author: KWIDIS, J.,

text:
    Robinson v. Clark

      Barry Palkovitz, for plaintiffs.

      David C. Martin Jr., for defendant.
    November 30, 2009
   KWIDIS, J.,

Before this court is the defendants, Paul Clark t/d/b/a Colonial Grill’s motion for summary judgment. Because material issues of tact exist regarding the defendants’ liability, the motion for summary judgment is denied.

On the night of March 31, 2006 and into the early morning hours of April 1,2006, the plaintiff’s decedent, Yvonne Robinson, was drinking with friends at the defendant tavern, Colonial Grill. After consuming an excessive amount of alcohol, Ms. Robinson attempted to drive herself home. During her drive, Ms. Robinson was unable to negotiate a turn and collided with the guardrail.

Ms. Robinson sustained significant blunt trauma and crush injuries, which resulted in her death.

On January 31, 2007, the Plaintiff filed a complaint against the defendants, alleging, in part, that the defendants were negligent per se and in violation of the Pennsylvania Liquor Code, 46 Pa.C.S. §4-493, by selling alcoholic beverages to Ms. Robinson, who the plaintiff claims was visibly intoxicated.

On July 16, 2009, the defendants filed a motion for summary judgment alleging, in part, that he is not liable as: (1) Ms. Robinson was already visibly intoxicated when she arrived at the Colonial Grill around 10 p.m. on the night of the accident; (2) the defendants’ bartender did not serve Ms. Robinson any alcohol that night; and (3) there is a significant discrepancy in time between Ms. Robinson’s departure from the bar and the accident.

Under the Pennsylvania Rules of Civil Procedure, summary judgment may be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). The Supreme Court explained that “the record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991) (citing Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970)) and Curry v. Huron Insurance Co., 781 A.2d 1255, 1257 (Pa. Super. 2001). The Supreme Court further elaborated that “where the facts can support conflicting inferences, it cannot be said that the case is free and clear from doubt and thus ripe for summary judgment.” Wash ington v. Baxter, 553 Pa. 434, 447 n.10, 719 A.2d 733, 740 n.10 (1998) (citing Marks at 135, 589 A.2d at 206.)

For purposes of determining whether the grant of summary judgment is precluded, the court must consider the following factors: (1) whether the plaintiff has alleged facts sufficient to establish a prima facie case; (2) whether there is any discrepancy as to any facts material to the case; and (3) whether granting summary judgment would result in the trial court usurping the role of the jury by resolving material issues of fact. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992); Swords v. Harleysville Insurance Companies, 584 Pa. 382, 883 A.2d 562 (2005).

Under these guidelines, this court has proceeded to analyze the controlling cases involving liquor liability.

The Pennsylvania Liquor Code, 46 Pa.C.S. §4-493 states that “it should be unlawful for any licensee ... or any employee, servant or agent of such licensee ... to sell, furnish or give any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated.”

Therefore, in order for a bar or tavern to be held liable in Pennsylvania, the plaintiff must establish that said bar/ tavern “sold, furnished, or gave liquor” to an intoxicated patron. However, dram shop liability may be proven without direct eyewitness testimony. Specifically, the Superior Court, in Fandozzi v. Kelly Hotel Inc., 711 A.2d 524, 527 (Pa. Super. 1998), stated that even though the “appellants... offered no direct evidence that Shish was served alcohol at a time when he was visibly intoxicated ..., we believe appellants have produced sufficient circumstantial evidence to create a jury question on this issue.”

In the instant matter, a genuine question of fact exists as to the defendants’ liability under the Pennsylvania Liquor Code. Neither party disputes that Ms. Robinson was visibly intoxicated while at the Colonial Grill on the night of the accident. However, the defendants argue that Ms. Robinson was already intoxicated when she arrived at the bar. The defendants also argue that the bartender never served Ms. Robinson any alcohol. The plaintiff’s witnesses have sworn, in the alternative, that Ms. Robinson was drinking alcohol at the Colonial Grill, specifically, that Ms. Robinson was drinking “what looked like a mixed drink.” A jury could make the logical inference that the drink Ms. Robinson was drinking was in fact alcoholic.

Therefore, sufficient evidence exists to support a juiy’s conclusion that the defendants “sold, furnished, or gave liquor” to Ms. Robinson while she was visibly intoxicated. On that basis, summary judgment is inappropriate in this case.

This court enters the following order.

ORDER

And now, November 30, 2009, after argument and consideration of the defendants, Paul Clark t/d/b/a Colonial Grill’s motion for summary judgment in the above-captioned case, it is hereby ordered and directed as follows:

The defendants’ motion for summary judgment is denied.


source: Caselaw Access Project

author: RUSSELL, J,

license: Public Domain

text:
    Bashir v. Ajaye

      DoraR. Garcia, for plaintiffs.

      Michael E. Ellery and Kevin R. McNulty, for defendant.
    May 12, 2010
   RUSSELL, J,

Plaintiff-appellant, Muhammad Bashir, and plaintiff-appellant, Rubina Bashir, brought this action against defendant-appellee, Robert Ajaye, administrator of the estate of Arnold Ajaye to recover damages stemming from a rear-end collision that occurred on January 17, 2004. At trial, plaintiffs asserted that defendant’s negligence in the operation of his vehicle was the factual cause of plaintiffs’ injuries. A jury trial commenced before the Honorable Edward Russell on September 8, 2009 and the jury returned a verdict in favor of the defendant on September 9, 2009. The jury found that the accident was not the factual cause of the plaintiffs’ lower back pain.

On September 21, 2009, plaintiffs filed a post-trial motion requesting a new trial. Defendant replied on October 16, 2009. On November 20, 2009, this court heard oral argument on plaintiffs’ post-trial motion and entered an order denying plaintiffs’ post-trial motion on November 23, 2009. On December 23, 2009, plaintiffs filed a notice of appeal regarding this court’s order denying plaintiffs’ post-trial motion. On December 23,2009, this court entered judgment on the verdict.

On February 1, 2010, this court ordered plaintiffs to file and serve on the trial judge a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 25 days from the date of the order. Plaintiffs filed their statement on February 19,2010. In their statement, plaintiffs contends:

“(1) The trial court erred in admitting the videotaped deposition of the defense medical expert, Dr. Brooks. The deposition of Dr. Brooks was obtained ex parte and in violation of a prior order of this court, precluding the defendant from offering any defense to plaintiffs’ claims.
“(2) Plaintiffs were required to subpoena defendant’s expert physician witness to testify at the trial of this matter because the defendants had obtained ex-parte videotaped deposition of the witness in violation of a court order. At the time this witness was scheduled to appear and testify, plaintiffs’ counsel requested the trial court compel the witness to honor the duly issued subpoenas served upon the doctor to appear and testify at trial. The trial court refused in the apparent belief that it could not compel a physician witness to testify at a trial and that it could not direct such physician to produce reports of other medical-legal examinations performed by him. In so holding, the trial court erred.
“(3) Plaintiffs obtained preclusion and judgment against defendant on the issue of liability for his default in failing to produce discoverable documents in his possession; failing to appear for depositions; and failing to answer interrogatories. This sanction was later allegedly vacated and was insufficient in any event in light of the egregious nature of defendant’s conduct. Plaintiffs should have been given judgment on the issue of causation and this matter should have been submitted to the jury solely for the purposes of assessing damages.
“(4) The trial court erred in refusing to enforce the subpoena issued to the defendant’s insurance company and in failing to require the full disclosure of all of the insurance company’s files and testimony by the custodian.
“(5) The trial judge erred and abused his discretion in repeatedly engaging in conduct that prejudiced the plaintiffs and prohibited counsel from developing a proper record for appellate review. Plaintiffs’ counsel made numerous requires at sidebar conferences and in the robing room to have various objections placed upon the record. The trial court refused to allow counsel to make such objections and further threatened the declaration of a mistrial of counsel offered any statements regarding such objections before the stenographer in open court. In so acting, the trial judge abused his discretion and erred as a matter of law.
“(6) The trial court erred with regard to the limitations it imposed on plaintiff’s evidence with respect to economic damages. At trial, plaintiffs intended to introduce evidence regarding his actual income loss as calculated by his average declared income tax earnings averaged over a period of prior years. In addition, however, the plaintiffs sought to present evidence regarding his loss of earning capacity arising from the accident. The trial court erroneously refused such evidence.
“(7) To the extent the jury’s verdict represents a finding that the issue of causation was not established with regard to plaintiff-husband’s injuries, this too is error. Where there is no dispute that the defendant is negligent and the medical evidence unequivocally indicates that the accident caused some injury to the plaintiff, the jury may not find that the defendant’s negligence was not a substantial factor in bringing about at least some of the plaintiff’s injuries. In refusing to set aside the verdict, the trial court erred.” Plaintiffs’ statement of errors complained of an appeal filed on Februaiy 19, 2010 at 1-4.

