author: MINORA, J.,

text:
    Kuna v. Lake Sheridan Cottagers Association

      Jeffrey Kornblau and Gary Solomon, for plaintiff.

      Patrick J. Boland, for defendants Strazewski.

      Brett J. Southard, for defendants Davis.

      Charles C. Calkins, for defendant McLaughlin.

      John K. Baker, for defendants Lake Sheridan Cottagers Association.

      James A. Doherty, for defendants Konopka.
    October 24, 2007
   MINORA, J.,

This court was presented with several motions in limine and a motion for summary judgment by the parties to this action. Hearing was held before this court on September 28,2007, during which time this court ruled on a number of issues presented. This court elected to reserve on the following motions:

(1) Plaintiff’s motion in limine to preclude evidence of alcohol consumption and/or bood alcohol level

(2) Plaintiff’s motion in limine to preclude evidence that plaintiff was a trespasser

(3) Defendant, the late Shirley McLaughhn’s, pretrial motion to exclude testimony regarding statements purported to be made or not made by defendant, the late Shirley McLaughlin, pursuant to 42 Pa.C.S. §5930 (surviving party as a witness)

(4) Defendant Shirley McLaughlin’s motion for summary judgment

These matters are now ripe for disposition.

I. PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE EVIDENCE OF ALCOHOL CONSUMPTION AND/OR BLOOD ALCOHOL LEVEL

In plaintiff’s motion in limine to preclude evidence of alcohol consumption and/or blood alcohol level, plaintiff argues against admission of evidence regarding alcohol consumption and/or blood alcohol level based on the anticipation that defendants will attempt to establish that alcohol intake contributed to the accident. Plaintiff, however, contends that there is no evidence of corroborating intoxication in the form of “slurred speech, or stumbling, and accordingly, evidence that plaintiff had any alcohol at the party is properly precluded.” See motion in limine of plaintiff at 2.

Plaintiff argues that his blood alcohol content is not admissible because there is a lack of corroborating evidence of intoxication. Case law precludes the admission of blood-alcohol content in the absence of such corroborating evidence. Defendants argue that plaintiff’s testimony demonstrates that he was drinking alcohol on the night before and day of the accident. In addition, a fellow party invitee who assisted plaintiff while in the lake immediately following the accident testified that she smelled alcohol when assisting the plaintiff.

The standard for determining whether consumption of alcohol is admissible was provided in Whyte v. Robinson, 421 Pa. Super. 33, 39, 617 A.2d 380, 383 (1992):

“Since Critzer v. Donovan, 289 Pa. 381, 137 A.2d665 (1927), the well-settled law of this Commonwealth is that where recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is inadmissible as unfairly prejudicial, unless it reasonably establishes intoxication. Cusatis v. Reichert, 267 Pa. Super. 247, 249-50, 406 A.2d 787, 788-89 (1979) and cases cited therein. The rule of Morreale v. Prince, 436 Pa. 51, 53, 258 A.2d 508 (1969), states that such evidence of intoxication must reasonably establish a degree of intoxication which proves unfitness to drive where recklessness or careless driving is the matter at issue. This court, in Kriner v. McDonald, 223 Pa. Super. 531, 533-35, 302 A.2d 392, 394 (1973) extended the Critzer/Morreale rules of inadmissibility to evidence tending to establish intoxication on the part of a pedestrian. According to Kriner, such evidence of intoxication is inadmissible unless it proves unfitness to be crossing the street. Furthermore, no reference should be made to a pedestrian’s use of alcohol unless there is evidence of excessive or copious drinking. Cook v. Philadelphia Transportation Company, 414 Pa. 154, 158, 199 A.2d 446, 448 (1964).”

In Whyte, the appellant asked the court to examine whether evidence of alcohol consumption was improperly admitted during a trial after the jury returned its verdict. The evidence of intoxication introduced to the jury consisted of testimony from one person at the scene of the accident who caught a whiff of alcohol on appellant’s breath. The court, using the standard set forth supra, found that “the evidence of appellant’s intoxication was both insufficient and incompetent.” Id. at 36, 617 A.2d at 382. The court stated:

“Applying McKee [by McKee v. Evans, 380 Pa. Super. 120, 551 A.2d 260 (1988)] to the facts herein, we are mindful that none of the defense witnesses, who opined Whyte was drunk, observed Whyte prior to the accident. Moreover, the record is devoid of any evidence such as staggering, stumbling, aimless wandering, glassy eyes or incoherent mumbling. See e.g., Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984) (corroborated testimony that a party had been heavily drinking prior to accident, whose breath emitted a strong odor of beer, whose speech was slurred and whose alertness was unusually low after the accident was held to be much more than a suggestion of intoxication and was properly admitted into evidence); Hannon v. City of Philadelphia, 138 Pa. Commw. 166, 587 A.2d 845 (1991) (holding that the combined evidence of an admission to drinking more than a six-pack of beer, the use of abusive and foul language, screaming, loud and uncooperative behavior, smell of alcohol, incoherence and rambling, repeatedly ripping off a cervical collar after being warned of the dire consequences, and slurred speech was admissible). The tension in this case is between the relevance of the evidence and its prejudicial effects. We conclude, therefore, that even if remotely helpful, the lay opinion of Robinson and his companions as to Whyte’s intoxication was manifestly prejudicial and should not have been admitted into evidence. "Id. at 41, 617 A.2d at 384. (emphasis added)

We note the list of symptoms of intoxication provided by the Superior Court is not exclusive to those provided here, as the list begins with the phrase “such as.”

In Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969), the court determined that evidence of a person having been in an after hours club, without evidence that the person had consumed alcohol, was determined to be “unduly prejudicial.”

The Pennsylvania Superior Court provided analysis on the admissibility of evidence of intoxication and blood alcohol content in Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984). The Ackerman case concerned a pedestrian who had been hit by a car. The pedestrian/ appellant challenged the decision of the court of common pleas to admit evidence of the pedestrian’s intoxication. The sole parties at the accident scene were the pedestrian, his girlfriend and the motorist. Notably, the court separately analyzed the issues of evidence of the pedestrian’s intoxication and the admissibility of his blood alcohol content. On the issue of admissibility of the pedestrian’s intoxication, the court stated:

“In the case at bar, there is evidence which could reasonably establish that appellant was intoxicated, so as to make it necessary to place before the jury the issue of whether he was so influenced by alcohol to be a ‘hazard. ’ There was corroborated testimony that appellant had been drinking heavily in the late afternoon and evening before the accident. There is also corroborated testimony that appellant had a strong odor of alcohol and slurred speech after the accident. Looking at all the evidence, there is much more than a suggestion of intoxication and, therefore, we conclude that the evidence of appellant’s intoxication was properly admitted, and was not prejudicial as determined in Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969) and Vignoli v. Standard Motor Freight Inc., 418 Pa. 214, 210 A.2d 271 (1965) (when carelessness or recklessness is at issue, mere fact of consuming alcohol not admissible, being unfairly prejudicial, unless it reasonably establishes intoxication).” Id. at 575, 486 A.2d at 413. (emphasis added)

On the issue of admissibility of blood alcohol content, the court stated:

“The theory behind allowing a blood alcohol level to be admitted into evidence in a civil case is that it is relevant circumstantial evidence relating to intoxication. However, blood alcohol [content] alone may not be admitted for the purpose ofproving intoxication. There must be other evidence showing the actor’s conduct which suggests intoxication. Only then, and if other safeguards are present, may a blood alcohol level be admitted.” Id. at 576, 486 A.2d at 414. (emphasis added)

In Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998), appellant requested the Superior Court to review the trial court’s decision to admit evidence of appellant’s blood alcohol content following the jury verdict against appellant. Appellant was injured after being hit by a vehicle owned by the defendant/appellee. Evidence of appellant’s blood alcohol content at the time of the accident, in excess of 0.25 percent, was admitted into evidence. Appellant asked the court to revisit the decision to admit evidence of his blood alcohol content considered in light of cases in which an injured’s blood alcohol content was not admissible.

The Superior Court’s analysis on the issue provided in Kraus, is as follows:

“Consequently, no reference should be made to a pedestrian’s use of alcohol unless there is evidence of intoxication or copious drinking on the part of the pedestrian; for example evidence that the injured party was staggering or had liquor on his breath gives support to such an inference. Kriner, 223 Pa. Super, at 533-34, 302 A.2d at 394. (emphasis added) (citations omitted) In Whyte, we simply applied the rule established by Kriner. See Whyte, 421 Pa. Super, at 38-40, 617 A.2d at 383. Both cases turned on our conclusion that evidence of the pedestrian’s intoxication was so insubstantial, and the potential prejudice so significant, that it was an abuse of discretion to admit the evidence. See Kriner, 223 Pa. Super. at 533-35, 302 A.2d at 394; Whyte, 421 Pa. Super. at 43-44, 617 A.2d at 385. In contrast, appellees in this case produced substantial evidence of appellant’s intoxication at the time of the accident. First, the responding officer testified that he scented alcohol on appellant’s breath shortly after the accident. (N.T. 10/7/96, at 97.) Second, the hospital measured appellant’s blood alcohol level in excess of 0.25 percent within 40 minutes of the accident. [FN2— Appellant’s blood alcohol level would have been inadmissible absent the additional corroborating evidence. See Whyte, 421 Pa. Super. at 40-44, 617A.2d at384-85.] (N.T. 10/8/96, at 13-32.) Finally, appellees produced expert testimony that, given the blood test results, appellant ’s judgment and motor coordination would have been severely impaired at the time of the accident. (N.T. 10/8/96, at 23-37.) The trial court did not abuse its discretion in admitting this substantial evidence of appellant’s intoxication at the time of the accident.” Id. at 1145-46. (emphasis added)

The Superior Court determined the corroborating evidence in this case was sufficient to be admitted on the issue of the pedestrian’s intoxication and affirmed the lower court’s denial of the pedestrian/appellant’s post-trial motions.

