 1280, 1286 (1978). Based upon that section of the Restatement (Second) of Torts, plaintiff argues that in light of the consent form, defendants undertook an obligation to see to the welfare of plaintiff, and defendants performed said obligation in a negligent manner. Plaintiff contends that, had one or more of the faculty supervisors been present at the Peruvian medical clinic when the surgery took place, the Peruvian doctors would not have performed the unnecessary surgery and/or would not have committed the sexual assault.

The effect of section 323(a) of the Restatement (Second) of Torts is “to relax the degree of certainty ordinarily required of a plaintiff’s evidence to provide a basis upon which a jury may find causation.” Jones, 494 Pa. at 416, 431 A.2d at 923. Stated more succinctly, section 323(a) was intended to relax a plaintiff’s burden of proving causation. In the present case, therefore, plaintiff’s burden under section 323(a) is to prove that defendants’ negligence increased the risk of harm to plaintiff and that such increased risk of harm was a substantial factor in bringing about the harm actually inflicted upon plaintiff. Contrary to the position set forth by defendants in their brief, plaintiff need not prove that, had one or more of the faculty supervisors been physically present with plaintiff at the Peruvian medical clinic, the unnecessary surgery and/or sexual assault would have been prevented. That is a much greater burden than section 323(a) requires.

Whether the lack of the presence of one or more of the faculty supervisors increased the risk of harm to plaintiff is a genuine issue of material fact. The mere fact that the operating room (like most operating rooms) was private and not open to the public does not as a matter of law preclude a jury from finding that the lack of the presence of one or more of the faculty supervisors with plaintiff at the Peruvian medical clinic increased the risk of the male Peruvian doctors unnecessarily performing surgery on plaintiff and/or sexually assaulting plaintiff. Moreover, discovery in this case is not yet complete. Although this court does not know how plaintiff intends to prove that defendants’ alleged negligence increased the risk of harm to plaintiff, this court can certainly think of possible evidence that could prove that the physical presence of one or more of the faculty supervisors with plaintiff at the Peruvian medical clinic could have changed the outcome in this case. Furthermore, whether defendants’ negligence increased the risk of harm to plaintiff is a causation question, and questions regarding causation are almost always questions for the jury. See e.g., Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968). With respect to defendants’ superseding cause issue, making a determination of whether someone’s negligence is a superseding cause involves several genuine issues of material fact. Section 448 of the Restatement (Second) of Torts, entitled “Intentionally tortious or criminal acts done under opportunity afforded by actor’s negligence;” provides as follows:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” See Restatement (Second) of Torts §448 (1965).

For example, in the present case, the jury would have to determine whether, at the time of the allegedly negligent conduct of the faculty supervisors, the faculty supervisors realized or should have realized that (1) “abandoning” plaintiff in the Peruvian medical clinic was likely to create a situation whereby the male Peruvian doctors could take sexual advantage of a young American female, and (2) the male Peruvian doctors might avail themselves of the opportunity to commit such a tort and/or crime.

D. The Consent Form Is Not a Waiver of Liability Form

Finally, defendants contend that the consent form that plaintiff was required by Thiel College to sign is somehow another waiver of liability form. The relevant language from the consent form, as executed by plaintiff, is as follows:

“On rare occasions, an emergency requiring hospitalization and/or surgery develops. Laws and regulations vary in foreign countries regarding those instances in which the consent of a parent/guardian/spouse is required in order for a student to be administered an anesthetic or have surgery. Therefore, we request that parent/guardian/spouse sign the following statement to prevent a dangerous delay, if an emergency should occur, and we are unable to contact the parent/guardian/spouse. Such emergencies are rare; however, we want to observe the utmost precautions for the welfare of each participant. Circumstances permitting, students will also be asked to sign a standard consent to surgery form should surgery be required.

“In the event of sickness or injury of my/our/daughter/son/ward/spouse/myself, Amy L. Fay (name of student), who is 22 years of age, birthday November 5, 1973, I/we hereby authorize the representative abroad of Thiel College to secure whatever treatment is deemed necessary, including the administration of an anesthetic and surgery.” See consent form, exhibit D to defendants’ brief in support of motion for summary judgment. (The italicized portions represent blanks that were filled in by plaintiff.)