Plaintiffs appeal this court’s decision to deny post-trial relief. As presented in plaintiffs’ 1925(b) statement of February 19, 2010, plaintiffs finds error with this court’s rulings. For the following reasons, this court’s ruling should be affirmed.

I. BACKGROUND

At trial, plaintiffs alleged that Ajaye was negligent when, on January 17, 2004, at or near an on ramp on Route 676 heading toward Center City, Philadelphia, his vehicle bumped into the rear-end of plaintiff’s vehicle, which plaintiff Muhammad Bashir was operating. N.T. 9/8/09, at 30-32. Both cars were drivable from the scene of the accident. N.T. 9/8/09, at 60. Following the accident, plaintiff Muhammad Bashir drove himself to Jeanes Hospital, where he was treated and released. N.T. 9/8/09, at 60. He continued to seek treatment through his doctor, where he received physical therapy for about six months. N.T. 9/8/09, at 42. He was also seeing a spine specialist, who prescribed pain medications. N.T. 9/8/09, at 48.

Plaintiff Muhammad Bashir also testified that he did not receive a performance-based promotion because his performance at work was down due to the accident. N.T. 9/8/09, at 51. Plaintiffs also presented the videotaped testimony of Dr. Randall Smith. N.T. 9/8/09, at 105. Defendant presented the videotaped testimony of Dr. Michael Brooks. N.T. 9/8/09, at 114.

At the conclusion of the testimony, this court charged the jury. This court explained that the jury must be the final finders of fact and that they must weigh all the evidence in reaching their final conclusion.

II. DISCUSSION

(A) The Court Properly Allowed the Testimony of Defendant’s Medical Expert Witness, Dr. Michael Brooks

The court was correct in allowing the videotape testimony of defendant’s medical expert because plaintiffs had ample notice of the deposition testimony and plenty of time to depose Dr. Brooks. [I]t is well established that admission of expert-opinion evidence is a matter for the discretion of the trial court and will not be reversed, overruled or disturbed unless there was a clear abuse of discretion.” Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969).

Dr. Michael’s Brooks’ videotape deposition was presented to the juiy at trial. N.T. 9/8/09, p. 114. Plaintiffs argue that Dr. Brooks’ deposition was obtained ex parte in violation of a prior court order. This argument, however, is without basis.

In the beginning of the trial and on the record, plaintiffs objected to Dr. Brooks’ videotape deposition, claiming a valid preclusion order existed against defendant when Dr. Brooks’ deposition was taken. N.T. 9/8/09, pp. 4-9. Dr. Brooks’ deposition was originally scheduled for November 26, 2007, but had to be postponed because plaintiffs’ then counsel, Dora Garcia, was disbarred. N.T. 9/8/09, p. 5. The deposition was rescheduled for Friday, April 4, 2008, and successor counsel for plaintiffs, Jeffrey Pearson, was sent a notice of deposition on March 11, 2008. N.T. 9/8/09, pp. 5-6. Mr. Pearson notified defendant on April 1, 2008 that he would be out of state and that defendant had not answered plaintiffs’ expert interrogatories. Defense counsel advised Mr. Pearson that the deposition would not be rescheduled and that he had at least three weeks notice for the deposition, which had already been continued from a prior date. N.T. 9/8/09, p. 6. Mr. Pearson never advised defense counsel that he would not appear for Dr. Brooks’ deposition because Dr. Brooks was precluded from testifying at trial.

To support their argument, plaintiffs rely on Mudd v. Nosker Lumber Inc., 443 Pa. Super. 486, 662 A.2d 660 (1995), but their reliance is misplaced. In Mudd, the appellants claimed that a judgment of non pros had been entered against them. Id. at 486, 662 A.2d at 661. In Mudd, the last docket activity initiated by the Mudds occurred on January 31, 1991. Id. at 489, 662 A.2d at 663. On November 11, 1993, the day before the trial was due to begin, appellee’s attorney requested that the trial be postponed for another month, so that the parties could pursue a settlement. Id. at 489-90, 662 A.2d at 663. Four weeks later, and several weeks shy of the continued trial date, defendant moved for non pros on December 13, 1994. Id. at 490, 662 A.2d at 663. The court held that the appellees were estopped from filing a motion for non pros when appellees asked for the continuance, probably in order to file the non pros motion. Id. at 491, 662 A.2d at 664, The appellees misled the Mudds into believing they wished to negotiate a settlement and then asked that the court to reward them for their tactics by affirming the grant of non pros. Id.

The case sub judice differs substantially from Mudd. First, the preclusion order against defendant was improper. As soon as defense counsel learned a preclusion order existed, he promptly filed a motion for reconsideration. The Honorable Allan L. Tereshko granted defendant’s motion for reconsideration and noted on the order vacating the sanctions that the order imposing sanctions had been entered in error.

Additionally, plaintiffs’ counsel had ample notice of the deposition. Defendant gave plaintiffs three weeks notice. Plaintiffs’ counsel, however, did not inform defendant that he could not attend until three days before the deposition. Additionally, in notifying defendant that he would not be present, plaintiffs’ counsel never mentioned the fact that he would not appear because defendant was precluded from taking any discovery. Moreover, plaintiffs never tried to depose Dr. Brooks after plaintiffs’ then counsel Mr. Pearson failed to appear at the deposition. Dr. Brooks’ deposition took place on April 4,2008. In contrast, the trial took place September 8,2009. Even though plaintiffs’ counsel during the trial was not the counsel that failed to appear at Dr. Brooks’ deposition, plaintiffs’ trial counsel entered his appearance on September 4, 2008. Thus, from the time plaintiffs obtained new counsel, they had over one year until the time of trial to depose Dr. Brooks. During that time period, no evidence exists that plaintiffs attempted to depose Dr. Brooks. In effect, plaintiffs’ counsel asked this court to fix a mistake he made in not attempting to depose Dr. Brooks. This court has the discretion to allow this testimony, and this court did not err in making that ruling.

Finally, even if, as plaintiffs argue, Dr. Brooks’ deposition was taken in violation of a court order, plaintiffs should not have waited until the day of trial to raise this issue. Discovery violations should be brought up with discovery court and not left until the day of the trial. Plaintiffs had ample time to bring up this matter before the court before the trial date. However, plaintiffs never raised this issue. Thus, this court properly allowed the deposition of Dr. Brooks.

(B) The Court Properly Refused To Enforce the Subpoena of Defendant’s Medical Expert Witness, Dr. Michael Brooks

Plaintiffs next argue that this court erred by failing to compel the testimony of Dr. Brooks at trial. The law in Pennsylvania clearly states that a party may not compel the testimony of another party’s expert witness. See Evans v. Otis Elevator Company, 403 Pa. 13, 27, 168 A.2d 573, 580 (1961). Plaintiffs concede that courts may not compel the testimony of another party’s expert. Therefore, this court was proper in not compelling the testimony of Dr. Brooks at trial.

Additionally, as stated above, plaintiffs’ prior counsel had an opportunity to cross-examine Dr. Brooks when his deposition was scheduled on April 4,2008. Moreover, plaintiffs’ current counsel has had plenty of time to cross-examine Dr. Brooks before trial. Essentially, plaintiffs asked this court to correct their failure to depose Dr. Brooks. Thus, this court was proper in refusing to enforce the subpoena against Dr. Brooks.

(C) The Court Properly Ruled That Plaintiffs Were Not Entitled to Judgment on Causation

Plaintiffs claim that this court should have given them a judgment on causation because of the egregious nature of defendant during discovery. Plaintiffs, however, completely mischaracterize the procedural history and substantive record in this case.

First, plaintiffs claim there was a valid preclusion order and judgment against defendant on the issue of liability. That statement, however, is false. As discussed above, no valid preclusion order was ever entered against defendant. Additionally, no judgment for default or an order precluding defendant from presenting the issue of factual cause to the jury was ever entered against defendant.