More recently, the Commonwealth Court also examined this issue in Lock v. City of Philadelphia, 895 A.2d 660 (Pa. Commw. 2006). The court stated:

“In the instant case, the record contains substantial independent evidence corroborating the city’s allegation that Lock was intoxicated at the time of the accident. Most compelling was Lock’s own admission that he had consumed four or five beers during the previous evening. Lock’s accident reconstruction expert also acknowledged that his blood alcohol content was 0.134 percent. Officer Lindenmuth testified that when he arrived at the hospital approximately two hours after the accident, he detected a strong odor of alcoholic beverage on Lock’s breath and observed that his eyes were glassy and his speech impaired. In light of these indicia of intoxication, we conclude that the trial court properly admitted evidence of Lock’s alcohol consumption and his blood alcohol content.” Id. at 666.

Sub judice, plaintiff asks this court to preclude evidence of his alcohol consumption or blood alcohol content from being admitted at trial. However, defendants indicate that factors exist to meet the elements of admissibility as set forth in Kraus and Lock, supra. Namely, defendants underscore testimony of Courtney Homenchak, who assisted the plaintiff in the lake immediately after the accident, and her statement that she smelled alcohol on plaintiff’s breath when responding to the accident. See brief of Davis defendants in opposition to plaintiff’s motion in limine at 3; supplemental brief of defendants Joseph and Sophie Strazewski at 6. This alone would not be sufficient. Defendants also argue that plaintiff’s hospital records indicate his heightened blood alcohol level upon admission to the hospital. See brief of Davis defendants in opposition to plaintiff’s motion in limine at 1-3; supplemental brief of defendants Joseph and Sophie Strazewski at 5-6. In addition, at the September 28,2007 hearing on pretrial motions submitted by the parties, this court ruled that defendants’ forensic experts, Isidore Mihalakis M.D. and Gary W. Ross M.D., were permitted to testify on matters within the four comers of their expert reports within their areas of expertise. The expert report of Dr. Mihalakis states, in part:

“His [plaintiff’s] sense of caution, care, mental stability and vision were compromised due to his alcoholic intoxication. If at 7:44 p.m. (when the medical alcohol determination was drawn) his alcohol level was 207 mg/ dL (which translates into a 0.178 percent legal whole-blood alcohol), then three hours earlier (action occurred shortly before 5 p.m. and blood was drawn at 7:44 p.m.) his legal (whole-blood) alcohol level would have been 0.232 percent. At that blood alcohol concentration, there is confusion, emotional instability, and loss of critical judgment, poor muscular coordination and delayed reaction time . . . .” See report of defense expert Isidore Mihalakis M.D. at ¶3.

The expert report of Dr. Ross states, in part:

“A drink, commonly 12 ounces of beer, 4 ounces of nonfortified wine or 1.5 ounces of 80 proof liquor, each contain approximately 10 grams of ethanol. On average a 175 lb. male has an approximate 20 mg/dL increase in his blood alcohol concentration for each drink he consumes. A blood alcohol concentration of 207 mg/dL conservatively reflects an ethanol consumption of at least 10-11 drinks.” See report of defense expert Gary W. Ross M.D. at pagel.

These reports opine that plaintiff’s judgment was affected given the alcohol concentration in his blood. We find all of these factors considered together similar to those deemed sufficient to satisfy the requirements of Kraus, supra. Plaintiff’s motion in limine to preclude evidence of any and all alcohol consumption and/or blood alcohol level is therefore denied.

II. PLAINTIFF’S MOTION IN LIMINE TO PRECLUDE EVIDENCE AND ARGUMENT THAT KEVIN KUNA WAS A TRESPASSER OR NEEDED PERMISSION TO USE THE DOCK AT THE TIME OF THE INCIDENT

In support of plaintiff’s motion in limine seeking to bar evidence that he was a trespasser or needed permission to use the dock, plaintiff argues that he was a guest at the party. Further, he argues while the dock was owned by the Strazewskis and Konopkas, any of the cottage owners or their guests had permission to use the dock. By virtue of the fact he was a guest, plaintiff takes the position that he was permitted to use the dock. Plaintiff supplements this argument by citing deposition testimony of Mr. Strazewski, who testified that he saw guests from the party go out to the dock, but he did not chase them away.

Conversely, defendants argue that the evidence is not sufficiently clear that plaintiff had permission to use the dock, therefore the “absolute preclusion” of all evidence on this issue is improper.

As stated in Trude v. Martin, 442 Pa. Super. 614, 624, 660 A.2d 626, 630 (1995):

“The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee or business invitee. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983); see also, Restatement (Second) of Torts §§328-344 (1965). Generally, the determination of whether an individual is a trespasser, licensee or invitee is one of fact for the jury. Palange v. City of Philadelphia, Law Department, 433 Pa. Super. 373, 640 A.2d 1305 (1994).” (emphasis added)

The issue of whether plaintiff was a trespasser is an issue of fact that is appropriately presented to the jury. Plaintiff’s motion in limine to preclude evidence that he was a trespasser at the time of the accident or needed permission to use the dock in question is denied.

III. DEFENDANT SHIRLEY McLAUGHLIN’S PRETRIAL MOTION TO EXCLUD TESTIMONY REGARDING STATEMENTS PURPORTEDLY MADE OR NOT MADE BY DEFENDANT SHIRLEY McLAUGHLIN PURSUANT TO 42 Pa.C.S. §5930 (SURVIVING PARTY AS A WITNESS)

On behalf of defendant Shirley McLaughlin, now deceased, counsel argues that the Dead Man’s Act applies. 42 Pa.C.S. §5930. The statute provides, in part:

“Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy ....”

In Olson v. North American Industrial Supply Inc., 441 Pa. Super. 598, 658 A.2d 358 (1995), the Superior Court provided the three criteria for determining if a witness is incompetent for testifying under the Dead Man’s Act. The court stated:

• Before a witness is declared incompetent to testify under the Dead Man’s Act, three conditions must exist: (1) the deceased must have had an actual right or interest in the matter at issue; (2) the interest of the witness, not simply the testimony, must be adverse to that of the decedent; and (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest. Commonwealth v. DiCio, 218 Pa. Super. 268, 270, 275 A.2d 868, 870 (1971).” Id. at 610, 658 A.2d at 364.

Defendant would have us ignore other events that occurred within the course of this litigation that affect whether other parties are incompetent to testify. However, in citing Olson, defendant seems to have overlooked an additional explanation provided by the court pertaining to waiver under the Dead Man’s Act:

“The Dead Man’s Act exists for the protection of the dead man’s estate; however, the representative of the estate may elect to waive the disqualification of the adverse party by taking his deposition or requesting a response to written interrogatories pursuant to the discovery rules found in the Pennsylvania Rules of Civil Procedure. See Pa.R.C.P. 4004, 4005 and 4007.1. Flagship First National Bank of Miami Beach v. Bloom, 288 Pa. Super. 347, 353, 431 A.2d 1082, 1085 (1981); Perils v. Kuhns, 202 Pa. Super. 80, 82, 195 A.2d 156, 158 (1963) (if a decedent’s representative requires the adverse party to submit to a deposition or respond to written interrogatories, this amounts to a waiver of the Dead Man’s Act). Furthermore: [W]hen a claimant against the estate of a decedent testifies in his own behalf as to facts occurring since the death of the decedent and is cross-examined as to matters occurring during the decedent’s lifetime, the disability imposed by the act is lifted, and the claimant becomes competent to testify to all relevant and material matters. Estate of Kofsky, 487 Pa. 473, 476, 409 A.2d 1358, 1359 (1979).” Id. at 610-11, 658 A.2d at 365.

More recently, in Schroeder v. Jaquiss, 580 Pa. 381, 388, 861 A.2d 885, 889 (2004), the Pennsylvania Supreme Court noted:

“It [the Dead Man’s Act] provides that when a decedent before he died or a decedents [sic] representative has required an adverse party to be deposed or to answer interrogatories, any objection based upon the Dead Man’s Act to the competency of such a party to testify at the trial is waived, even though discovery is not offered in evidence.” (citations omitted)

In Schroeder, however, the court limited an absolute application of the Dead Man’s Act by providing that waiver of the Dead Man’s Act does not apply to discovery not conducted by the party asserting the privilege: “Therefore, because the estate [the party asserting the Dead Man’s Act] refrained from engaging in such discovery, the Anderson waiver principle was not implicated.” Id. at 389-90, 861 A.2d at 890.

Plaintiff’s brief in response to defendant’s motion in limine argues that defendant McLaughlin waived the protection of the Dead Man’s Act because defendant McLaughlin noticed plaintiff’s deposition and conducted plaintiff’s deposition. See plaintiff’s brief in opposition to defendant McLaughlin’s pretrial motion to exclude statements made or not made by defendant Shirley McLaughlin at 3. Plaintiff’s deposition was taken on February 22,2002. Shirley McLaughlin passed away on March 5, 2002. Counsel for defendant McLaughlin attended the deposition and questioned the plaintiff. This constitutes a waiver of the Dead Man’s Act under Olson v. North American Industrial Supply Inc., supra, at least to the plaintiff. Defendant’s pretrial motion to exclude testimony regarding statements purported to be made or not made by defendant Shirley McLaughlin pursuant to 42 Pa.C.S. §5930 is therefore denied.

IV. DEFENDANT SHIRLEY McLAUGHLIN’S MOTION FOR SUMMARY JUDGMENT

The standard for evaluating motions for summary judgment is provided in Pa.R.C.P. 1035.2:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or export report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

As stated recently by the Pennsylvania Supreme Court in Toy v. Metropolitan Life Insurance Co., 593 Pa. 20, 33-34, 928 A.2d 186, 194-95 (2007):

“The Pennsylvania Rules of Civil Procedure that govern summary judgment instruct in relevant part, that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Pa.R.C.P. 1035.2(1). Under the rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. Note to Pa.R.C.P. 1035.2. (footnote omitted) In considering the merits of a motion for summary judgment, a court views 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. Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 438 (2001). Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205, 206 (1991).” (emphasis added)

Defendant, the late Shirley McLaughlin, argues that negligence is the sole cause of action against her in this action of the plaintiff. Defendant argues that she owed no legal duty to warn the party goers of the dangers of using the dock because she was not the owner of the dock. See brief of defendant Shirley McLaughlin in support for her motion for summary judgment at 3. Correspondingly, defendant argues, plaintiff is unable to establish a cause of action against the late defendant McLaughlin.