Defendants assert that the “intention of the defendants in having plaintiff and the other students sign the medical consent form before leaving on the trip was to be free from liability if the defendants needed to make medical decisions for the students while in Peru.” See defendants’ brief in support of motion for summary judgment at unnumbered page 11.

This argument is clearly without merit. Nowhere in the consent form do the words “waiver,” “release,” or “waiver of liability,” or any other words of similar import and effect appear. As discussed earlier, a waiver of liability form “‘must spell out the intention of the parties with the greatest of particularity’... and show the intent to release from liability ‘beyond doubt by express stipulation’ and ‘[n]o inference from words of general import can establish it.’” Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. at 292, 224 A.2d at 623. (citations omitted) The consent form does not spell out, with the greatest of particularity and by express stipulation, the intention of the parties to release Thiel College from any liability stemming from any medical decisions that one or more of the faculty supervisors made on behalf of, or in conjunction with, a student while participating in the Thiel-sponsored study abroad trip to Peru. The consent form is an unsophisticated health care power-of-attomey from plaintiff in favor of defendants. It is not also, however, a waiver of liability form.

An appropriate order follows.

ORDER

And now, December 31, 2001, and for the reasons set forth in the foregoing opinion, it is hereby ordered that defendants’ motion for summary judgment is denied.

      . The primary language of Peru is Spanish. Plaintiff spoke a little Spanish, but was not fluent in Spanish.

      . Plaintiff knows that she was sexually assaulted because she was fully conscious during and after her surgery. The anesthesiologist gave plaintiff some type of a local anesthetic, rather than a general anesthetic.


author: CORBETT, J.,

text:
    Griffiths v. Ulmer

      C.P. of Lackawanna County,
    no. 99-CV-2145.

      Kevin J. Foley, for plaintiffs.

      James A. Doherty, for defendants.
    March 14, 2002
   CORBETT, J.,

This matter comes before the court by way of defendants’ motion to compel plaintiff to sign a confidentiality agreement, filed on April 11, 2001. Defendants claim that documents produced in response to discovery requests are of a proprietary nature containing financial terms, trade secrets, and other confidential information, the release of which would be detrimental to the defendants, especially if said information became available to competitors or other parties who are not involved in this litigation. Plaintiffs filed an answer to defendants’ motion on April 19, 2001, specifically denying that the documents produced are proprietary in nature and/or contain financial terms, trade secrets and/or other confidential information which would be detrimental to the defendants if released. Argument on this matter was held on December 17, 2001, and accordingly, this matter is ripe for disposition. For the reasons discussed below, this court denies defendants’ motion to compel.

FACTS AND PROCEDURAL BACKGROUND

This action arises from an injury suffered by the plaintiff, David Griffiths, on May 5, 1997, while he was working on premises owned, operated and controlled by defendants Procter & Gamble, located in Mehoopany, Pennsylvania. Plaintiff David Griffiths’ head was struck by a chisel resulting in severe head injuries requiring brain surgery. At the time of the incident, plaintiff was attended to by defendant Ulmer, an employee of Procter & Gamble. Plaintiff was allegedly instructed by the various defendants not to obtain medical attention, resulting in a three-month delay in treatment for plaintiff David Griffiths’ injuries. Plaintiff Terri Griffiths, David Grif-fiths’ wife, is bringing a claim for loss of consortium.

Plaintiffs initiated pre-complaint discovery upon the defendants, and the defendants produced documents in response to those discovery requests. The defendants then requested that the plaintiffs sign a confidentiality agreement, thereby consenting to keep all such documents produced by the defendants confidential. Plaintiffs’ counsel refused to sign such an agreement but agreed to keep all documents confidential pending this court’s decision on the defendants’ motion to compel.

DISCUSSION

Granting of Protective Order in Discovery Proceedings

Pennsylvania Rule of Civil Procedure 4012 governs protective orders in discovery proceedings. Specifically, Rule 4012(a)(9) controls the discovery of trade secrets:

“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 one or more of the following:
“(9) that a trade secret or other confidential research, development or commercial information shall not be disclosed or be disclosed only in a designated way.” Pa.R.C.P. 4012(a)(9).