In their brief in support of post-verdict motions, plaintiffs state that Pa.R.C.P. 4019(c)(3) expressly authorizes a court to enter a default judgment against a defendant in a civil action who refuses to comply with the court’s discovery orders. Again, however, plaintiffs’ reliance is misplaced. Pa.R.C.P. 4019(c)(3) is a discovery rule and all discovery was completed by the time trial commenced in September 2009. Thus, all discovery issues and sanctions should have been disposed of well in advance of trial. Therefore, this court did not abuse its discretion when it refused to order sanctions against defendant.

(D) The Court Properly Refused To Enforce the Subpoenas Issued to Defendant’s Insurance Company

“The admissibility of evidence is a matter addressed to the sound discretion of the trial court and should not be overturned absent an abuse of discretion.” Delpopolo v. Nemetz, 710 A.2d 92, 94 (Pa. Super. 1998).

Generally, evidence of insurance is irrelevant and prejudicial and justifies grant of a mistrial. Paxton National Insurance Company v. Brickajlik, 513 Pa. 627, 631, 522 A.2d 531, 533 (1987). “The reason is obvious: fact-finders should not be tempted to render decisions based upon the extraneous consideration that an insurance company will actually pay the bill.” Id.

Therefore, if plaintiffs had presented a claims representative or records custodian from Allstate Insurance Company, this information would have been prejudicial and inadmissible at trial. Secondly, plaintiffs failed to set forth a sufficient basis explaining why the Allstate file would have been relevant in this case. All plaintiffs stated was that the “file likely contained helpful information which plaintiffs could have employed to impeach the defendant’s argument that the accident did not cause injury to plaintiff-husband.”

Plaintiffs’ statement is misguided for several reasons. First, no logical correlation exists between an insurance agent’s notes in a file and the ability to impeach a defendant regarding a plaintiff’s injuries in an accident. The insurance agent is not a medical expert and could not account for the injuries one could sustain in an automobile accident.

Second, plaintiffs should not be permitted to go on a fishing expedition in an effort to bring in evidence that is otherwise inadmissible. The discoverable portions Allstate’s files were produced during discovery. Thus, any information from the insurance records that plaintiffs could have used were given to them. Accordingly, the court properly refused to enforce the subpoenas issued to defendant’s insurance company,

(E) Judicial Conduct

During the trial, this court never abused its discretion by engaging in conduct that prejudiced the plaintiffs, nor did it prohibit plaintiffs’ counsel from making a proper record. “An abuse of discretion occurs ‘when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. ’ ” Tukovits v. Prudential Insurance Company of America, 448 Pa. Super. 540, 546, 672 A.2d 786, 790 (1996). This court’s actions never amounted to judicial misconduct.

In support of their claims during trial, plaintiffs testified concerning their alleged damages from the motor vehicle accident, In addition, plaintiffs presented medical testimony from Dr. Randall Smith, an orthopedic surgeon. The jury was given ample evidence to evaluate the merits of plaintiffs’ claims, Plaintiffs’ counsel made a record to preclude the expert testimony from Dr. Michael Brooks, which was summarily denied by the court. Plaintiffs’ counsel and defense counsel presented agreed upon points for charge and an agreed upon verdict slip, which was ultimately presented to the jury. (N.T. 9/9/09, P-3.)

In support of their contention for misconduct, plaintiffs rely on DiMonte v. Newman Medical Center, 751 A.2d 205 (Pa. Super. 2000). In DiMonte, it was well documented that the trial judge engaged in inappropriate behavior during the course of the trial, including standing on a table or desk near the witness stand to adjust a heating vent and conducting personal business while on the bench. In that case, it was also pointed out that the trial judge commented that there were African-American jurors, that we need to have more African-Americans participating in trials, and it was great to see them participating. The DiMonte court stated:

“Assuming arguendo that appellant’s allegations are true, we have a circumstance where: (1) the court left the bench on numerous occasions; (2) the court enlisted the assistance of a juror in a courtroom maintenance project during testimony; (3) the court made and received numerous phone calls of both a business and personal nature during testimony and closing argument; and (4) the court left the courtroom entirely, without explanation, on two separate occasions.
“Appellant’s claim that she was denied a fair trial by the actions of the trial court is further supported by the holding in United States v. Mortimer, 161 F.3d 240 (3d Cir. 1998). In Mortimer, the Third Circuit held that the unexplained absence of the trial judge during the defendant’s closing argument constituted structural error because the judge was absent during a critical stage of the trial. The court explained:
“A trial consists of a contest between litigants before a judge. When the judge is absent at a ‘critical stage’ the forum is destroyed. There is no trial. The structure has been removed. There is no way of repairing it. The framework ‘within which the trial proceeds’ has been eliminated. The verdict is a nullity, (citations omitted)” DiMonte, 751 A.2d at 211.

Based on conduct of the trial judge in DiMonte, the Superior Court remanded that case for an evidentiary hearing to determine if there was any merit to the appellant’s claims and appellant’s due process to a fair trial.

In the present case, no such conduct occurred. At all times, this court conducted itself appropriately. He was present throughout the entire trial, allowed both parties to present evidence, and completely allowed for a fair and impartial trial. Plaintiffs point to nothing in the notes of testimony that supports their contentions of the judge’s misconduct. As such, plaintiffs’ accusations are untrue.

Therefore, this court did not abuse its discretion during the trial.

(F) The Court Properly Excluded Plaintiff’s Wage Claim

The plaintiffs content that this court was improper on the limitations it imposed on plaintiffs’ evidence with respect to economic damages. Plaintiffs, however, never attempted to elicit any evidence of actual income loss or proof of support for such an income claim.

In fact, the only testimony about income loss concerned a performance-based promotion and the following testimony illustrates the point of lack of evidence or sufficient foundation by the plaintiff Muhammad Bashir:

“Q: Would that promotion have been automatic or would you — ?
“A: No, it’s a performance-based promotion.
“Q: And it’s your testimony today that your performance was down and that’s why you did not get it?
“A: Absolutely.
“Q: What would that job have paid if you had received it?
“Mr. McNulty: Objection, your honor.
“The Court: Sustained.
“Q: When would you have received that promotion?
“A: About five years, four years ago.” N.T. 9/8/09, p. 51-52.

Other than this very speculative line of questioning, no evidence exists that plaintiffs tried to establish lost income or wages. This line of questioning was not sufficient evidence or a proper foundation for the evidence on the issue of lost wages.

Moreover, the jury found that defendant was not the factual cause of plaintiff Muhammad Bashir’s injuries. Thus, even if plaintiffs were allowed to bring in a wage claim, the jury would not have awarded those damages.

(G) The Court Properly Ruled That the Jury’s Verdict Was Not Contrary to the Evidence

Plaintiffs next contend that the jury’s verdict was contrary to the evidence. In this case, defendant did not dispute negligence, but did dispute factual cause. In their post-trial brief, plaintiffs claim that “all the medical experts conceded that plaintiff husband suffered at least some injury to his knees as a consequence of the accident.” “Where there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injuiy to the plaintiff, the jury may not find the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiff’s injuries.” Such a verdict is contraiy to the weight of the evidence adduced at trial. In other words, “a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002). In other words, if, in fact, a defendant’s expert concedes injuiy attributable to an accident, then the court may take notice of this and not charge the jury on factual cause. Id.

Plaintiffs, however, completely misstate the record when they state that all the experts concede that plaintiff husband suffered at least some injury because of the accident. In fact, Dr. Brooks, the defense expert, did not acknowledge a link between the plaintiff’s knee injury and the accident. All Dr. Brooks did was not dispute that plaintiff’s knees were injured in the accident. However, Dr. Brooks is a neuroradiologist who reviews spine films and does not testify regarding knees. The fact that Dr. Brooks could not dispute whether plaintiff’s knees were injured is not tantamount to Dr. Brooks saying that plaintiff suffered an injury in the accident. Moreover, not disputing an injury is not the same thing as agreeing an injury has occurred. Here, this court was correct in allowing the jury to decide factual cause because all medical testimony did not agree that plaintiff’s knees were injured in the accident.

III. CONCLUSION

For the foregoing reasons, this court respectfully requests that the order deriving plaintiffs’ post-trial motions, entered on November 23, 2009, be affirmed.

      . The notes of testimony have the date as “April 1, 2007.” N.T. 9/8/09, p. 6.

      . Plaintiffs’ brief in support of post-verdict motion, at 14.