Plaintiff argues that the doctrine of the law of the case governs the issue presented in defendant Shirley McLaughlin’s motion for summary judgment, as Judge Corbett denied a previously-filed motion for summary judgment filed by defendant, the late Shirley McLaughlin, by memorandum and order dated April 17, 2003.

In this April 17, 2003 memorandum and order, Judge Corbett stated, “Defendant, Shirley McLaughlin, also filed a motion for summary judgment claiming the plaintiff’s complaint is limited to negligence against her on the basis that she owed, maintained, and/or controlled the dock that caused plaintiff’s injuiy.” See memorandum and order of Judge Corbett of 4/17/03 at 3. The memorandum further stated, “Plaintiff also maintains it was reasonably foreseeable for McLaughlin to know that her guests, including plaintiff, could or would dive from the dock, especially if the guests were not instructed to the contrary.”

Considered in light of this previous motion for summary judgment and considering that the Pennsylvania Rules of Civil Procedure governing summary judgment motions do not allow for the filing of serial summary judgment motions, and our corresponding decision, we find that the doctrine of the law of the case indeed governs the motion for summary judgment sub judice, especially since the previously-filed motion for summary judgment argued that the claims against her were limited to negligence. An appropriate order follows.

ORDER

And now, October 24, 2007, this court finds:

(1) Plaintiff’s motion in limine to preclude evidence of alcohol consumption and/or blood alcohol level is denied;

(2) Plaintiff’s motion in limine to preclude evidence that plaintiff was a trespasser is denied;

(3) Defendant the late Shirley McLaughlin’s pretrial motion to exclude testimony regarding statements purported to be made, or not made, by defendant, the late Shirley McLaughlin, pursuant to 42 Pa.C.S. §5930 (surviving party as a witness) is denied;

(4) Defendant Shirley McLaughlin’s motion for summary judgment is denied.

      . Now deceased. Counsel for the late Shirley McLaughlin indicated in defendant McLaughlin’s pretrial motion, discussed infra, that the caption would be amended in the near future. To date, this court has not been formally advised of such amendment.

      . Appeal in this case was initially granted by the Pennsylvania Supreme Court at 556 Pa. 257, 727 A.2d 1109 (April 20, 1999). Later, at 560 Pa. 220, 743 A.2d 451 (January 20, 2000), the Pennsylvania Supreme Court dismissed the appeal as “having been improvidently granted.”


source: Caselaw Access Project

author: LUNSFORD, J.,

license: Public Domain

text:
    Pashkes v. Magyar

      Stephen J. Pokiniewski, for plaintiff.

      John A. Statler, for defendants Pi Kappa Alpha.

      David J. Solfanelli, for defendants Kleppel and Mason.

      Anthony J. Piazza, for defendant Magyar.

      Kathryn A. Dux, for defendant Johnson.

      Robert Hallinger, for defendant Perry.
    June 27, 2007
   LUNSFORD, J.,

This action arises from personal injuries plaintiff David Paschkes sustained during an assault at a fraternity house owned by defendant Beta Alpha Building Corporation of the Pi Kappa Alpha Fraternity (PIKA) and operated by defendant Beta Alpha Chapter of PIKA (collectively, the PIKA defendants). Plaintiff filed a complaint against the PIKA defendants as well as defendants Matthew Ryan Magyar, William Tyler Johnson, Jarret Mason Kleppel, Matthew N. Perry, and James J. Sisson, seeking tort damages. The PIKA defendants filed preliminary obj ections in the form of demurrers to the negligence claims, a motion to dismiss for lack of capacity to sue, and a motion to dismiss for nonjoinder of necessary parties. For the reasons discussed below, the court sustains the demurrers, reserves decision on the issue of lack of capacity and overrules the objection based on nonjoinder.

BACKGROUND

The following facts are alleged in the complaint. In the early morning hours of October 23, 2004, plaintiff, a PIKA alumnus, was visiting the PIKA house as a guest. At about 2:30 a.m., he was sitting in the lounge of the PIKA house, speaking with a friend. Unbeknownst to him, but known to the PIKA defendants, members of another fraternity, Kappa Delta Rho (KDR), suspected members of PIKA of stealing a KDR ritual book. In fact, KDR members had made plans to enter the PIKA house that morning to retrieve the book by force.

At about 2:35 a.m., 25-35 members of KDR, including the individual defendants, entered the PIKA house, yelling, screaming, and demanding return of the ritual book. Plaintiff and several PIKA members approached the intruders and repeatedly ordered them to leave. Various fights broke out. Defendant Magyar struck plaintiff in the left eye, and plaintiff fell to the ground, where he was kicked repeatedly.

As a result of the assault, plaintiff sustained numerous personal injuries, including bruising, abrasions, a severe flapping of the mala eminence, V2 paresthesia, periorbital ecchymosis, conjunctival chemosis, and subconjunctival hemorrhage. The facture injury has required two surgeries, extensive aftercare, and a resulting loss of time from work and other activities.

On June 6, 2006, plaintiff filed the complaint in the United States District Court for the Middle District of Pennsylvania, seeking to hold defendants responsible for his injuries. Counts V and VI of the complaint assert negligence claims against the PIKA defendants based on a theory of premises liability.

On December 8,2006, the case was transferred to this court. On May 7, 2007, the PIKA defendants filed the instant preliminary objections. Both parties have filed briefs for the court’s consideration.

A. Demurrers

1. Standard of Review

In considering the PIKA defendants’ demurrers to plaintiff’s negligence claims pursuant to Rule 1028(a) (4) of the Pennsylvania Rules of Civil Procedure, the question is whether, accepting as true all well-pleaded allegations that are material and relevant, the law will not permit recovery. Sullivan v. Chartwell Investment Partners LP, 873 A.2d 710, 714 (Pa. Super. 2005). The question must be decided solely on the basis of the pleadings, and a demurrer should be overruled unless it is clear from the face of the complaint that the claims cannot be sustained. Id. In case of any doubt, a demurrer should be overruled. Id.

The PIKA defendants assert the law will not permit recovery on plaintiff’s premises liability claims because they did not have a duty to protect him from unknown hazards. They further assert they cannot be held liable in negligence because plaintiff’s injuries were caused by intervening criminal acts of independent third parties. Plaintiff contends he was entitled to be protected from criminal acts of third parties, or at least to be warned about the danger of a potential altercation with KDR members. The court agrees with the PIKA defendants that plaintiff has not pled a negligence cause of action under either a premises liability theory or by virtue of a general duty to protect him from acts of third parties.

2. Premises Liability

Plaintiff’s claims against the PIKA defendants are based on their duties as landowners. A landowner’s duty to an entrant on the land depends upon the entrant’s status as an invitee, licensee, or trespasser. See T.A. v. Allen, 447 Pa. Super. 302, 309, 669 A.2d 360, 363 (1995). An invitee is one who is enticed or encouraged to enter land for a public or business purpose. Id. at 309-10, 669 A.2d at 363 (citing Restatement (Second) of Torts §332). Landowners owe invitees a duty of reasonable care, which includes a duty to protect them from dangerous conditions and activities. See id. at 310, 669 A.2d at 364 (citing Restatement (Second) of Torts §342).

A licensee is one who is not an invitee but who has permission to enter the land. Id. at 309, 669 A.2d at 363 (citing Restatement (Second) of Torts §330). Landowners only owe licensees a duty to warn them of known dangerous conditions on the premises. See T.A. v. Allen, 447 Pa. Super. 302, 669 A.2d 360 (1995). Criminal acts of third persons are not “dangerous conditions” within the meaning of this rule. See id. As the Pennsylvania Supreme Court explained in a landlord/tenant case, there is a “crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal act of a third person. In the former situation the [landowner] has effectively perpetuated the risk of injury by refusing to correct a known and verifiable defect. On the other hand, the risk of injury from criminal acts of third persons arises not from the conduct of the [landowner] but from the conduct of an unpredictable independent agent.” Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984). Trespassers are owed the lowest duty and are not at issue in this case.

The allegations of the complaint support only the conclusion that plaintiff was a licensee. He alleges he was visiting a friend at the PIKA house at the time of the assault. He further alleges that he was a “guest” and was “appropriately present” in the house on the evening of the altercation. He does not allege that he was invited to the house or that he was present for any public purpose or any purpose relating to business dealings with PIKA. Accordingly, there is no legal or factual basis for a finding that plaintiff was an invitee. Palange v. City of Philadelphia, 433 Pa. Super. 373, 377, 640 A.2d 1305, 1307 (1994) (in a slip and fall case, where there were no allegations or evidence supporting a finding that the plaintiff was an invitee, the court found plaintiff to be a licensee as a matter of law). As a licensee, plaintiff was entitled only to be placed on the same footing as the PIKA defendants with respect to known dangerous conditions.

Plaintiff fails, however, to allege any known dangerous condition. A potential altercation is not a “condition” of the land. See T.A. v. Allen, 447 Pa. Super. 302, 309, 669 A.2d 360, 363 (1995); Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984). Even if it were, he alleges only that members of PIKA were aware of a conflict over a missing ritual book, not that they knew an intrusion and assault were going to occur. Accordingly, no factual basis is pled for holding the PIKA defendants liable for plaintiff’s injuries on a premises liability theory.

3. Duty To Protect Against Criminal Acts by Third Parties

Nor has plaintiff pled a claim for negligence based on a general duty to protect others from criminal acts of third parties. Only in certain special relationships is a duty imposed to control a third party or to protect a victim. See T.A. v. Allen, 447 Pa. Super. 302, 669 A.2d 360 (1995) (citing Restatement (Second) of Torts §315). The relationships giving rise to a duty to control include a parent’s duty to control a child, a master’s duty to control a servant, a landowner’s duty to control a licensee, and a duty of a person in charge of an individual with dangerous propensities to control that individual. See McCandless v. Edwards, 908 A.2d 900, 903 n.1 (Pa. Super. 2006) (citing Restatement (Second) of Torts §§316-319). The relationships giving rise to a duty to protect include a common carrier’s duty to passengers, an innkeeper’s duty to protect guests, the duty of a landowner who holds his land open to the public for business purposes, a duty of an owner of lands of public resort, and a duty of one who takes custody of an individual to protect the individual. T.A. v. Allen, 447 Pa. Super. 302, 308, 669 A.2d 360, 362-63 (1995) (citing Restatement (Second) of Torts §314A). Plaintiff has not alleged any special relationship or other basis for imposing on the PIKA defendants a duty to protect plaintiff from third parties.