The granting of relief in a discovery proceeding is dependent upon a prima facie showing of necessity, since the relief is not to be granted as a matter of right. In re Estate of Roart, 390 Pa. Super. 38, 568 A.2d 182 (1989). Under Pa.R.C.P. 4012(a)(9), there is no absolute privilege or unconditional bar as to disclosure of such matters. Whether disclosure is to be allowed, if protection is to be afforded, and the form of such protection, are matters to be determined according to the discretion of the court. Miller Oral Surgery Inc. v. Dinello, 416 Pa. Super. 310, 611 A.2d 232 (1992). A claim for this type of relief must be supported by “particularization demonstrating that such relief is warranted.” Ramada Inns Inc. v. Drinkhall, 490 A.2d 593, 599 (1985).

The party moving for a protective order based on Pa.R.C.P. 4012 bears the burden of establishing the objectionable nature of the discovery he is withholding. The party objecting to discovery has not sustained his burden with a showing of mere annoyance. Rather, Rule 4012(a) provides that an order shall be entered only “for cause shown ... to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense.”

This court has held that “general allegations of competitive harm are insufficient to meet this burden.” Chrysler v. Zigray, 7 D.&C.4th 1408 (Lacka. Cty. 1990). The defendant must set forth specific and concrete factual allegations that would support either a finding that the information which they are producing constitutes confidential research, development or commercial information or a finding that the dissemination of such information would harm the defendants. Id. at 411. Establishing good cause for the protective order requires appropriate testimony and other factual data, not the unsupported contentions and conclusions of counsel. Ornsteen v. Bass, 50 D.&C.3d 371 (1998); 18 Phila. 328 (1998).

Defendants have failed to set forth specific and concrete factual allegations that would support a finding that the information which they are producing constitutes confidential research, development or commercial information. Nor have defendants alleged any facts that would warrant a conclusion that the dissemination of such information would harm the defendants. Defendants aver “the documents produced are of a proprietary nature containing financial terms, trade secrets, and other confidential information which would be detrimental to the defendants especially if said information became available to competitors or other parties who are not involved in this litigation.” Defendants’ motion at 1-2, ¶4. The documents to which defendants are referring consist of safety manuals and procedures for defendants Watkins Engineering and Procter & Gamble. Moreover, the defendants have produced hundreds of such documents to the plaintiffs, yet nothing in defendants’ motion specifically points to any trade secrets within the multitude of documents produced. Defendants thus have failed to meet their burden of proof under Rule 4012.

Determination of Trade Secrets

Even if this court were to find that defendants have met their burden of proof by setting forth specific allegations, this court finds that the documents in question are not trade secrets and therefore not afforded protection under Rule 4012. The court must determine whether or not the documents here in question may properly be characterized as trade secrets and whether harm will occur to the defendant corporation if such order is granted. Chrysler v. Zigray, 7 D.&C.4th 1408. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Restatement of Torts §757, comment b (1939). A trade secret requires that the owner of the secret maintain a substantial amount of secrecy. Matters of public knowledge or general knowledge in an industry or matters which are completely disclosed by the goods which one markets cannot be appropriated by one as secret. West Mountain Poultry Company v. Gress, 309 Pa. Super. 361, 455 A.2d 651 (1982).

Trade secrets may cover a wide spectrum of categories. A definition of the possible objects of trade secrecy is subject to variations and changes depending upon the facts in each case. Pennsylvania has adopted the definition of trade secret set forth in comment (b) to section 757 of the Restatement of Torts which reads: “A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it . . . Van Products Company v. General Welding and Fabricating Company, 419 Pa. 248, 213 A.2d 769 (1965). An exact definition of a trade secret is not possible. Some factors to be considered in determining whether given information is one’s trade secret include the extent to which the information is known outside of his business; the extent to which it is known by employees and others involved in his business; the extent of measures taken by him to guard the secrecy of the information; the value of the information to him and to his competitors; the amount of effort or money expended by him in developing the information; the ease or difficulty with which the information could be properly acquired or duplicated by others. Id.

Novelty and uniqueness are not prerequisites for a product or concept to qualify as a trade secret. Computer Printing Systems Inc. v. Lewis, 281 Pa. Super. 240, 250 n.3, 422 A.2d 148, 153 n.3 (1980). A trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectible secret. Anaconda Company v. Metric Tool & Die Company, 485 F. Supp. 410 (E.D. Pa. 1980).