      . Plaintiff’s brief in support of post-verdict motions, at 22.

      . Plaintiff’s brief in support of post-verdict motions, at 28.


author: ALBRIGHT, J.,

text:
    St. Edmond’s Federal Savings Bank v. Victor Custom Homes Inc.

      David A. Koss, for plaintiff.

      Phillip D. Berger, for defendant.
    June 24, 2010
   ALBRIGHT, J.,

The Defendants, Victor Custom Homes Inc. (VCH), James Hoffman and Karen Hoffman appeal from the trial court’s order, dated June 22, 2009, denying the defendants’ motion for post-trial relief. For the reasons that follow, the undersigned believes that the order aforementioned should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of VCR’s default on a $2,115,036 loan provided to it by the plaintiff and acknowledged by a promissory note, dated November 1, 2006, signed by VCH’s president, James Hoffman. The defendants herein, the Hoffmans, each agreed, pursuant to a certain surety agreement, also hearing the date of November 1, 2006, to guarantee payment of the plaintiff’s loan to VCR, but failed to cure the latter’s default, resulting in the plaintiffs securing of a judgment entered by confession against all of the defendants in the amount of $2,482,582.72. Following the entry of judgment against them on July 25, 2008, neither VCR nor the Hoffmans made any effort to either strike or open the judgment which was executed upon by the plaintiff through a writ of execution issued on September 19, 2008.

Thereafter, in response to the writ and levy made upon VCR’s property located at 621 Great Springs Road, Bryn Mawr, Pennsylvania, the real estate and premises at that address was sold to the plaintiff at sheriff’s sale for costs ($2,741.39) on November 19, 2008. Since the proceeds of the sale were insufficient satisfy the judgment outstanding about the defendants, the plaintiff, on February 10,2009, pursuant to the Deficiency Judgment Act, filed a petition to fix fair market value of real property, formerly owned by VCH, at $2,200,000. See e.g., 42Pa.C.S. §8103. In addition to fixing the fair market value of the real estate, the plaintiff sought to obtain a deficiency judgment against the defendants in the amount of $389,098.36, including post-judgment interest at the statutory rate of 6 percent ($47,723.01), real estate taxes due, totaling $13, 823.81, and costs of $44,969 incurred by the plaintiff in completing the construction of the property’s single family residence and required in order to obtain the certificate of occupancy needed to make the property marketable for sale.

In response to the plaintiff’s petition, and, for the first time since the filing of the underlying complaint in confession of judgment, the defendants appeared and filed an answer to the subject petition. Thereafter, in accordance with the Pennsylvania Rules of Civil Procedure governing petitions to fix value and deficiency judgments, the undersigned conducted a hearing at which all the parties were present and represented by counsel. The trial court’s order, dated March 17, 2009, resolved the issues raised by the plaintiff providing that:

“[I]t is hereby ordered that the fair market value of the real property located at Great Springs Road, Bryn Mawr, Pennsylvania is determined to be $2,200,000.
“It is further ordered that there is a deficiency due from Victor Custom Homes Inc., James Hoffman and Karen Hoffman, jointly and severally, to St. Edmond’s Federal Savings Bank in the sum of $389,098.54 as of January 2, 2009 in the above matter.
“It is further ordered that the docket shall reflect this deficiency as a deficiency judgment entered against Victor Custom Homes Inc., James Hoffman and Karen Hoffman, jointly and severally, in the sum of $389,098.54 as of January 2, 2009.” (Tr. ct. order, 3/17/09.) (emphasis added)

Taking exception to the trial court’s ruling, the defendants filed a motion for post-trial relief on March 25, 2009, which was thereafter briefed by the parties and argued before the undersigned, who denied the motion on June 22, 2009. That decision was appealed by the defendants on July 20, 2009, and, following a number of administrative delays, the defendants, in response to the lower court’s direction of December 15,2009, filed their statement of errors complained of (Pa.R.A.P. 1925(b) statement), which set forth the following issues for appellate review:

“(a) The court erred as a matter of law by deducting from the fair market value of the property sold at execution the amount of $44,969, being the amount expended by the petitioner, St. Edmonds Federal Savings Bank, subsequent to the execution sale, in order to complete the construction of the residence purchased by the petitioner at the execution sale and in order to obtain a certificate of occupancy for the residence.

“Said deduction is not a deduction permitted by the Deficiency Judgment Act. The expenditure made by the petitioner in order to complete the construction and obtain a certificate of occupancy is not a prior lien; is not a tax or municipal claim; is not an item that was paid at the distribution on the sale; and, is not a cost of the execution sale. The word ‘costs’ as is set forth is not defined in the Act (42 Pa.C.S. §8103 et seq.), nor is the word defined in Pa.R.C.P. 3276 et seq., and therefore the word ‘costs’ must be defined according to its common and approved usage. Gregory v. Harleysville Mutual Insurance Co., 374 Pa. Super. 33, 37, 542 A.2d 133, 135 (1988). Recoverable costs are the costs of proceedings in court. Costs not incurred in the court action are recoverable only by statutory authority. Gregory, ibid. The cost to complete the construction of the residence was not a cost of proceedings in court and is not authorized by the Deficiency Judgment Act. Thus, the $44,969 should not have been included to reduce the fair market value of the property and said amount should be deleted from the amount of the deficiency judgment entered against the defendants/appellants. See People First National Bank & Trust Co. v. Hume, 50 D.&C.2d 141 (Allegheny Cty. 1968).

“(b) Despite the fact that the defendants/appellants failed to petition the court to open the confessed judgment, the court, in the deficiency judgment action, manifestly abused its discretion and erred, as a matter of law, by refusing to allow the defendants/appellants to offer evidence to prove that the amount of the attorney collection fee of $323,815, which was included in the judgment confessed against the defendants/appellants, was obtained by the plaintiffs/appellees by the commission of fraud, on both the defendants/appellants and the court; was grossly excessive; was unlawful; and, was contrary to the written agreement of the parties.

Said evidence would have allowed the court and required the court to amend or modify the amount of the attorney collection fee to which the plaintiff/appellee was entitled to the sum of $5,000. See Lance v. Mann, 360 Pa. 26, 27-28, 60 A.2d 35, 36 (1948); PNC Bank v. Bolus, 440 Pa. Super. 372, 378-79, 655 A.2d 997, 1000 (1995); Stephenson v. Butts, 187 Pa. Super. 55, 59-60, 142 A.2d 319, 321 (1958); Providence Association v. Wrobel, 77 Montgomery County L.R. 53, 56 (1960).

DISCUSSION

The scope of review in a deficiency judgment proceeding is limited to determining “whether sufficient evidence exists to sustain the trial court’s order, or whether the court committed a reversible error of law.” First Federal Savings & Loan Association of Carnegie v. Keisling, 146 A.2d 1150, 1153-54 (Pa. Super. 2000) (quoting Citicorp Mortgage Inc. v. Morrisville Hampton Village Realty Ltd. Partnership, 456 Pa. Super. 338, 342, 690 A.2d 723, 725 (1997)). The purpose of Pennsylvania’s Deficiency Judgment Act is “to relieve a debtor of further personal liability to the creditor, if the real property taken by the creditor on an execution has a ‘fair market value,’ as of the date of the execution sale, sufficient so that the creditor may dispose of the property to others ... without a net loss to the creditor.” Citicorp Mortgage Inc. v. Morrisville Hampton Village Realty Ltd. Partnership, 456 Pa. Super. at 342, 690 A.2d at 725 (quoting Cheltenham Federal Savings & Loan Association v. Pocono Sky Enterprises Inc., 305 Pa. Super. 471, 479, 451 A.2d 744, 748 (1982)).

In this case, the defendants assert that the trial court erred in essentially two different respects, the first of which centers upon the trial court’s assessment of the pertinent provisions of the Deficiency Judgment Act which provide the following:

“(a) General rule. — Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered. If the judgment was transferred from the county in which it was entered to the county where the execution sale was held, the judgment shall be deemed entered in the county in which the sale took place....”