Because plaintiff has failed to plead any basis for imposing a duty on the PIKA defendants, as landowners or otherwise, to protect him from the acts of KDR members, Counts V and VI of the complaint are dismissed, without prejudice. Plaintiff may, if he is able, amend the complaint to allege a basis for recognizing a duty to protect.

B. Lack of Capacity To Sue

The PIKA defendants next contend plaintiff’s cause of action must be dismissed pursuant to Rule 1028(a)(5) of the Pennsylvania Rules of Civil Procedure for lack of capacity to sue. Specifically, they contend that plaintiff, as a member of PIKA, an unincorporated association, cannot sue PIKA. They rely on the Superior Court’s holding in Plasterer v. Paine, 375 Pa. Super. 407, 418, 544 A.2d 985, 990 (1988) that members of an unincorporated association may not recover from the association for negligence because the negligence of the association is imputed to all its members. Plaintiff alleges that PIKA is a corporation, not an unincorporated association, and that he is a former, not current, member of PIKA.

This objection raises fact disputes which cannot be determined from the present record. The court will reserve decision on this objection until after a factual record has been made, by the filing of affidavits, depositions, or otherwise. See Pa.R.C.P. 1028(b)(2); see also, Luria v. Luria, 220 Pa. Super. 168, 286 A.2d 922 (1971) (when a fact dispute is raised by preliminary objections, the court is required to take evidence to resolve the dispute).

C. Failure To Join Necessary Party

The PIKA defendants also object, pursuant to Rule 1028(a)(5), to plaintiff’s failure to join as necessary parties other members of KDR who were involved in the altercation. They contend those individuals are necessary to resolve the controversy and render complete relief. Plaintiff responds that he may choose which parties to sue, and defendants may join additional parties if they choose to do so.

Other KDR members who may have acted in concert with the individual defendants are not indispensable or necessary parties to this tort action. A party is indispensable, and must be joined, when his rights are so connected with the claims at issue in an action that any relief granted will infringe upon those rights. See also, Pennsylvania Human Relations Commission v. School District of Philadelphia, 167 Pa. Commw. 1, 651 A.2d 177 (1994). A party is necessary, although not indispensable, if his presence is needed to resolve the dispute and render complete relief. Id. Thus, for example, parties with joint interests in the subject matter of an action must be joined. See Pa.R.C.P. 2227. Parties who are jointly and severally liable, however, need not be joined, as the plaintiff can recover fully from any one of a group of joint tort-feasors. See e.g., Baker v. AC&SInc., 729 A.2d 1140 (Pa. Super. 1999) (citing 42 Pa.C.S. §8322).

Plaintiff asserts that members of KDR acted in concert in committing the alleged torts. If those allegations are true, those members are joint tort-feasors and are jointly and severally liable. See section 8322. Accordingly, plaintiff may choose which co-conspirators to sue, and defendants may join other co-conspirators as additional defendants, if they wish to do so. See Pa.R.C.P. 2252 (parties who may be jointly and severally liable may be joined by the defendant).

Accordingly, the following is entered:

ORDER

And now, June 27, 2007, upon consideration of the preliminary objections filed by defendants Beta Alpha Building Corporation of the Pi Kappa Alpha Fraternity and Beta Alpha Chapter of the Pi Kappa Alpha Fraternity to the complaint filed by plaintiff David Pashkes, the objections in the nature of demurrers are sustained, without prejudice, decision on the objection based on lack of capacity is reserved, and the objection based on nonjoinder is overruled.


author: THOMSON, S.J.,

text:
    Gaudio v. Ford Motor Co.

      Charles Kannebecker, for plaintiffs.

      Kristen Dennison and David Byerly, for defendants.
    June 14, 2007
   THOMSON, S.J.,

OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925

And now, June 14, 2007, upon careful review of the record and of plaintiff’s concise statement of matters complained of on appeal, the trial court continues to stand by its decisions in the above-captioned case and asks that the Superior Court affirm the court’s orders and the jury’s verdict in favor of the defendant. In support thereof, pursuant to Pennsylvania Rule of Appellate Procedure 1925, the court would like to add the following:

I. FACTS

The instant matter on appeal is a products-liability action. The underlying factual scenario involved in this case concerned a fatal one-car accident occurring within the private community association where the plaintiff and the decedent lived. In the early morning hours of June 20, 2001, the plaintiff’s decedent was driving his 1996 Ford F-150 pickup truck on his normal route to work. According to various expert testimony from both sides, the decedent approached an intersection within his community association and slammed on the breaks. The stop sign at this intersection had fallen down several days earlier. The decedent’s Ford F-150 truck veered down into a ditch on the side of the road and then hit an embankment where it came to rest. When police and rescue personnel arrived on the scene, the decedent was found dead in the driver’s seat. The vehicle’s air bag had deployed and the decedent was not wearing a seat belt.

Both the plaintiff’s and the defendant’s experts found that the vehicle was traveling somewhere around 30-34 mph prior to the decedent applying the breaks. The plaintiff’s experts testified that the vehicle was traveling at a barrier equivalent speed of 8.6 mph when it hit the embankment. The defense experts countered that the barrier equivalent speed at the time of impact was actually 14 mph.

The plaintiff asserted that the design of the air bag system was defective in the placement and quantity of the timing sensors. The plaintiff alleged that this defective design caused the driver’s side air bag to deploy at a speed where it should not have deployed at all, or that it deployed late resulting in the decedent’s body being too close to the air bag at the time of deployment. The plaintiff argued that if the air bag had not deployed, or had deployed timely, the decedent would have walked away with only minor injuries. (Trial transcript, June 6, 2006, 36:7-14; 37:8-10.)

The defendants argued that the air bag design was not defective. They argued that the air bag deployed when the vehicle hit the rocky embankment — exactly when it was supposed to. Rather, heavy breaking, the decline into the ditch, and the fact that the decedent was not wearing a seat belt caused his body to be out of position and too close to the steering wheel at the time of the air bag deployment. (Trial transcript, June 6,2006,53:1 — 55:21; 59:5-17.) They further argued that given the factual scenario involved in this accident, if the air bag had not deployed, the decedent would have still suffered significant injuries. (Trial transcript, June 6, 2006, 69:7-20.)

Following a lengthy trial, and one hour of deliberations, the jury returned a verdict in favor of the defendant. The verdict form reflected that the jury found that the crash sensor system of the F ord F-15 0 was not defective in that it did not lack any element necessary to make it safe for its intended use nor did it possess any feature that rendered it unsafe for its intended use.

II. ANALYSIS

Initially, the trial court notes that, on its face, the plaintiff’s concise statement of matters complained of on appeal lacks the specificity required by Pa.R.A.P. 1925. As the defendant correctly asserts in its response to plaintiff’s concise statement of matters complained of on appeal, the purpose of requiring the plaintiff to file a concise statement is to assist the trial judge in filing of record an opinion “of the reasons for the order, or for the rulings.” Commonwealth v. Lord, 553 Pa. 415, 417, 719 A.2d 306, 307 (1998). Where the concise statement lacks the specificity necessary for the trial court to conduct meaningful review, the trial court may find waiver and disregard any argument. Campbell v. Picard Losier & Assocs, case no. 2693, 2007 Phila. C.C.P. Lexis 50, *5 (Phila. C.C.P., Feb. 21, 2007); Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006).

For example, in paragraphs 2(a)(c)(d) and (j), the plaintiff makes general allegations that the court impermissibly allowed testimony regarding the decedent’s pre-accident conduct, including his seat belt non-usage, without giving any reference to the specific testimony complained of or from whom it was elicited. Further, paragraphs 2(b)(d)(e) and (f) allege that the court impermissibly permitted evidence utilized in a risk/benefit analysis without any reference to the specific physical evidence or testimony complained of on appeal.

The vague and overbroad nature of the plaintiff’s concise statement has necessitated a line by line review of the transcript of the nine-day trial and the extensive pleadings in this case in an effort to pinpoint the specific alleged errors. As the defendant notes, where the plaintiff fails to comply with the requirements of Pa.R.A.P. 1925, the trial court may deem the matters waived on appeal. However, because the trial court has had the benefit of oral argument regarding the plaintiff’s post-trial motions and extensive briefs on the issues when they were raised in both post- and pretrial motions, the trial court does not deem these matters waived.

Rather, the trial court recognizes that this trial focused on complex products liability issues related to the applicability of the crashworthiness doctrine and the risk/ utility analysis, as well as the proper interpretation of Pennsylvania’s Seat Belt Statute in the context of a design defect case where crashworthiness is an issue. The proper application of these principles is unclear under the current state of Pennsylvania law, and the trial court welcomes guidance from the appellate courts. As such, the trial court will now address the substantive issues raised on appeal.

The plaintiff raises 18 matters on appeal. The plaintiff has divided these issues generally into alleged errors regarding the trial court’s instructions to the jury and alleged errors regarding the trial court’s rulings regarding the plaintiff’s motions in limine. The trial court will first address the issues raised relating to the evidentiary decisions of the court with regard to the plaintiff’s motions in limine. While the plaintiff has raised 10 issues pertaining to the trial court’s ruling regarding these motions in limine, for the sake of brevity, these issues can be divided into four general categories of evidence. These are (1) evidence of the decedent’s pre-impact behavior including seat belt non-usage, (2) evidence of compliance with industry and government standards, (3) evidence of “generalized statistics” and (4) evidence pertaining to a risk/benefit analysis.