The documents at issue here are safety manuals. No Pennsylvania case law delineates whether a safety manual could be considered a trade secret. Ultimately, the test for whether something is a trade secret is whether the dissemination of such information would put the defendants at a competitive disadvantage. This court does not find how the dissemination of safety information could put defendants at a competitive disadvantage. Nothing in the documents supplied by the defendants, nor anything in the defendants’ motion itself indicates how the dissemination of the safety manuals would put the defendants at a competitive disadvantage. Therefore, this court finds that the documents provided by the defendants are not trade secrets and consequently not entitled to protection under Rule 4012.

CONCLUSION

Based on the forgoing, this court finds that defendants have not met the burden of proof required under Rule 4012. Moreover, this court finds that the documents provided by defendants do not constitute trade secrets and are therefore not entitled to protection under Rule 4012. For these and the above reasons, this court hereby denies the defendants’ motion to compel plaintiffs to sign a confidentiality agreement.

ORDER

Now, March 14, 2002, upon consideration of defendants’ motion to compel plaintiffs to sign a confidentiality agreement, plaintiffs’ response thereto, and argument thereon, it is hereby ordered, adjudged and decreed that defendants’ motion is denied.


author: KOUDELIS, J.,

text:
    Commonwealth v. Ervin

      C.P. of Delaware County,
    no. 175-00.

      William R. Toal III, for appellee.

      Mark Much, for appellant.
    February 5, 2002
   KOUDELIS, J.,

NATURE AND HISTORY OF THE CASE

This is a direct appeal from the court’s denial of appellant Robert Ervin’s post-sentence motions by way of orders dated October 5, 2001, and October 12,2001, respectively. The nature and history of the case is as follows. On January 20, 2000, the Newtown Township Police Department filed a criminal complaint charging appellant with simple assault, aggravated assault, recklessly endangering another person (REAP) and possession of an instrument of a crime (PIC). Appellant was incarcerated from the date of his arrest (January 20, 2000) until November 2, 2000, at which time he was released on nominal bail pursuant to Pa.R.Crim.P 600(e). As a condition of bail, the court ordered that appellant be subject to electronic home monitoring, as administered by the pretrial bail services unit of the Delaware County Court of Common Pleas. Appellant spent approximately 250 days in the Delaware County electronic home monitoring program.

On April 30, 2001, appellant entered an open guilty plea to the aggravated assault and PIC charges. The court permitted appellant to remain on the program until sentencing. After reviewing extensive sentencing memo-randa and a sentencing hearing on July 10, 2001, the court sentenced appellant to a term of imprisonment of two years less a day to five years less a day on the aggravated assault charge and to a consecutive term of five years county probation on the PIC charge.

On July 13, 2001, appellant filed timely post-sentence motions seeking reconsideration of the court’s sentence and for credit for time spent on electronic home monitoring while on pretrial release. The court held a hearing on appellant’s motion for reconsideration on August 14, 2001. Appellant’s motion for credit for time spent on electronic home monitoring was consolidated with Commonwealth v. Adam Van Skiver, no. 6398-97, which presented a similar issue, and a hearing was held before a three-judge panel on September 20, 2001.

The court denied both motions and appellant filed timely notice of appeal necessitating this opinion. In response to the court’s order pursuant to Pa.R.A.P. 1925(b), appellant presents the following two issues for appeal:

(1) Whether the court abused its discretion by refusing to sentence appellant in the mitigated range; and

(2) Whether the court erred by refusing to credit appellant with time spent on electronic home monitoring while on pretrial release.

For the reasons discussed below, the court did not abuse its discretion by not imposing a sentence in the mitigated range, and correctly refused to credit appellant with time spent on electronic home monitoring.