The Act continues with detailed procedural instructions, as follows:

“(c) Action on petition.— . . .
“(2) If an answer is filed controverting the averment in the petition as to the fair market value of the property, but no testimony is produced at the hearing supporting such denial of the fair market value, the court shall determine and fix as the fair market value of the property sold the amount thereof alleged in the petition to be the fair market value.
“(3) If an answer is filed alleging as the fair market value an amount in excess of the fair market value of the property as averred in the petition, the judgment creditor may agree to accept as the fair market value of the property the value set up in the answer and in such case may file a stipulation releasing the debtors and the owners of the property affected thereby, from personal liability to the judgment creditor to the extent of the fair market value as averred in the answer, less the amount of any prior liens, costs, taxes and municipal claims not discharged by the sale, and also less the amount of any such items paid at distribution on the sale.
“(4) If an answer is filed and testimony produced setting forth that the fair market value of the property is more than the value stated in the petition, the court shall hear evidence of and determine and fix the fair market value of the property sold.
“(5) After the hearing, if any, and the determination by the court under paragraph (1), (2) or (4) of the fair market value of the property sold, then, except as otherwise provided in subsection (f), the debtor shall be released and discharged of such liability to the judgment creditor to the extent of the fair market value of said property determined by the court, less the amount of all prior liens, costs, taxes and municipal claims not discharged by the sale, and also less the amount of any such items paid at the distribution on the sale, and shall also be released and discharged of such liability to the extent of any amount by which the sale price, less such prior liens, costs, taxes and municipal claims, exceeds the fair market value as agreed to by the judgment creditor or fixed and determined by the court as provided in this subsection, and thereupon the judgment creditor may proceed by appropriate proceedings to collect the balance of the debt.” 42 Pa.C.S. §8103(a)-(c). (emphasis added)

As set forth above, section 8103(c)(5) of the Deficiency Judgment Act specifically provides for the inclusion of “all... costs not... discharged by the sale .. . .” 42 Pa.C.S. §8103(c)(5). In addition, at the hearing on the plaintiff’s petition to fix fair market value, Mr. Charles F. Miller, the plaintiff’s executive vice president, chief lending officer and credit officer, testified that to obtain the requisite certificate of occupancy, the plaintiff spent $44,969. (N.T., 3/17/09, at 69-70, 72-73.)

Moreover, the defendants’ own expert, Mr. Eric Benson Baumholtz, a certified residential real estate appraiser, testified that, while he did not have an opportunity to inspect the interior of the property, the “client reported that the cost to complete... [certain unfinished] items in order to obtain a certificate of occupancy was $40,000,” thereby lending credence and an indicia of legitimacy to the plaintiff’s claim for costs amounting to $44,969. (N.T., 3/17/09, at 59.) Given the testimony provided by both Mr. Miller and Mr. Baumholtz regarding the costs necessary to obtain a certificate of occupancy for the property, sufficient evidence exists to support both the June 22 order denying the defendants’ motion for post-trial relief and the undersigned’s order of March 18,2009 fixing fair market value and determining the deficiency due.

The defendants’ second contention of error asserts that, despite their own admissions that they “failed to petition the court to open the confessed judgment” and that the time for such objections “has long passed,” the trial court erred by excluding evidence that the attorney’s fees contained in the confessed judgment were excessive and by failing to reduce those fees. (Defs.’ 1925(b) statement, at 3; N.T. 3/17/09, at 21.)

Pursuant to Pa.R.C.P. 2959(a)(3), where written notice of a confession of judgment is served upon the petitioner, the petition must then be filed within “30 days” after such service, unless the petitioner can demonstrate compelling reasons for his or her delay in seeking relief, hn this case, the disputed attorney’s fees totaling $323,815.12 were initially set forth in the plaintiff’s complaint in confession of judgment filed on July 25, 2008. The defendants, however, neglected to raise any objection to the assessment of attorney’s fees until February 27, 2009, when they filed an answer to the plaintiff’s petition to fix fair market value of real property, requesting, in addition, that the trial court reduce the judgment entered on July 25,2008. Having failed to avail themselves of the procedural safeguards provided in Pa.R.C.P. 2959 in a timely manner by petitioning the court to strike off or open the judgment, the defendants have waived any and all defenses or objections to the confessed judgment long since entered of record and which might otherwise have been properly addressed prior to the execution, levy and subsequent sale of the defendants’ property occasioned by the latter’s admitted default. SeePa.P.C.P. 2959(c). Indeed, as amply demonstrated at the hearing of this matter, sufficient evidence was produced to support the trial court’s findings and entry of a deficiency judgment in the amount stated in its order of June 22, 2009. The testimony presented in the March 17 hearing clearly established that the plaintiff’s costs of $44,969 were legitimate and incurred in response to its need to obtain the certificate of occupancy required to market and sell the property in order to recoup he losses occasioned by the defendants’ default. These kinds of expenses are precisely those which are intended to be recoverable under the Deficiency Judgment Act as a deductible expense.

CONCLUSION

For all of the aforementioned reasons, the trial court believes that the order, dated June 22,2009, denying the defendants’ motion for post-trial relief, should be affirmed.

      . The defendants’ notice of appeal identifies the order appealed from as “ the order entered in his matter on March 18, 2009.” The undersigned’s order, dated March 17, 2009, and docketed on March 18, 2009, fixed the fair market value of real property located at 621 Great Springs Road, Bryn Mawr, Pennsylvania and declaired a deficiency judgment in the sum of $389,098.54. The Superior Court issued an order, dated October 14,2009, in which it interpeted the order from which the defendants were appealing as the trial court’s order, dated June 22, 2009, denying the defendants’ motion for post-trial relief.

      . 42 Pa.C.S. §8103 (a) General rule. — Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings, and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court to fix the fair market value of the real property sold.

      . Pa.R.C.P. 327-3291: Pa.R.C.P. 3285 (“If an answer is filed which denies the allegations in the petition as to the fair market values, the prior lien amounts or the entitlement of the petitioner to any special allocation, the trial shall be limited to such of those issues as are raised by the answer, which shall be heard by a judge sitting without a jury in accordance with Rule 1038 [trial without jury].”)

      . Plaintiff acknowledges that it committed a mathematical error of $.18 in calculating the deficiency due. (N.T., 3/17/09, at 78, pl.’s resp. br. in opp’n to defs.’ mot. for post-trial relief, at 2, n.l.)

      . The undersigned initially issued an order dated July 27, 2009, requesting that the defendants submit their 1925(b) statement, but that order was apparently misplaced by the Montgomery County prothonotary.


author: PAPALINI, J,

text:
    Williams v. Chamounix Equestrian Center

      Kenneth F. Fulginiti, for plaintiff.

      Kenneth Scott, for defendant.
    March 19, 2010
   PAPALINI, J,

This matter comes before the court on the denial of defendant Work to Ride’s motion for post-trial relief, requesting a new trial, and in the alternative, remittitur.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises from injuries sustained by then 11-year-old plaintiff Pharoah Williams, who was kicked in the jaw by a horse while helping load the animal into a trailer. At the time of the accident, plaintiff was a participant in the defendant nonprofit organization Work to Ride’s horsemanship program, which offers to teach children how to properly care for and ride horses. Plaintiff had been enrolled in the program for approximately one year and four months when he attempted to assist an off-duty Work to Ride trainer load a horse into a trailer. The horse in question, a thoroughbred racehorse, boarded at the same stables as the defendant’s horses but was not part of the Work to Ride program.

During the loading attempt, plaintiff was situated behind the horse on its left. After several attempts by the trainer to lead the horse onto the trailer, plaintiff struck the horse with a stick on its rear in an effort to help. In response, the horse kicked toward its left side and injured the plaintiff, instantly shattering his jaw bones. Subsequently, plaintiff commenced the instant action for negligence.

On September 16, 2009, a jury trial lasting approximately four days was held in this matter, whereupon the jury rendered a verdict finding the defendant 90 percent negligent and the plaintiff 10 percent contributorily negligent and awarded damages in the amount of $2,500,000 to plaintiff Pharoah Williams and $117,023 to plaintiff Callie Williams for medical expenses. The total verdict was then molded to $2,378,353.97, pursuant to the grant of plaintiffs’ motion for delay damages in the amount of $23,033.27.

II. ISSUES

Defendant requests a new trial on the following grounds: (1) the verdict was against the weight of the evidence; (2) the court erred in permitting plaintiff’s expert, Jill Cooke, to testify; and (3) the court erred by precluding the testimony of defense witness, Suzanne Ross. Defendant also requests, in the alternative, remittitur be granted.

III. STANDARD OF REVIEW

The grant of a new trial is a matter within the discretion of the trial court. Monschein v. Phifer, 771 A.2d 18, 20 (Pa. Super. 2001). The trial court must decide whether such errors provide a sufficient basis for a new trial. Luzerne County Flood Protection Authority v. Reilly, 825 A.2d 779, 782 (Pa. Commw. 2003).