A. Evidentiary Rulings on Plaintiff’s Motions in Limine

1. Evidence Regarding the Decedent’s Pre-Impact Behavior and Seat Belt Non-Use

First, the plaintiff complains that the court erred in allowing evidence of the decedent’s pre-impact behavior. Specifically, the plaintiff complains that references to the decedent breaking suddenly, swerving into a ditch, and not wearing a seat belt were impermissibly introduced to show the decedent’s negligence in causing the accident. The plaintiff correctly asserts that comparative negligence principles do not apply to a products liability action sounding in strict liability. Habecker v. Clark Equip. Co., 36 F.3d 278, 282 (3d Cir. 1994) (Habecker III); Azzarello v. Black Brothers Co., 480 Pa. 547, 558, 391 A.2d 1020, 1027 (1978). Yet, the plaintiff neglects to point out that this court expressly prohibited this evidence from being offered to prove comparative negligence on the part of the plaintiff’s decedent. (Trial court order, June 1, 2006, original record pp. 121-22.) The court further notes that the plaintiff’s assertions of error related to evidence of causation is moot as the jury returned a verdict of “no defect.” (Jury verdict, original record p. 140.)

The plaintiff also fails to recognize that the same evidence can be used for different reasons. “[N]ot every mention of a negligence-related concept poisons a strict liability claim.... Indeed, ‘evidence which is inadmissible for one purpose may be admissible for another.’” Daddona v. Thind, 891 A.2d 786, 810 (Pa. Commw. 2006) (quoting Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 292, 696 Aid 1169, 1172 (1997)).

While the evidence described above could be used, although inappropriately, to put forth an argument regarding negligence on the part of the plaintiff’s decedent, the fact is that it was not used in that fashion. Rather, the evidence was admitted to prove the defendant’s theory regarding the decedent’s position in the vehicle at the time of air bag deployment and at the time of the vehicle’s impact with the embankment.

The plaintiff also objects to defense expert testimony that the decedent may have been pressing his arm against the box of paperwork in the seat next to him to prevent it from spilling onto the floor when he applied the breaks, or reaching for a fallen cigarette. This evidence countered the testimony of the plaintiff’s experts who asserted that the decedent was sitting with his back against the seat and bracing prior to impact. Contrary to the assertions of the plaintiff the defense evidence was not based purely on speculation, but upon forensic evidence found in the vehicle. The defense experts provided reasonable inferences into the decedent’s conduct based upon the pattern of blood splatter in the vehicle and the condition and placement of the paperwork.

“Atrial court is vested with wide discretion in deciding whether to allow the admission of expert testimony into evidence and is not subject to reversal absent a clear abuse of discretion.” Id. at 805. The trial court does not believe it abused its discretion in admitting the aforementioned expert testimony. To prohibit testimony which explains the defense’s theory regarding the decedent’s position in the vehicle relative to the timing of the airbag deployment would, in effect, deprive the defendant from presenting any meaningful defense to the plaintiff’s theory. As such, the trial court found evidence, of the pre-impact circumstances, was both relevant and admissible.

Further, specifically as it relates to the decedent’s seat belt non-usage, the plaintiff complains that such evidence is barred by the Pennsylvania Seat Belt Statute, 75 Pa.C.S. §4581. The Pennsylvania Seat Belt Statute states, in relevant part, the following:

“In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in a civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this sub-chapter; nor shall failure to use a child passenger restraint system, child booster seat or safety seat belt system be considered as contributory negligence nor shall failure to use such a system be admissible as evidence in the trial of any civil action . . . .” 75 Pa.C.S. §4581(e) (2007).

The plaintiff argues that the seat belt statute broadly, and without exception, prohibits any evidence of the non-use of a seat belt in any civil action. Curiously, the counsel for the plaintiff, Mr. Coben, presented the opposite argument before the Superior Court in Kreiensieck v. Lowery, 806 A.2d 472 (Pa. Super. 2002). There, the plaintiff argued that the purpose of Pennsylvania’s Seat Belt Statute was to protect injured parties from claims of contributory negligence and comparative fault. Thus, the statute does not mandate an absolute bar on such evidence, but instead has a limited application.

The Superior Court in Kreiensieck agreed, holding that where a violation of the seat belt law is not used to prove contributory negligence, but rather for the purpose of proving causation in a products liability claim, Pennsylvania’s Seat Belt Statute does not preclude the admission into evidence of seat belt non-use. Kreiensieck, mem. op. at 11 -12. Further, the plaintiff fails to cite to any relevant products liability cases which have barred evidence of seat belt non-use.

Also, interesting to note is that the plaintiff misquotes the Pennsylvania Seat Belt Statute at issue in its supplemental brief in support of their motion for post-trial at page 10. (Original record p. 143.) The plaintiff adds a comma between the words contributory negligence and the phrase “nor shall failure to use such a system be admissible as evidence in the trial of any civil action...This addition is more than a mere typographical error. Rather, the addition of the comma removes the relevant text from the clause relating to comparative negligence and separates it into its own statutory mandate.

The plaintiff’s interpretation and re-drafting to the Pennsylvania Seat Belt Statute is unreasonable. Based upon the above, the trial court determined that, given the factual circumstances present in the case at the bar, the Superior Court’s interpretation in Kreiensieck to be the correct one. To allow evidence of seat belt use or non-use in cases where it is necessary to prove a products liability claim and then to disallow such evidence where it is necessary to disprove a products liability claim would be unjust.

Wherefore, the trial court admitted evidence that the decedent was not wearing his seat belt for the limited purpose of showing the pre-accident circumstances which gave rise to the decedent’s physical position in the vehicle at the time of impact and deployment.

2. Evidence of Government and Industry Standards

Second, in paragraphs 2(e)-(f) of the plaintiff’s concise statement of matters complained of on appeal, the plaintiff states that the trial court erred in denying the plaintiff’s motions in limine to exclude evidence of compliance with government and industry standards. This is a misstatement of the record in this case.

The trial court actually granted the plaintiff’s motion to exclude evidence of government and industry standards. Yet, the court expressly cautioned the plaintiff that pursuant to Pennsylvania law, if the plaintiff opened the door by admitting evidence regarding government and industry standards, the defendants would likewise be permitted to introduce this type of evidence for purposes of rebuttal or within their case in chief. (Trial court order, June 1, 2006, original record, p. 121, note 1-2.)

That is precisely what happened. The plaintiff “opened the door” to admission of such evidence in the plaintiff’s opening statement and throughout the course of the trial. The plaintiff referenced the Veridian report in its opening statement, telling the jurors that anytime there is an accident involving air bags, the government conducts an investigation. The plaintiff further relied upon this report, prepared by a firm hired by the government, to prove its case regarding the speed of the vehicle upon impact with the embankment.

Later, the plaintiff’s expert Geoff Mahan testified regarding the “5 inch/30 millisecond” guideline, which upon cross-examination he characterized as an “industry standard” governing the performance of air bag systems. Mr. Mahan also testified regarding his involvement in committees that created industry standards for airbag systems. The plaintiff’s expert Mr. Enz testified about his work investigating accidents pursuant to government contract to determine whether the vehicle being investigated complied with Federal Motor Vehicle Safety Standards.

The plaintiff correctly notes that in strict liability cases, evidence of compliance with industry or government standards is not admissible by a manufacturer as such evidence “improperly injects negligence concepts into the trial.” Castner v. Milwaukee Elec. Tool Corp., 2004 U.S. Dist. Lexis 22488, 1-8 (D. Pa. 2004) (citing Lewis v. Coffing Hoist Division, Duff-Norton Co. Inc., 515 Pa. 334, 342, 528 A.2d 590, 594 (1987)). However, evidence of non-compliance with industry or government standards is admissible by the plaintiff to prove that the product was defective. Forry v. Gulf Oil Corp., 428 Pa. 334, 343, 237 A.2d 593, 598 (1968). If the plaintiff chooses to introduce evidence of industiy or government standards through direct testimony or cross-examination of a defense witness, they waive their right to object to the entry of such evidence by the defendant either during cross-examination or during the defendant’s case in chief. Markovich v. Bell Helicopter Textron Inc., 805 F. Supp. 1231, 1240 (E.D. Pa. 1992).

Thus, “the plaintiff can open the door to evidence regarding industry standards by the manner he conducts the trial.” Castner, 2004 U.S. Lexis at *3, note 1. Given the strategy employed by the plaintiff, the trial court continues to stand by its decision to allow the defendant to present evidence of government and industiy standards.

3. Evidence of “Generalized Statistics”

Third, the plaintiff argues that the trial court erred in allowing into evidence “generalized statistics.” First, the trial court objects to the plaintiff’s characterization of the information admitted into evidence as “generalized statistics.” As elaborated upon in the plaintiff’s supplemental brief in support of their motion for post-trial relief, the plaintiff is actually referring to statistical evidence proffered by the defendant’s expert for the defense, Russell Brantman, who stated the following, in relevant part:

“As with any air bag system on any vehicle there is always some risk if the person ends up in an extreme out of position situation. Fortunately that is an extremely rare event. Really rare event. Indeed if you look at the NHTSA SCI data base for the 1994 to 1996 F-150, that is 1994, 1995, 1996 F-150 besides Mr. Gaudio’s fatality there is only one other fatality in the SCI data base due to an air bag deployment.” (Trial transcript, July 14,2006, 74:15 — 75:24.)

Evidence of a lack of similar accidents is admissible in a products liability action to prove that the alleged defect did not cause the accident. Spino v. John S. Tilley Ladder Co., 548 Pa. 292, 696 A.2d 1169 (1997). In order to admit such evidence, the defendant must first show a substantial similarity between the accident at issue and the statistics sought to be admitted. Id. at 295-96, 696 A.2d at 1173-74. Second, the defendant must establish an independent indicia of reliability to the statistics sought to be admitted. That is, in order for the probative value to outweigh the prejudicial effect, the defense testimony must be more than “testimony that no lawsuits have ever been filed, no claims have been made or that the defendant has never heard of any accidents.” Id. at 295-96 n.8, 696 A.2d at 1173 n.8.

The trial court found that the statistics sought to be admitted were sufficiently similar to the issues raised in the trial. The statistics referenced the vehicles of the same make, model and year along with those in years alleged to have the same design. They also referred to the same consequence alleged to have been caused by the same alleged defective part — the air bag system.

Further, the court found that the statistics referenced were independently reliable. The defense expert did not pick and choose favorable cases to reference, nor did he merely plead ignorance of other accidents. Fie referred to a data base maintained by an independent governmental body. That governmental body is the same governmental body that prepared the “ Veridian report” utilized by the plaintiff.