FACTS

When appellant entered an open guilty plea on April 30,2001, he stipulated to the facts set forth in the affidavit of probable cause. These facts are as follows:

On January 20, 2001, Officers Gilbert and Johnson of the Newtown Township Police Department were dispatched to 204 East Chelsea Circle to meet with an employee of the Adelphia Cable Company. Appellant resided at this address with his mother in a second story apartment. The officers spoke with a Leonard Brown and a Sean McGlone of Adelphia Cable Company who indicated that they had been attempting to speak with a resident (appellant) about a problem with the cable service. Further investigation would reveal that the cable line that passed through the appellant’s apartment had been cut. The officers knocked on appellant’s door, announced their presence, and the reason for their visit. There was no response but the officers heard voices and people moving about inside the apartment.

At that time, Officer Gilbert, with the help of one of the cable company employees, placed a ladder up to a balcony located on the side of the apartment and climbed up to the balcony. Officer Gilbert then knocked on the glass balcony door and again announced that he was a police officer and the purpose of his visit. Shortly thereafter, Officer Gilbert noticed the barrel of a shotgun parting the curtains on the other side of the glass door. Officer Gilbert dove for cover just as a shotgun blast came through the glass door. Officer Gilbert then returned fire. Approximately 15 to 20 minutes later, appellant surrendered to the police and was arrested and charged as described above.

DISCUSSION

I. Appellant’s Sentence

Appellant first argues that the court abused its discretion by failing to impose a sentence in the mitigated range despite being presented with mitigating evidence at the sentencing hearings.

A. Standard of Review

In determining sentencing, the court must examine the circumstances of the crime and the individual defendant’s background in addition to the sentencing guidelines. Commonwealth v. Edrington, 490 Pa. 251, 255-56, 416 A.2d 455, 457 (1980). The imposition of a sentence is within the sound discretion of the sentencing judge. Commonwealth v. Childs, 445 Pa. Super. 32, 37, 664 A.2d 994, 996 (1995). An abuse of discretion is not merely an error in judgment, but occurs when the sentencing court misapplies or overrides the law, exhibits partiality, bias or ill will, or reaches a conclusion that is manifestly unreasonable. Commonwealth v. Spencer, 344 Pa. Super. 380, 394, 496 A.2d 1156, 1164 (1985). The court must exercise its discretion within the following procedural limits: (1) the court must have sufficient and accurate information; (2) the court must consider the defendant’s individual characteristics and the circumstances of the particular offense; and (3) the court must state on the record the reasons for its sentence. Commonwealth v. Martin, 466 Pa. 118, 131-32, 351 A.2d 650, 656 (1976).

Review of the discretionary aspects of sentence is governed by 42 Pa.C.S. §9781(c) which provides that an appellate court shall vacate the sentence and remand to the sentencing court if it finds:

“(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
“(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
“(3) the sentencing court sentenced outside the guidelines and the sentence is unreasonable.”

The sentence imposed was within the guidelines at the bottom end of the standard range, therefore, subsection (2) is the only applicable basis for relief. Applying the previously described standard of review, the record clearly demonstrates that the court did not abuse its discretion by unreasonably applying the sentencing guidelines in refusing to impose a sentence in the mitigated range.

B. The Court’s Findings at Sentencing

The substance of appellant’s argument in favor of imposing a sentence in the mitigated range was that appellant suffered from a mental illness. At sentencing, appellant provided the court with voluminous documentation and extensive testimony regarding his mental illness. The court recognized that appellant suffered from a mental illness, but also noted that appellant had failed to seek treatment for his mental illness, and speculated that had appellant received treatment, the incident may never have taken place. (N.T. 7/10/2001 at 43.) The court also heard testimony from Officer Gilbert, the victim of the offense (N.T. at 26-29), and recognized that Officer Gilbert could have easily been killed.

The sentence imposed was almost at the bottom end of the standard range and was clearly an appropriate sentence. A sentencing court does not abuse its discretion by choosing one guideline range over another, and need not state the reasons for its decision. Commonwealth v. Wright, 411 Pa. Super. 111, 600 A.2d 1289 (1991). In non-capital cases, a sentencing court’s failure to adequately consider mitigating factors is not subject to appellate review provided that the sentence fell within the guidelines. Commonwealth v. Yanoff, 456 Pa. Super. 222, 690 A.2d 260 (1997); Commonwealth v. Hobson, 413 Pa. Super. 29, 604 A.2d 717 (1992). The weight that the sentencing court gives to each consideration is not subject to appellate review, despite the fact that another judge may have weighed each factor differently and imposed a different sentence. Commonwealth v. Green, 494 Pa. 406, 410, 431 A.2d 918, 920 (1981); Commonwealth v. Wareham, 259 Pa. Super. 527, 531, 393 A.2d 951, 953 (1978).