A new trial should be awarded on the ground that the verdict is against the weight of the evidence when the verdict of the jury is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Gunn v. Grossman, 748 A.2d 1235 (Pa. Super. 2000), appeal denied, 564 Pa. 711, 764 A.2d 1070 (2000); Martin v. Evans, 551 Pa. 496, 501, 711 A.2d 458, 461 (1998); Houseknecht v. Walters, 404 Pa. Super. 85, 590 A.2d 20 (1991); Kopeika v. Medical Services Association of Pennsylvania, 347 Pa. Super. 500, 500 A.2d 1168 (1985); Ditz v. Marshall, 259 Pa. Super. 31, 393 A.2d 701 (1978). A court, viewing the evidence in a light most favorable to the verdict winner, may grant a motion for a judgment n.o.v. only when no two reasonable minds could disagree that, as a matter of law, the plaintiff has failed to prove her case. Kearns v. Clark, 343 Pa. Super. 30, 34-35, 493 A.2d 1358, 1360 (1985). In addition, where the decision to grant a new trial in cases where the jury’s verdict is challenged as against the weight of the evidence is also within the discretion of the trial court. Criswell v. King, 575 Pa. 34, 47, 834 A.2d 505, 513 (2003).

IV. DISCUSSION

A. Request for New Trial on the Basis the Verdict Was Against the Weight of the Evidence, or in the Alternative, Grant a Remittitur

Defendant argues a new trial should be granted because the jury only assessed 10 percent contributoiy negligence on the part of the plaintiff in spite of his culpability in bringing about his injury and in spite of his experience with horses. The court respectfully disagrees. This case was hotly contested on every aspect except for plaintiff’s injury and past and future medical expenses. The jury had sufficient evidence to base its conclusions.

At trial, plaintiff presented evidence that plaintiff had never loaded a horse into a trailer with the exception of tying a horse’s rope to the trailer after the horse had already been loaded. Evidence was also presented that plaintiff was not properly trained or experienced enough to assist in such an activity. Plaintiff’s equestrian expert, Jill Cooke testified plaintiff should never have been allowed to assist loading the horse, given his young age. The jury also heard testimony from the plaintiff that he was asked to help off-duty trainer Shadaria Shuler and that she accepted his suggestion to use a stick from the ground as a switch to encourage the horse to step onto the trailer. Plaintiff further testified, that Ms. Shuler observed and coached his repeated use of the stick/swatch on the horse.

The defense rigorously denies plaintiff’s contentions. Defendants presented testimony from Ms. Shuler contradicting plaintiff’s testimony. Ms. Shuler testified plaintiff volunteered to help load the horse and that he admitted to her that he suddenly struck the horse out of frustration. N.T., September 18,2009, p. 61. Ms. Shuler also testified plaintiff was not standing where she instructed him to stand, and that had he heeded her instruction, he never would have been kicked. Id. at 71. The jury also heard testimony that plaintiff had experience handling horses and had previously observed horses being loaded and unloaded from trailers on several occasions. Additionally, defense equestrian expert, Ben Nolt, opined plaintiff was a quick learner with above-average experience for someone his age. NT, September 18,2009, p. 102.

Upon review of the trial evidence, the court finds the record was more than adequate to sustain the validity of the jury’s finding that plaintiff was 10 percent contributorily negligent in this case. It is for the jury to resolve the conflicting testimony presented in this case and the court cannot substitute its judgment for that of the jury. By no means does the jury’s verdict meet the standard of “shocking one’s sense of justice.” Moreover, this court does not find that the verdict was contrary to the evidence. Based upon the record presented, it would be an abuse of our discretion to set aside the jury’s findings and enter judgment n.o.v. in this case. Therefore, the court will not disturb the jury’s verdict. Accordingly, defendant’s motion for judgment n.o.v. is denied.

Defendant also requests that the verdict be remitted. Based on the above reasons, the court finds the verdict clearly did not shock the conscience of the court. Stoughton v. Kinzey, 299 Pa. Super. 499, 445 A.2d 1240 (1982); Daley v. John Wanamaker Inc., 317 Pa. Super. 348, 464 A.2d 355 (1983). Consequently, defendant’s request of remittitur is denied.

B. The Court Properly Permitted Plaintiff’s Expert, Jill Cooke, To Testify

Defendant argues a new trial should be granted because the court erred in allowing plaintiff’s equestrian expert, Jill Cooke, to testify. The court disagrees and finds that Ms. Cooke’s testimony, including her opinions, were admissible.

The competency of Ms. Cooke was questioned because defendant argues she lacks sufficient experience with children and because she was precluded from testifying as an equestrian expert in another matter. The standard for qualifying an expert is a liberal one, with discretion vested in the trial court. Gottfried v. American Can Com pany, 339 Pa. Super. 403, 411, 489 A.2d 222, 226 (1985). If scientific or technical information, beyond that possessed by a layperson, will assist the trier of fact an expert witness may testify so long as that expert is qualified as an expert by knowledge, skill, experience, training or education. Pa.R.E. 702 (2009).

Ms. Cooke is a certified riding instructor, certified equine appraiser, and a licensed thoroughbred racehorse trainer. She has maintained and run stables and is familiar with loading thoroughbred horses. Additionally, she testified she has taught children how to ride horses in the past. N.T., September 17, 2009, pp. 9-12.

Opposition to Ms. Cooke’s competency based on the matter in the state of Connecticut, Keeney v. Mystic Valley Hunt Club Inc., 93 Conn. App. 368, 889 A.2d, 829 (2005), where Ms. Cooke was presented as an expert, is inapplicable in this case. Ms. Cooke was precluded from testifying as an expert for the case because of her lack of expertise in a specific type of riding/horse training called “lunge lines.” In the present matter, Ms. Cooke’s testimony concerned equestrian standards for loading racehorses onto trailers. No part of her testimony involved testimony relating to the subject matter raised in the Keeney case. Therefore, defendant’s argument is without merit.

Defendant also objects to Ms. Cooke’s testimony that it was inappropriate to allow a minor to assist loading a racehorse onto a trailer. N.T., September 17, 2009, pp. 30-31. Defendant maintains Ms. Cooke is unqualified to opine on the instruction of children. The court disagrees with the defendant’s position. Such statements fall within the purview of Ms. Cooke’s expert knowledge as a licensed thoroughbred racehorse trainer and certified riding instructor familiar with loading thoroughbred horses onto trailers. The jury was free to disagree with Ms. Cooke’s assessment especially on cross-examination. Furthermore, Ms. Cooke presented testimony on whether a minor should have been involved in loading a thoroughbred racehorse onto a trailer; not whether the defendant or Ms. Shuler properly instructed the plaintiff before or during the incident. Therefore, the court finds it committed no error in allowing Ms. Cooke’s testimony. Accordingly, Ms. Cooke’s testimony is admissible. Defendant’s objection is denied.

C. Evidence Relating to the Disposition of the Offending Horse Was Properly Denied

Defendant argues a new trial should be granted because the court erroneously granted plaintiff’s motion in limine to preclude the testimony of Suzanne Ross-Armando, the purchaser of the horse following plaintiff’s accident. It was presented to the court in chambers that Ms. Ross-Armando purchased the horse after plaintiff’s accident and that her testimony concerned the nature and disposition of the horse during her ownership of it. This court granted plaintiff’s motion on the basis of relevance. However, defendant now asserts in its post-trial brief that it submitted to the court that Ms. Ross-Armando purchased the horse prior to plaintiff’s accident and that she would have presented her observations of the horse’s nature that she made prior to plaintiff’s accident. Defendant misstates the position it held in chambers during arguments on motion in limine. Additionally, the record belies defendant’s claim that Ms. Ross-Armando purchased the horse prior to the plaintiff’s accident. Defendant’s witness, Ms. Shuler, testified the horse was being loaded onto the trailer so it could be introduced to a potential buyer. N.T., September 18,2009, pp. 44-45. In any event, Ms. Ross-Armando’s testimony would have been extraneous. Defendant presented testimony from three witnesses as to the nature and disposition of the horse and had ample opportunity to challenge any adverse testimony on cross-examination. Both sides presented sufficient contradictory testimony as to the horse’s disposition. The probative value of Ms. Ross-Armando’s testimony would have been negligible at best. Therefore, the court finds its ruling was neither incorrect nor prejudicial. Accordingly, defendant’s objection is denied.