The plaintiff further complains that the court admitted into evidence testimonials taken from publications such as the Flighway Loss Data Institute that “air bags save lives” and “seat belts save lives.” The plaintiff alleged in this case that the air bag never should have deployed in a crash occurring at such a low speed. The plaintiff asserted that had the air bag not deployed, the decedent would have walked away with only minor injuries. Thus, the usefulness of an air bag in a crash of this nature was placed directly at issue. The defendant had every right to address these arguments. Wherefore, the statements by the experts for the defense that “air bags save lives” were certainly relevant and were properly admitted by the trial court.

4. Evidence Relative to a Risk/Benefit Analysis

The plaintiff alleges that the trial court erred in allowing the defendant to present evidence relative to a risk/benefit analysis. As the court has already specifically addressed evidence of government and industry standards and it is unclear precisely which other evidence the plaintif complains of, the trial court will address the relevance of the risk/benefits analysis in general.

The plaintiff argues that Pennsylvania no longer applies the risk/benefit analysis in strict liability actions as such an analysis sounds in principles of negligence. While the trial court agrees that the risk/benefits analysis is not a test to be applied by a jury in a design defect/ crashworthiness case, the court believes that the risk/ benefits analysis is still useful in the judicial determination of the product’s “intended use” and the threshold determination by the court as whether, viewing the evidence in the light most favorable to the plaintiff, recovery is appropriate.

As this case proceeded under a strict liability theory, the trial court started with the basic premise that “a manufacturer is a guarantor of its product.” Azzarello v. Black Brothers Co., 480 Pa. 547, 553, 391 A.2d 1020, 1023-24 (1978). Thus, on trial in aproducts liability case is the safety of the product itself and not the conduct of the manufacturer. Phillips v. Cricket Lighters, 576 Pa. 644, 655-56, 841 A.2d 1000, 1006-07 (2003). The plaintiff must prove that the product at issue was sold in a defective condition, and that the defect was the proximate cause of the injuries. Daddona v. Thind, 891 A.2d 786, 796 (Pa. Commw. 2006).

In order to be successful in a products liability action based upon allegations that the product was designed defectively the plaintiff must prove that the product was not safe for its intended use. Putt v. Yates-American Machine Co., 722 A.2d 217, 221 (Pa. Super. 1998); Azzarello, 480 Pa. at 559, 391 A.2d at 1027. “The jury may find defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Azzarello, 480 Pa. at 559, 391 A.2d at 1027. (footnote omitted)

Yet, before the case can be submitted to a jury, it must survive a threshold analysis by the trial court. That is, in a design defect case, the trial court serves as a gatekeeper and must decide whether the plaintiff can meet her burden as a matter of law. Schindler v. Sofamor, 774 A.2d 765 (Pa. Super. 2001). The court must first make a legal determination as to the products “intended use.” Inherent in the crashworthiness doctrine is the legal conclusion that it is foreseeable that a vehicle will be used in an accident, or, put another way, an intended use of a vehicle is that it will be involved in an accident. Thus, the crashworthiness doctrine imposes liability upon a manufacturer to the passenger of a car whose injuries are increased due to a design defect in the vehicle. Habecker III, 36 F.3d at 283. If enhanced injuries cannot be shown the manufacturer cannot be held liable. Daddona, 891 A.2d at 797.

Once the court has determined the intended use of the product, it also must determine whether, under the plaintiff’s version of the facts, the product should have been designed more safely for its intended use. Schindler v. Sofamor, 774 A.2d 765 (Pa. Super. 2001). In so deciding, the court exercises its duties as both a risk/ultility economic analyst and a social philosopher. Id. In making the determination of whether a product should have been designed more safely, or to put it another way, is unreasonably dangerous . . . “it must be understood that the words ‘unreasonably dangerous’ have no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed upon the supplier.... While a lay finder of fact is obviously competent in resolving a dispute as to the condition of a product, an entirely different question is presented where a decision as to whether that condition justifies placing liability upon the supplier must be made.” Azzarello, 480 Pa. at 556, 391 A.2d at 1024. (footnotes omitted)

In determining whether the facts as alleged by the plaintiff support the imposition of liability upon the supplier, courts employ an “independent assessment of advantages and disadvantages, to which some attach the label ‘risk-utility balancing’ . . . .” Philips v. Cricket Lighters, 576 Pa. 644, 676-77, 841 A.2d 1000, 1019 (2003).

Applying these principles to the present case, the trial court allowed the defendant to present evidence involving a risk/utility analysis. Such evidence was then used by the trial court to rule on the defendant’s oral motion for compulsory nonsuit. The trial court determined that recovery was appropriate under plaintiff’s theory of the case.

It was foreseeable that a passenger would not be wearing a seat belt during an accident. Thus, the intended use of an air bag is to reduce the risk of injury in accidents both where the passenger is belted or unbelted. Assuming the facts alleged by the plaintiff were true, an air bag system that was designed to deploy in an eight-mile-an-hour crash would be unreasonably dangerous as the risk of injury to an unbelted driver is minimal. Likewise, due to the force necessary for the air bag to deploy, the risk of injury was great if the air bag was designed to deploy late. Pursuant to Pa.R.C.P. 230.1(2), the trial court determined that the plaintiff’s claims survived the threshold analysis and that the plaintiff’s had established a prima facie case for a cause of action under the crashworthiness doctrine.

The case was then submitted to the jury to resolve the factual disputes {i.e., at what speed did the impact occur and did the air bag deploy late) and to apply the facts to the crashworthiness doctrine. Contrary to the plaintiff’s representation, the jury did not employ a risk/utility analysis. Rather, the jury verdict form asked the jury to decide four questions pursuant to the crashworthiness doctrine and to award a monetary amount if the answer to all questions was yes. The verdict form asked the following questions with regard to the crashworthiness doctrine:

“(1) Was the crash sensor system of the Ford F-150 defective in that it lacked any element necessary to make it safe for its intended use or possessing any feature that rendered it unsafe for its intended use?
“(2) When the crash sensor system of the Ford F-150 was designed, did an alternative, safer design exist that was practicable under the circumstances?
“(3) Did the design of the crash sensor system of the Ford F-150 cause or exacerbate Andrew Gaudio’s injuries?
“(4) Would an alternative design of the crash sensor system of the Ford F-150 have prevented Andrew Gaudio’s injuries?” (Verdict form, original record, p. 140.)

The language of the verdict form is reflective of that used in Daddona, 891 A.2d at 797.

Based upon the trial court’s above interpretation of the relevant Pennsylvania case law, the trial court asks the appellate court to uphold its rulings regarding the introduction of evidence pertaining to a risk/benefit analysis.

B. Jury Instructions

Second, the plaintiff alleges the court erred with regard to the instructions it provided to the jury. The plaintiff’s concise statement of matters complained of on appeal raises eight issues with regard to the trial court’s charge of the jury. Generally, the court notes that it charged the jury on all relevant issues in accordance with Pennsylvania case law and the Pennsylvania Bar Institute Suggested Standard Jury Instructions.

First, the plaintiff misstates the record with regard to paragraphs l(d)(g) and (h) in the concise statement. With regard to paragraph 1(c) and (d), the plaintiff contends that the trial court erred in failing to charge the jury on the principles of crashworthiness. A careful review of the record in this case reveals that the trial court did, in fact, charge the jury as to the crashworthiness doctrine. In the court’s charge to the jury, the trial court stated the following, in relevant part:

“In this case the plaintiff has the burden of proving that the design of the product was defective, that an alternative safer design practical under the circumstances existed. That Andrew Gaudio’s injuries were caused or exacerbated by the defective design of the product and that Andrew Gaudio would not have suffered these injuries if the alternative design was used. If after considering all the evidence you feel persuaded that the propositions are more probably true than not, your verdict must be for the plaintiff. Otherwise your verdict should be for the defendant... the plaintiff is required to prove only that the defect was a factual cause of damages beyond those that were probably caused by the original impact. The plaintiff is not required to prove that the defect caused the accident or initial impact. Also the plaintiff is not required to prove that the defect caused specific injuries that were not the result of the original impact or collision.” (Trial transcript, June 15,2006,14:20 — 15:7; 16:10-18.)

The trial court also charged the jury with regard to the issues raised in paragraphs 1(g) and (h) of the concise statement, that is, that the jury may find the product defective even if Ford acted with reasonable care and that the plaintiff’s fault or conduct was inapplicable. Specifically, the trial court stated the following:

“The supplier of a product is liable for the injuries caused to a plaintiff by a defect in the article which existed when the product left the possession of the supplier. Such liability is imposed even if the supplier has taken all possible care in the preparation and sale of the product. The manufacturer of a product is a guarantor of its safety. The product must be provided with every element necessary to make it safe for its intended use, without any condition that makes it unsafe for its intended use. If you find that the product at the time it left the defendant’s control lacked any element necessary to make it safe for its intended use or contained any condition that made it unsafe for its intended use and there was an alternative safer practical design then the product was defective. The defendant is liable for all harm caused by the defect... the defendant in a strict liability case, who puts a defective product into the market remains liable to the user or consumer despite the foreseeable conduct negligent or otherwise of others for the harm caused by the product as a result of its defect.” (Trial transcript, June 15, 2006, 15:8 — 16:2.)

The plaintiff also complains about the use of the words “intended use” in the charge regarding defect. This court does not believe that including this language was an error. As referenced above, the language “intended use” is the precise language of the crashworthiness doctrine.

For the foregoing reasons, the trial court respectfully requests that the above-captioned case be affirmed on appeal.

      . The plaintiff’s claim against co-defendant Masthope Rapids Property Owners Council settled prior to trial.

      . This court shares the views as expressed in a recent order from the Delaware County Court of Common Pleas which stated, “while the court feels that a risk-benefit analysis is relevant, it is perplexed as to how the evidence should be presented and who should make the decision with respect to this issue. In crashworthiness cases the procedure seems unclear as how to appropriately decide this issue whether to the jury during trial or by the judge alone.” Bus a v. Ford Motor Company, Delaware County Court of Common Pleas, no. 04-3469 (2006).

      . The trial court recognizes that this is an unpublished opinion, nevertheless the trial court found the reasoning used by the Superior Court in this case persuasive.