The above authority stands for the proposition that a court need not impose a mitigated range sentence simply because the court recognizes the presence of mitigating factors. In the instant matter, the record shows that the court carefully considered all sentencing options and attempted to fashion a sentence that would balance the need for appellant to receive treatment for his mental illness against the need for punishment based on the severity of the offense (that a police officer was almost killed in the line of duty). Nothing in the record demonstrates that the application of the sentencing guidelines was unreasonable, or demonstrates that the court abused its discretion. Given the information presented to the court, the sentence imposed was well within the permissible range of sentences.

II. Credit for Time Spent on Electronic Home Monitoring

The Pennsylvania Supreme Court’s decision in Commonwealth v. Chiappini, 566 Pa. 507, 782 A.2d 490 (2001), necessitated an inquiry into whether appellant was entitled to credit for time spent on electronic home monitoring while on pretrial release. The court declined to credit appellant with such credit for two reasons: (1) appellant, convicted of aggravated assault, was ineligible to serve a sentence of intermediate punishment, and therefore, could not receive credit for time spent on electronic home monitoring (an intermediate punishment) that was imposed as a condition of bail; (2) appellant was unable to demonstrate that the Delaware County electronic home monitoring program was similar to the Lackawanna County electronic home monitoring program addressed in Chiappini.

A. The Chiappini Decision

In Chiappini, the Pennsylvania Supreme Court addressed whether a defendant could receive credit towards his sentence for time spent in a home confinement/electronic home monitoring program. Chiappini, 566 Pa. at 519, 782 A.2d at 497. The defendant therein argued, and a plurality of the Pennsylvania Supreme Court agreed, that he was entitled to such credit because such time constituted “custody” within the meaning of 42 Pa.C.S. §9760.

In addressing the defendant’s claim, the Supreme Court looked to the definition of the term “custody” in section 9760 and concluded that the term “custody” includes restraints on liberty other than imprisonment. Chiappini, 566 Pa. at 525, 782 A.2d at 500. The Chiappini court then granted the defendant credit for the time spent in the Lackawanna County program after examining the specifics of the Lackawanna County home confinement/ electronic home monitoring program and concluded that the program contained sufficient restraints on a participant’s liberties so as to constitute “custody.” Id., 566 Pa. at 526, 782 A.2d at 501.

The Chiappini court limited its decision to the Lackawanna County program and held that other programs must be examined on an individual case basis. Id., 566 Pa. at 525 n.12, 782 A.2d at 501 n.12. To examine other programs, the Supreme Court stated that a court should examine the extent of control exercised over the participant and the restrictions on the participant’s liberty while on the program. Id., 566 Pa. at 525, 782 A.2d at 501.

B. Eligibility for the Credit Under the County Intermediate Punishment Act

In the instant matter, the Commonwealth argued that appellant should not receive the credit against his sentence because, due to the nature of the offense for which appellant was convicted (aggravated assault), the court did not have discretion to impose a sentence of electronic home monitoring, therefore, it would be inappropriate to credit appellant’s sentence with such time spent while on pretrial release. Although this argument was noted by the dissent in Chiappini, the Chiappini court did not base its decision on this argument because it was never argued and briefed. Id., 566 Pa. at 526 n.13, 782 A.2d at 501 n.13.

Under the Pennsylvania Sentencing Code (42 Pa.C.S. §9701 et seq.) and the County Intermediate Punishment Act (42 Pa.C.S. §9801 et seq.), the court could not have sentenced appellant to electronic home monitoring for the aggravated assault conviction, nor could appellant have harbored any expectation of receiving such a sentence.

42 Pa.C.S. §9763(b)(17) classifies electronic home monitoring as a sentence of intermediate punishment.

42 Pa. C.S. §9804(b)(1) states: “[n]o person other than an eligible offender shall be sentenced to a county intermediate punishment program.”