V. CONCLUSION

Upon review of the trial testimony, and plaintiff and defendant’s timely post-trial motions and supporting briefs, defendant’s post-trial motions requesting a new trial or in the alternative, remittitur, are denied. The court finds no basis to grant a new trial, or in the alternative, grant a remittitur. Judgment is entered in favor of plaintiff Pharoah Williams in the amount of $2,272,003.31 and in favor of plaintiff Callie Williams in the amount of $106,350.66 for a total verdict of $2,378,353.97.

ORDER

And now, March 19, 2010, upon consideration of the post-trial motions of defendant Work to Ride Inc., and plaintiffs’ response thereto, it is hereby ordered and decreed that said motions are denied. Judgment is entered in favor of plaintiff Pharoah Williams in the amount of $2,272,003.31 and in favor of plaintiff Callie Williams in the amount of $106,350.66 for a total verdict of $2,378,353.97. See attached opinion.


author: BERNSTEIN, J.,

text:
    Kolar v. Preferred Unlimited Inc.

      Richard S. Julie, for plaintiff.

      Matthew A. Taylor, James H. Steigerwald and Robert M. Palumbos, for defendants.
    July 18, 2010
   BERNSTEIN, J.,

By orders dated May 4 and May 10,2010, this court ruled upon 399 claims of privilege by defendant Preferred Unlimited based upon the attorney-client and work-product privileges. Three hundred thirty-nine claims of privilege were denied. Sixty claims of privilege were affirmed. Because the appropriate enforcement of the societal value incorporated into privilege represents protections of the essential values of our democracy and material once disclosed forever ceases to be confidential, this opinion explaining these rulings is issued.

Of the 339 claims of privilege this court denied, 322 claimed only the limited statutory attorney-client privilege.

Pennsylvania jurisprudence disfavors evidentiary privileges. As the Commonwealth Court succinctly said: “ ‘Exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth. ’ Thus, courts should accept testimonial privileges ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.’” It is because privileges are contrary to the search for truth in court that the party alleging privilege has the burden of demonstrating that privilege.

The attorney-client privilege in Pennsylvania is statutory. This statute, 42 Pa.C.S. §5928, reads: “In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” The limits of the statutory attorney-client privilege have been reaffirmed in clearly annunciated recent appellate decisions.

In contrast, the work-product privilege in Pennsylvania is not statutory. It is a product of common law adopted by the Supreme Court in our discovery rules. Pennsylvania Rule of Civil Procedure 4003.3 precludes discovery of “the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” The work-product privilege broadly protects most aspects of an attorney’s work in representing a client.

The work-product privilege, unlike the attorney-client privilege, is broad because “the underlying purpose of the work-product doctrine is to shield ‘the mental processes of an. attorney, providing a privileged area within which he can analyze and prepare his clients case.’” The work-product privilege enables attorneys to prepare cases without any risk that their own work will be used against their clients.

Article V, section 10 of the Constitution delegates to the Supreme Court the power to prescribe general rules of conduct in the practice of law and in court. This plenary authority includes the right to codify the work-product privilege in the discovery rules. The Supreme Court’s right to expand or contract the scope of the work-product privilege or indeed any Pennsylvania Rule of Civil Procedure or Rule of Evidence is unlimited. The Supreme Court purview in promulgating and interpreting their rules is as broad as their purview in determining the common law. The Supreme Court has the power to adopt the rule, to broaden or to narrow the scope of the rule, and interpret the work-product privilege on a case-by-case basis. The Supreme Court does not have the same plenary authority to rewrite or recast statutes such as the statutory attorney-client privilege.

The legislature, as a co-equal branch of government, has appropriated the right to determine the scope of evidentiary privileges such as the attorney-client privilege with the express approval of the Supreme Court. Pennsylvania privileges including the attorney-client privilege, the clergy-communicant privilege, and the marital privileges are all statutory. The Supreme Court has repeatedly and specifically affirmed the legislature’s authority to codify these privileges in derogation of the search for truth in court. Although the Supreme Court could have codified privileges in the Pennsylvania Rules of Evidence, they instead chose to adopt Pa.R.E. 501 which states: “privileges as they exist now or may be modified by law shall be unaffected by the adoption of these rules.” By abdicating the codification of privileges, the Supreme Court has deferred the value laden decisions as to what is privileged to the legislative process.

In Commonwealth v. Wilson, defendants charged with rape sought to subpoena records of the Delaware County Women Against Rape Crisis Center. The Supreme Court quashed this subpoena because it violated the sexual assault counselor statutory privilege. The Supreme Court deferred to legislative wisdom: “[T]he existence of a statutory privilege is an indication that the legislature acknowledges the significance of a particular interest and has chosen to protect that interest.” The scope of a privilege is a matter of statutory language. The discretion of courts in statutory construction is governed by specific long-standing statutory rules of interpretation.

A court’s authority to interpret a statute is strictly circumscribed by the Statutory Construction Act. As Supreme Court Justice Baer said: “the principles governing this court’s review when examining the language of a statute are settled.” The Statutory Construction Act states: “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly . . . When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”A statutory privilege must be applied in accord with its plain terms. If the “provision at issue specifically details the materials it encompasses[,] no construction is required to effectuate the restriction.”

Because the attorney-client privilege is statutory and in derogation of the search for truth in court, it must be strictly construed. The statutory attorney-client privilege by its clear language unambiguously protects only confidential communications from a client. The language of the statute makes no mention whatsoever of communications by an attorney to a client.

Because the attorney-client privilege is statutory and its interpretation is limited by the Statutory Construction Act, Superior Court Judge, now Supreme Court Justice McCaffery accurately analyzed the “confidential communications to attorney” statute in Nationwide Mutual Insurance Company v. Fleming.” Justice McCaffery’s opinion in Nationwide squarely addresses the scope and breadth of the attorney-client privilege. That opinion was joined by Superior Court Judge, now Supreme Court Justice Todd. In Nationwide, the Superior Court was asked to determine whether document 529, authored and sent by Nationwide Insurance Company’s general counsel, was protected by the attorney-client privilege. Recipients of document 529 included Nationwide executives and three other attorneys. The information conveyed in document 529 did not reveal any confidential information provided by any client. The claim of privilege was based only on the limited attorney-client privilege. No claim of privilege was brought under the significantly broader attorney work-product privilege. By clear statutory interpretation, the Superior Court concluded “the document is not protected by attorney-client privilege.”

Both Justice McCaffery and Justice Todd share a deep appreciation for the significance and sanctity of the attorney-client privilege. They begin their discussion with the understanding that “the attorney-client privilege has deep historical roots and indeed is the oldest of the privileges for confidential communications in common law .... It is designed to foster confidence between attorney and client, leading to a trusting open dialogue . . . The privilege derives from the recognition that full and frank communications between attorney and client is necessary for sound legal advocacy and advice, which serve the broader public interests of ‘observance of law and administration of justice.”

The Superior Court continued its analysis by correctly stating that the attorney-client privilege is strictly statutory: “In Pennsylvania, the attorney-client privilege is codified under the following statute: Confidential Communications to attorney. In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client. 42 Pa.C.S.5928.”

The Nationwide opinion analyzes the four distinct elements of the statutory attorney-client privilege. These elements are (1) the asserted holder of the privilege is or sought to become a client, (2) the person to whom the communication was made is a member of the bar of a court or his subordinate; (3) the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services, or assistance in a legal matter, and not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and is not waived by the client.

The only element of significance in Nationwide and the only element of significance in the issue before this court is element three, the substance of what is privileged. Affirming long-standing Pennsylvania precedent, the well reasoned Nationwide opinion focuses on the fact that only communications made by a client are confidential, and only communications which relate to facts can be confidential. Because of this accurate reading of a very limited statute, Justice McCaffery concluded that responses from an attorney and what an attorney says or writes are not protected by the attorney-client privilege except “to the extent that such communications contain and would thus reveal confidential communications from the client.” Now Justice McCaffery joined by now Justice Todd said: “under this privilege, protection is available only for confidential communications made by the client to counsel... [communications from counsel to a client may be protected under section 5928, but only to the extent that they reveal confidential communications previously made by the client to counsel for the purpose of obtaining legal advice.”