      . While not binding precedent, the trial court notes that Common Pleas Courts in Allegheny and Philadelphia counties have similarly held that evidence of seatbelt non-use is admissible for purposes other than proving contributory negligence. See generally, Clingan v. Kooser, no. GD97-16926, order of ct. (C.C.P. Allegheny Cty., Nov. 13, 2000) (attached to defendants’ response to plaintiff’s motion in limine no. 3 as exhibit B); McKinney v. American Honda Motor Co., no. 582, December term 1988 (C.C.P. Phila. Cty.) (attached to defendants’ motion response to plaintiff’s motion in limine no. 3 as exhibit C).


author: NEALON, J.,

text:
    Lavelle Murray v. Haggerty

      Christopher P. Cullen, for plaintif.

      Harry P. Mattern, for defendant.
    October 19, 2006
   NEALON, J.,

An unsuccessful candidate for the Pennsylvania State Senate, who has been sued by his former media consultant for invoices allegedly due, has filedpreliminaiy objections demurring to his personal liability for campaign debts, challenging the sufficiency of the breach of contract averments in the complaint, and objecting to the failure to join his campaign committee as a necessary party. Since the complaint and the attached exhibits indicate that the candidate actually authorized and tacitly approved the media contract in dispute, the demurrer to the candidate’s personal liability will be overruled. Similarly, inasmuch as the complaint adequately avers a cause of action for breach of an oral contract, the objections to the contract claim will likewise be overruled. However, since the inclusion of the candidate’s campaign committee is necessary to resolve this controversy definitively and to avoid piecemeal litigation, the plaintiff will be ordered to join “Haggerty for Senate” as a necessary party in this action.

I. FACTUAL BACKGROUND

According to the well-pleaded allegations of the complaint and the exhibits attached thereto, see Glassmere Fuel Services Inc. v. Clear, 900 A.2d 398, 402 (Pa. Super. 2006) (when considering preliminary objections, trial courts must accept as true all well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts), the Scranton-based advertising and public relations firm, Lavelle Murray, was retained in 2005 by defendant James J. Haggerty Jr., Esquire to “provide professional consulting and media plan services to Haggerty’s campaign for re-election as Mayor of Kingston.” (Docket entry no. 1, ¶4.) At the time that Lavelle Murray was hired for Haggerty’s mayoral re-election campaign, “Haggerty informed Lavelle Murray that he wanted to use his general election mayoral effort as a springboard for a 2006 primary election campaign for the Republication nomination for the Pennsylvania State Senate from the 20th District, and that he wanted Lavelle Murray to creatively design its services to promote Haggerty’s anticipated 2006 primary election campaign for the Republication nomination for the Pennsylvania State Senate from the 20th District.” (Id., ¶6.) Lavelle Murray reportedly accepted “Haggerty’s offer” to provide professional services for both campaigns and did, in fact, furnish such services in late 2005 and early 2006. (Id., ¶¶7-8.)

Attached to Lavelle Murray’s complaint in this case are a series of e-mail communications from Lavelle Murray to Haggerty via his law office e-mail address, jjhpc@ epix.net. Most of those e-mails were forwarded to or authored by an administrative assistant in Haggerty’s law firm, although several of those communications were addressed directly to Haggerty himself. Beginning in early November 2005, the substance of those e-mails concerned Haggerty’s State Senate campaign and addressed such matters as his senate campaign logo, stationery, signage and official announcement. {Id., attachment no. 1.)

On February 16, 2006, Lavelle Murray forwarded a letter directly to Haggerty regarding an unpaid bill for “outdoor (billboard) contracts.” Lavelle Murray’s correspondence referenced a meeting that was conducted with Haggerty and his campaign committee representatives on December 29,2005, at which time Lavelle Murray “reviewed the outdoor plan in detail. . . .” (Id., attachment no. 3.) In this same letter, Lavelle Murray reminded Haggerty that “[w]hen you left the meeting, you stated whatever the committee decides to do is OK with you.” (Id.)

Approximately six weeks later, Lavelle Murray forwarded an e-mail directly to Haggerty on March 29,2006 stating:

“Jim ... I am continually being approached by the media (newspapers and electronic media) on the status of your campaign. I would appreciate prompt payment from you for all of our hard work so that each of our teams can move forward on a positive note.” (Id., attachment no. 1, p. 19.)

Additionally, on April 13, 2006, Lavelle Murray’s counsel mailed a letter directly to Haggerty demanding payment of Lavelle Murray’s unpaid invoice. Lavelle Murray’s counsel advised Haggerty that litigation would be commenced against him on May 8, 2006, if Lavelle Murray’s outstanding bill was not paid by that date. (Id., attachment no. 4.)

On May 8, 2006, Lavelle Murray instituted this suit by the filing of a complaint alleging causes of action for breach of contract (Count I) and unjust enrichment (Count II) and seeking to recover $17,893.88 for unpaid services provided. On June 7, 2006, Haggerty filed preliminary objections seeking to dismiss this action on the grounds that: (1) a cognizable claim has not been stated against Haggerty individually for debts incurred by his campaign committee, “Haggerty for Senate”; (2) Lavelle Murray has not pled a claim for breach of contract with sufficient specificity; and (3) the complaint has not joined a necessary party, Haggerty for Senate, as a named defendant in this action. Following the completion of oral argument on October 11,2006, Haggerty’s preliminary objections were submitted for a decision.

II. DISCUSSION

(A) Standard of Review

“Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” Pennsy Supply Inc. v. American Ash Recycling Corp., 895 A.2d 595, 599 (Pa. Super. 2006). Preliminary objections which result in the dismissal of an action may be sustained only in those cases which are clear and free from doubt, and “[t]o be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred.” Styers v. Bedford Grange Mutual Insurance Co., 900 A.2d 895, 898 (Pa. Super. 2006); Pennsy Supply Inc., supra. In making that determination, the court may consider only the factual allegations of the complaint and any exhibits attached thereto, Limbach Company LLC v. City of Philadelphia, 905 A.2d 567, 572 (Pa. Commw. 2006), and the material facts set forth in the complaint and all inferences fairly deducible from those facts are deemed admitted and accepted as true. Insurance Adjustment Bureau Inc. v. Allstate Insurance Company, 588 Pa. 470, 480, 905 A.2d 462, 468 (2006). If any doubt exists as to whether recovery is possible based upon the facts alleged, that doubt should be resolved in favor of overruling the preliminary objections. Philadelphia Construction Services LLC v. Domb, 903 A.2d 1262, 1266 (Pa. Super. 2006).

(B) Personal Liability of Candidates

Haggerty contends that since several of the invoices attached to Lavelle Murray’s complaint are addressed to “Haggerty for Senate” via Haggerty’s law office address at 840 Market Street, Kingston, the complaint should be dismissed in its entirety for failure to allege a claim against Haggerty personally. Pennsylvania law governing the personal liability of candidates for their campaign committees’ debts evolved from earlier precedent relating to voluntary or unincorporated associations. See Karl Rove & Co. v. Thornburgh, 39 F.3d 1273, 1284 n.34 (5th Cir. 1994) (applying Pennsylvania law). It is well established that “[t]he mere fact that one is a candidate, an officer, or a member of a political organization does not, of itself, establish his liability, personally or otherwise, for debts incurred by that organization.” Bloom v. Vauclain, 329 Pa. 460, 462-63, 198 A.78, 79 (1938); Karl Rove & Co., 39 F.3d at 1288. Rather, a candidate may be found personally liable for a political committee’s debts only if [s]he actually authorized, assented to, or ratified the obligation. Bloom, supra; Duquesne Litho Inc. v. Roberts & Jaworski Inc., 443 Pa. Super. 170, 174, 661 A.2d9, 11 (1995); Karl Rove & Co., 39 F.3d at 1291. In this context, assent connotes approval and may be either express or tacit. Karl Rove & Co., 39 F.3d at 1291-92 (since unsuccessful senatorial candidate knew that his committee had hired some entity to provide direct mail services, and candidate had reviewed and approved drafts of fundraising letters to be mailed, evidence sustained finding that candidate had implicitly assented to contract for direct mail fundraising services so as to be personally liable for payment of those services).

Lavelle Murray’s complaint is replete with averments that Haggerty personally asked Lavelle Murray to perform professional consulting and media plan services for his senatorial campaign, that “Lavelle Murray agreed to accept Haggerty’s offer to provide its services ... to Haggerty’s projected 2006 primary election campaign” for the state senate, and that “Lavelle Murray provided its services to Haggerty for . . . his projected 2006 primary election campaign for the republican nomination” for the state senate. (Docket entry no. 1, ¶¶6-8.) The complaint also references “the oral agreement and understandings between Lavelle Murray and Haggerty” regarding professional services for his senatorial campaign. (Id., ¶¶15-16.) Accepting those allegations as true for purposes of Haggerty’s demurrer, Haggerty “actually authorized” his campaign committee’s professional services agreement with Lavelle Murray and may be personally responsible for the nonpayment of that obligation under Bloom, Duquesne Litho Inc., and Karl Rove & Co.

Furthermore, the e-mails attached to the complaint indicate that Haggerty advised Lavelle Murray that “whatever the committee decides to do is OK with [Haggerty].” (Docket entry no. 1, attachment no. 3.) As noted above, the requisite approval may be established by circumstantial evidence and a candidate’s conduct may demonstrate tacit assent to an obligation incurred by a campaign committee. See Karl Rove & Co., 39 F.3d at 1291-92. The e-mails submitted reflect that Haggerty was fully aware of Lavelle Murray’s media plan, attended a meeting with his campaign committee representatives and Lavelle Murray to review that plan, and provided his carte blanche approval of his committee’s decision with respect to Lavelle Murray’s proffered services. Consequently, Lavelle Murray’s averments and exhibits are sufficient to state a claim against Haggerty personally based upon his actual authorization or tacit assent.

Decisional precedent addressing a candidate’s personal liability for a political committee’s debts cautions that wary candidates have safeguards available to them to provide protection from personal liability. For example, “[a] candidate could easily incorporate his campaign committee and thus shield himself from personal liability.” Duquesne Litho Inc., 443 Pa. Super, at 174, 661 A.2d at 11-12 (citing Karl Rove & Co., supra). In addition, candidates may specify in their campaign committee contracts with third parties that the purveyors of goods or services may only seek payment from committee assets and may not attempt to recover from candidates individually for any breach of those agreements. Duquesne Litho Inc., supra at 174, 661 A.2d at 12; Karl Rove & Co., 39 F.3d at 1295. Since Lavelle Murray’s complaint does not allege that Haggerty availed himself of those possible protections from personal liability, Haggerty’s demurrer will be denied. See Karl Rove & Co., supra at 1294-95 n.90-102 (collecting published cases in which candidates were held liable for campaign committee debts).