42 Pa.C.S. §9802 states: “an eligible offender is any person convicted of an offense who would otherwise be sentenced to a county correctional facility, who does not demonstrate a past pattern of violent behavior and who would otherwise be sentenced to partial confinement pursuant to section 9724 or total confinement pursuant to section 9725. The term does not include an offender convicted of aggravated assault.” Id.

Construing these statutes together, it is clear that the legislature did not intend for those convicted of certain serious enumerated offenses (including aggravated assault) to be eligible to serve intermediate punishments such as electronic home monitoring. In Commonwealth v. DiMauro, infra, the Superior Court reached a similar conclusion and held that such a sentence of electronic home monitoring for an aggravated assault conviction was an illegal sentence under the sentencing code. Com monwealth v. DiMauro, 434 Pa. 129, 131, 642 A.2d 507, 508 (1994).

Had the court re-sentenced appellant, the court could not have imposed electronic home monitoring as a part of appellant’s sentence. To credit appellant’s sentence with such time because it was imposed as a condition of pretrial release would be inappropriate and contrary to the intent of the Sentencing Code. As noted by the dissent in Chiappini, requiring the court to reduce the sentence it imposed by crediting time spent on bail in a restricted release program that the General Assembly explicitly directed was unavailable as a sentencing option, ignores the Sentencing Code and depreciates the seriousness of the offense. Chiappini, 566 Pa. at 533-34, 782 A.2d at 506 (Castille, J., dissenting). For this reason, the court correctly refused to credit appellant’s sentence with time spent on electronic home monitoring.

C. The Delaware County Electronic Home Monitoring Program

At the September 20, 2001 hearing, the three-judge panel heard testimony from Philip F. Pisani, the director of pretrial bail services unit for the Delaware County courts. Mr. Pisani described the rules and regulations of the Delaware County electronic home monitoring program, and provided testimony about the details of appellant’s participation in the program.

Although like the Lackawanna County program, the Delaware County program monitored participants by requiring them to wear an ankle bracelet that would send a signal through the telephone if the participant traveled beyond a certain distance from the telephone, the administration of the programs in the two counties was significantly different. The Delaware County program is administered by the court of common pleas and not associated with the prison authorities. (N.T. 9/20/2001 at 60-61.) Participants in the Delaware County program are not considered inmates of the Delaware County Prison. (N.T. at 61.) Unlike the Lackawanna County program, participants, including appellant, expressly acknowledge that they will not receive credit against their sentences for time spent in the program. (N.T. at 48-49.) In addition, participants in the Delaware County program are not subject to warrantless searches of their residences. (N.T. at 61-62.) Instead, under the Delaware County program, if an official suspected a violation of a program condition, he or she would first knock for admittance. (N.T. at 63.) If they were denied entry, the official would then attempt to obtain an order from a judge permitting him or her to enter. (N.T. at 63.)

The Delaware County program routinely permits participants to engage in many of their regular activities outside the home so long as the participant provides documentation and secures approval in advance. Participants are normally permitted to leave their residence to go to work even in cases where they are employed outside the Commonwealth. (N.T. at 43-44, 66.) Requests to leave the home for activities other than employment, medical and legal visits are handled by the pretrial bail services unit of the court on a case-by-case basis. (N.T. at 70.) Approval is based upon the nature of the charges, the nature of the activity, the participant’s prior record and the participant’s past level of cooperation with the court. (N.T. at 70.) Subject to advance approval and verification, participants have been permitted outside their homes to attend to a variety of personal activities, religious activities and family activities. (N.T. at 67-70.) In cases of less serious violations of the program rules, participants are not always returned to jail but may be given a one week “black out” wherein the participant is only permitted to leave the house for pre-authorized medical, religious or employment reasons. (N.T. at 72.)

Reviewing the specifics of appellant’s participation in the program, Mr. Pisani testified that appellant would have been permitted to leave the house to go to work had he been employed. (N.T. at 46.) In addition, he was permitted to leave his home for visits to his doctor and lawyer. (N.T. at 43.) Had he wished to do so, appellant would have been given permission to attend religious services or visit with his relatives. (N.T. at 46-47.) The record showed that on March 26, 2001, appellant requested and was granted permission to go shopping at the King of Prussia Mall from 10:30 a.m. until 1 p.m. (N.T. at 55.) Appellant did not return until 1 a.m. and put on a one-week “black out.” (N.T. at 72.) The record revealed only one occasion in the 250 days appellant was on electronic home monitoring that he was denied permission to leave his residence for any reason. (N.T. at 72.)

Based on the above analysis of the Delaware County program, it is clear that the program does not constitute “custody” within the meaning of 42 Pa.C.S. §9760 and the Chiappini decision. While participants in the program are subject to increased supervision, a participant who complies with the program’s rules and regulations is free to leave his or her residence to pursue most of the non-criminal activities he or she pursued prior to entering the program. Other than increased supervision and being required to document his or her whereabouts, the restraints on liberty from participation in the program are minimal. Individuals on any pretrial release program, whether or not electronic home monitoring has been imposed, can expect to be under some level of court supervision and can expect to be returned to jail if they violate conditions thereof. Just as the term “custody” encompasses the term “imprisonment,” the term “supervision” encompasses the term “custody”; thus, not all forms of “supervision” rise to the level of “custody.” The electronic home monitoring program employed by Delaware County does not become “custody” simply because it imposes significant supervision over the participants.

Unlike the program in Lackawanna County, participants in the Delaware County program can resume many of their normal activities as long as they are verifiable and documented. In appellant’s case, he was permitted to leave his residence to go shopping at a mall simply by making a request. Although appellant’s personal liberties were limited by virtue of being on pretrial release, such limitations cannot be said to have imposed such a restraint on appellant’s liberty so as to constitute “custody.” Under the analysis mandated by Chiappini, the Delaware County electronic home monitoring program does not constitute “custody” and the court correctly declined to credit appellant with time spent on the program against his sentence.

CONCLUSION

For all of the foregoing reasons, the judgment of sentence should be affirmed.

      . 18 Pa.C.S. §2701.

      . 18 Pa.C.S. §2702.

      . 18 Pa.C.S. §2705.

      . 18 Pa.C.S. §907(a).

      . The motion alleged that the court abused its discretion by failing to impose a sentence in the mitigated range of the sentencing guidelines.

      . The panel consisted of the Honorable Frank T. Hazel, the Honorable Charles C. Keeler and the Honorable George Koudelis.

      . Appellant argued the following additional mitigating factors: (1) further confinement would entail excessive hardship to appellant; (2) the conduct of the victim [Officer Gilbert] provoked the commission of the crimes; and (3) the criminal conduct was the result of circumstances unlikely to recur.

      . In Chiappini, the defendant was placed on the program during the pendency of his motion for arrest of judgment and/or new trial following his initial conviction. Id., 566 Pa. at 519, 782 A.2d at 497.

      . Only Justices Zappala, Flaherty and Newman concluded that the Lackawanna County program constituted “custody.” Justices Cappy, Castille and Saylor concluded that the Lackawanna County program was not “custody.” Justice Nigro favored granting the defendant the credit on equitable grounds but did not conclude that the Lackawanna County program constituted “custody.”

      .42 Pa.C.S. §9760(1) states in pertinent part: [c]redit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence and pending resolution of an appeal.

      . The court stated that the term “custody” encompasses the term “imprisonment” and that “imprisonment” is but one form of “custody.” Chiappini, 566 Pa. at 525, 782 A.2d at 500.

      . The Chiappini court based its conclusion on the following specifics of the Lackawanna County program: (1) the program was run by the Lackawanna County prison authorities; (2) a participant in the program was considered an inmate of the Lackawanna County prison and his residence would be considered a jail without bars; (3) the participant was required to wear an ankle bracelet that was connected to a monitoring device; (4) the participant was required to cooperate with home detention staff and permit them to enter the residence any time of the day or night. Chiappini, 566 Pa. at 519, 782 A.2d at 497.

      . The Superior Court rejected defendant’s argument that electronic home monitoring was a sentence of partial confinement under 42 Pa.C.S. §9755(a) rather than an intermediate punishment.

      . In addition to the activities outside the home already described, examples of activities that participants were routinely permitted to attend outside the home include religious services, Bible studies, church activities, food shopping, post office, trips to the auto mechanic, haircuts, family gatherings, attending their children’s sporting events, funerals, weddings, etc. (N.T. at 67-70.)