(C) Contract Claim

Haggerty also contends that “[b]ecause the complaint fails to plead with proper specificity the essential elements of a breach of contract claim, the complaint is fatally defective and should be dismissed and/or a more definite pleading ordered.” (Docket entry no. 7, p. 7.) The purpose of pleadings is to place the defendants on notice of the claims upon which they will have to defend. Carlson v. Community Ambulance Services Inc., 824 A.2d 1228, 1232 (Pa. Super. 2003); Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579, 588 (Pa. Super. 2003), appeal denied, 573 Pa. 692, 825 A.2d 639 (2003); Mulderig v. Allstate Insurance Co., 105 Lacka. Jur. 1, 8 (2003). “Under Pennsylvania’s fact pleading system, the complainant need only state the material facts upon which a cause of action is based.” Grossman v. Barke, 868 A.2d 561, 569 (Pa. Super. 2005) (citing Pa. R.C.P. 1019(a)), appeal denied, 585 Pa. 697, 889 A.2d 89 (2005). In determining whether the allegations of the complaint have been stated with adequate specificity, one portion of the complaint should not be examined in isolation and should instead “be read in context with all other allegations in that complaint.” Rachlin v. Edmison, 813 A.2d 862, 870 (Pa. Super. 2002); Yacoub, 805 A.2d at 589; Mulderig, supra. “Only then can the court determine whether the defendant has been put upon adequate notice of the claim against which he must defend.” Grossman, supra, 868 A.2d at 569 (quoting Yacoub, supra).

To state a cause of action for breach of contract, the complaint must allege: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) damages resulting from that breach. Boyd v. Rockwood Area School District, 907 A.2d 1157 (Pa. Commw. 2006); Pennsy Supply Inc., 895 A.2d at 600; Busy Bee Inc. v. Wachovia Bank N.A., 2006 WL 723487, *26 (Lacka. Co. 2006). Lavelle Murray’s complaint expressly avers that Haggerty and Lavelle Murray entered into an oral agreement by virtue of which Lavelle Murray was to provide professional consulting and media plan services to Haggerty. The exhibits attached to the complaint identify Lavelle Murray’s charges for those services, Lavelle Murray’s repeated demands for payment of its outstanding invoices in the amount of $17,893.88 for logo design, stationery production, photography, billboards and other marketing and media services, and Haggerty’s failure to pay those invoices.

Examining the complaint as a whole, it sufficiently avers the essential terms of the parties’ oral contract, Haggerty’s breach of his duty to pay for Lavelle Murray’s services pursuant to that contract, and Lavelle Murray’s resultant damages. As such, Haggerty has been furnished adequate notice of the breach of contract claim against which he must defend, and his preliminary objections to Count I of the complaint will therefore be overruled.

(D) Joinder of “Haggerty for Senate ” Committee

Haggerty alternatively argues that “[t]he registered political committee Haggerty for Senate ... is surely a necessary party to this action” and “should be added as a defendant or this case should be dismissed.” (Docket entry no. 7, pp. 5-6.) In response, Lavelle Murray cites 25 P.S. §§3241-3242 and argues that a campaign committee such as Haggerty for Senate is only authorized “to receive contributions or make expenditures” and need not be j oined as a necessary party since Haggerty himself is liable to Lavelle Murray. (Docket entry no. 8, pp. 14-15.) Lavelle Murray contends that Haggerty for Senate does not satisfy the criteria for classification as an indispensable party under Pennsylvania law. (Id., pp. 11-14.)

“An indispensable party is one whose rights or interests are so pervasively connected with the claims of the litigants that no relief can be granted without infringing on those rights or interests.” Hubert v. Greenwald, 743 A.2d 977, 979-80 (Pa. Super. 1999), appeal denied, 563 Pa. 688, 760 A.2d 854 (2000). In determining whether a party is indispensable, the court should consider: whether absent parties have a right or interest related to the claim, and if so, what the nature of that right or interest is; whether that right or interest is essential to the merits of the issue; and whether justice can be afforded without violating the due process rights of absent parties. Centolanza v. Lehigh Valley Dairies Inc., 540 Pa. 398, 403, 658 A.2d 336, 338-39 (1995); In re Estate of Moore, 871 A.2d 196, 204 (Pa. Super. 2005), appeal denied, 586 Pa. 728, 890 A.2d 1060 (2005). “The basic inquiry in determining whether a party is indispensable concerns whether justice can be done in the absence of a third party.” Hubert, 743 A.2d at 980 (quoting CRY Inc. v. Mill Service Inc., 536 Pa. 462, 469, 640 A.2d 372, 375-76 (1994)).

Haggerty does not assert in his preliminary objections that his campaign committee is an “indispensable party.” Rather, Haggerty’s preliminary objections are predicated upon Rule 1028(a)(5) and his contention that Haggerty for Senate is a “necessary party” in this matter. See Pa.R.C.P. 1028(a)(5) (stating that preliminary objections may be filed based upon “nonjoinder of a necessary party”). A necessary party is one “whose presence, while not indispensable, is essential if the court is to resolve completely a controversy and to render complete relief.” Pennsylvania Human Relations Commission v. School District of Philadelphia, 167 Pa. Commw. 1, 14, 651 A.2d 177, 184 (1993); In re Emery, 138 Pa. Commw. 668, 673, 589 A.2d 283, 285 (1991); York-Adams County Constables Association v. Court of Common Pleas of York County, 81 Pa. Commw. 566, 569, 474 A.2d 79, 81 (1984); Pennsylvania Assigned Claims Plan v. Insurance Commission of the Commonwealth, 54 Pa. Commw. 93, 96-97, 420 A.2d 25, 27 (1980); County of Allegheny v. Department of Public Welfare, 31 Pa. Commw. 379, 383, 376 A.2d 290, 292 (1977), aff’d, 486 Pa. 144, 404 A.2d 671 (1979). Unlike the absence of an indispensable party which deprives the court of jurisdiction to issue an enforceable decree or order, seo Hubert, supra, the failure to join a necessary party does not affect the jurisdiction of the court. County of Allegheny, supra; Emerald Enterprises Ltd. v. Upper Mt. Bethel Township, 39 D.&C.3d 536, 539 (Northhamp. Cty. 1985). Moreover, the conclusion that a party is not an indispensable party does not mean that joinder of that party is otherwise unnecessary. See York-Adams County Constables Association, supra (finding that although county commissioners were not indispensable parties, they were nevertheless required to be joined as necessary parties); County of Allegheny, supra at 383 (“[T]he conclusion, however, that their joinder is not required to confer jurisdiction upon the court does not mean that such joinder is not otherwise necessary.”). On the contrary, joinder as a necessary party may be warranted “so as to accomplish the purposes of avoiding multiple suits and conserving judicial resources.” Emerald Enterprises Ltd., supra at 539 (citing Mangin v. Huntingdon Inc., 71 D.&C.2d367, 370-71 (Bucks Cty. 1976)).

Lavelle Murray’s complaint avers that in October 2005, “Lavelle Murray and Haggerty, by and through either his campaign, staff or himself, sent and received a series of e-mails either to or from each other regarding Haggerty’s projected 2006 primary election.” (Docket entry no. 1, ¶9.) As observed above, many of the e-mails attached to Lavelle Murray’s complaint were authored or received by a campaign committee assistant named Shelby. (Id., attachment no. 1.) Haggerty will presumably argue in this case that the Lavelle Murray services in dispute were performed at the express or implied direction of campaign committee staff rather than Haggerty. It is conceivable that the fact-finder may conclude that Haggerty is not personally liable for Lavelle Murray’s unpaid invoices. See e.g., Duquesne Litho Inc., supra (candidate found not liable whereas political consulting organization held liable). In the event that the fact-finder reaches such a conclusion prior to the expiration of the statute of limitations applicable to Lavelle Murray’s contract claim, it is possible that Lavelle Murray could then institute a second suit alleging breach of contract by Haggerty for Senate. See Wilkes ex rel. Mason v. Phoenix Home Life Mutual Insurance Co., 587 Pa. 590, 611 n.9, 902 A.2d 366, 378 n.9 (2006) (res judicata or claim preclusion requires identity of persons and parties to the action); R. W. v. Manzek, 585 Pa. 335, 350, 888 A.2d 740, 748 (2005) (collateral estoppel or issue preclusion applies only if the party against whom it is asserted was a party or in privity with a party in the prior case).

Unless Haggerty for Senate is joined as a necessary party to this proceeding, the prospect of duplicative litigation and inefficient use of limited judicial resources will exist. The interests of the litigants and the courts will best be served if Haggerty for Senate is joined as a party in this action so that a single, definitive adjudication can be made. Contrary to Haggerty’s contention, dismissal of this action is an inappropriate remedy for failure to join a necessary party, and, for that reason, the preliminary objections will be sustained only to the extent that Lavelle Murray will be ordered to file an amended complaint naming Haggerty for Senate as a necessary party. See York County Constables Association, supra; Lewison v. Vitti, 20 Pa. Commw. 587, 590-91, 342 A.2d 507, 510 (1975). An appropriate order follows.

ORDER

And now, October 19, 2006, upon consideration of “defendant’s preliminary objections,” the memoranda of law submitted by the parties and the oral argument of counsel on October 11,2006, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendant’s preliminary objections in the nature of a demurrer for failure to state a claim against the defendant individually are overruled;

(2) Defendant’s preliminary objections asserting a failure to adequately allege an oral contract in conformity with Pa.R.C.P. 1028(a)(3) are overruled; and

(3) Defendant’s preliminary objections pursuant to Pa.R.C.P. 1028(a)(5) alleging the nonj oinder of a necessary party are sustained to the extent that the plaintiff is directed to file an amended complaint within the next 20 days joining the defendant’s campaign committee, Haggerty for Senate, as a named party in this action.