The Nationwide opinion further outlined the appropriate methodology for determining whether the attorney-client privilege precludes presentation of specific information or evidence. Justice McCaffery divided this methodology into two areas: whether the attorney-client privilege applies to a particular communication, and whether any exception or waiver has vitiated the privilege.

Nationwide is only the most recent, albeit most articulate, analysis of the limitations of the statutory attorney-client privilege. There is nothing new in the holding. In 2004, Judge Popovich wrote the opinion in Slusaw v. Hoffman. That opinion, joined by judge, now Justice, McCaffery and Judge Bowes held that neither a subpoena requiring information about an attorney’s activity as guardian ad litem nor an attorney’s invoices were protected by the attorney-client privilege since neither revealed confidential communications.

In 2003, In re Estate of Wood, Judge Beck, joined by Judge Stevens and Judge Olszewski found no attorney - client privilege protected testimony concerning what an expert had previously told an attorney. Judge Beck ruled that a physician’s comments and reports provided to an attorney are not protected by the attorney-client privilege saying: “[fjirst and foremost [the attorney-client privilege] is the rule that the privilege applies only to confidential communications made by the client to the attorney . . . .” The attorney client privilege “simply does not apply to such statements.”

Each of these cases respected the importance of the privilege and noted that the attorney-client privilege has been an essential part of our adversary system since the founding of the colony. Importantly, these opinions also recognize that having been codified, the privilege requires judicial restraint in interpretation because of respect for our co-equal branch of government and principles of statutory construction.

The reaffirmation of long-standing statutory analysis of attorney-client privilege in Nationwide was appealed to the Supreme Court. Neither Justice McCaffery nor Justice Todd participated in the Supreme Court decision. The Supreme Court affirmed Nationwide in a plurality opinion, on alternative grounds. The Supreme Court plurality opinion affirming the Superior Court was authored by Justice Eakin and joined by Justice Baer. Justice Saylor, joined by Chief Justice Castille, authored an opinion in support of reversal. An opinion of the Supreme Court which does not command a majority is not controlling law.

The Supreme Court plurality opinion ruled that even any arguable privilege had been waived because the defendant voluntarily disclosed documents on the same subject matter. Easily finding waiver, the Supreme Court did not reach statutory interpretation. The justices who were in that plurality specifically “decline[d] to address the merits.” Thus, the Superior Court opinion in Nationwide remains the latest appellate statement of Pennsylvania law on the limits of attorney-client privilege and must be followed in every common pleas case.

As early as 1944, the Supreme Court of Pennsylvania in Townsend Trust (No. 7) held: “a lower court has no right to ignore the latest decision of the Superior Court of this Commonwealth on an issue which has been squarely decided. Until that decision should be ovérruled by the Superior Court itself or overruled by the Supreme Court, it is still the law of this Commonwealth, regardless of the decisions of any other court in the country, including the federal courts.” In Marks v. Nationwide Insur ance Co., Judge Hester, joined by Judges Hudock and Musmanno, were confronted with a controlling Superior Court decision upon which a petition for allowance of appeal was pending before the Supreme Court. These Superior Court judges held that even the pending petition for allocatur is irrelevant: “[W]e have long held that as long as the decision has not been overturned by our Supreme Court, a decision by our [Superior] Court remains binding precedent.” This basic rule of jurisprudence holds whether the official Superior Court opinion is a panel or court en banc decision. In Commonwealth v. Spease, a judicial panel of Judge Tamilia, Judge Bender, and Judge Musmanno, applying Marks v. Nationwide Insurance Co. to itself reiterated: “panel opinions of this court are binding precedent and we must follow them until overruled by either this court sitting en banc or by a higher court.”

Of course any Superior Court decision may be overturned by the Supreme Court. However, a Superior Court statement of the law can only be overruled by a majority decision of the Supreme Court. A plurality decision does not overrule the holding below which remains precedential law across the Commonwealth. It is well-established that an opinion of the Supreme Court which does not command a majority is not controlling.

As correctly parsed and explained in Nationwide v. Fleming, the statutory attorney-client privilege in Pennsylvania is extremely limited. It covers only confidential factual communications from a client to her attorney. It is extended to communications from an attorney to a client only if, and only to the extent that, those communications from the attorney reveal the client’s confidential factual communications. This court ruled on 399 claims of privilege asserted by defendant Preferred Unlimited. Of the 339 claims of privilege which have been denied, 322 asserted only the attorney-client privilege. These claims were properly denied because the communications claimed as privileged did not reveal any confidential communications from the client to his attorney.

      . These claims were denied because the communications defendant claimed as privileged were not confidential communications from the client to his attorney. This court denied only 17 claims of privilege defendant brought under the broader attorney work-product privilege.

      . See Koken v. One Beacon Insurance Co., 911 A.2d 1021, 1026-1027 (Pa. Commw. 2006); quoting Commonwealth v. Stewart, 547 Pa. 277, 282-83, 690 A.2d 195, 197 (1997).

      . See T.M. v. Elwyn Inc., 950 A.2d 1050, 1063 (Pa. Super. 2008) (denying a claim of attorney-client and work product privilege since the defendant did not provide the trial court with any privilege log or explain its claim in any other way).

      . Nationwide Mutual Insurance Co. v. Fleming, 924 A.2d 1259 (Pa. Super. 2007); Nationwide Mutual Insurance Co. v. Fleming, 992 A.2d 65 (Pa. 2010) (affirmed on other grounds); Slusaw v. Hoffman, 861 A.2d 269, 273 (Pa. Super. 2004); In re Estate of Wood, 818 A.2d 568, 571 (Pa. Super. 2003).

      . Gocial v. Independence Blue Cross, 827 A.2d 1216, 1222 (Pa. Super. 2003), quoting Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 573, 393 A.2d 306, 310 (1978).

      . In re Estate of Wood, 818 A.2d 568 (Pa. Super. 2003).

      . Article V Section 10 of the Constitution of Pennsylvania provides the Supreme Court of Pennsylvania with the authority to promulgate Rules of Evidence.

      . 529 Pa. 268, 272, 602 A.2d 1290, 1292 (1992).

      . Commonwealth v. Wilson, 529 Pa. 268, 282, 602 A.2d 1290, 1298, (1992), cert. denied, 504 U.S. 977 (1992).

      . Kelly v. W.C.A.B. (U.S. Airways Group), 992 A.2d 845 (Pa. 2010); 1 Pa. C.S. §§1921-1927.

      . 1 Pa. C.S. § 1921 (a)-(b); see also, Kelly v. W.C.A.B. (U.S. Airways Group), 992 A. 2d 845 (Pa. 2010); Kramer v. W.C.A.B. (Rite Aid Corp.), 584 Pa. 309, 320-21, 883 A.2d 518, 525 (2005); Bowser v. Blom, 569 Pa. 609, 617, 807 A.2d 830, 835 (2002).

      . PennDOT v. Taylor, 576 Pa. 622, 633, 841 A.2d 108, 114 (2004).

      .924 A.2d 1259 (Pa. Super. 2007); Confidential communications to attorney, 42 Pa.C.S. §5928.

      . The opinion in Nationwide written by Judge, now Justice Mc-Caffery, was joined by Judge, now Justice Todd, and Judge Bender.

      . Nationwide, 924 A,2d 1259, 1262 (Pa. Super. 2007). (emphasis in original)

      . See Upjohn v. United States, 449 U.S. 383 (1981).

      . Nationwide, at 1264.

      . Id. at 1264. (emphasis in original)

      . Slusaw v. Hoffman, 861 A.2d 269 (Pa. Super. 2004); In re Estate of Wood, 818 A.2d 568 (Pa. Super. 2003).

      . Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1264 (Pa. Super. 2007).

      . Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1269 (Pa. Super. 2007). (emphasis in original)

      . The opinion stressed that only attorney-client privilege was implicated and the analysis only involved the statutory attorney-client privilege. The communications involved may have been protected by the attorney work-product privilege of Pa.R.C.P. 4003.3.

      . 861 A.2d 269 (Pa. Super. 2004).

      . The Shtsaw opinion cited In re Westinghouse Electric Corp. Uranium Contract, 16 F.R.D. 47 (D.C. Pa. 1977), and In re Tire Workers

        Asbestos Litigation, 125 F.R.D. 617 (ED. Pa. 1989), for these same principles. Both cases applied Pennsylvania law.

      . 818 A.2d 568 (Pa. Super. 2003).

      . Id. at 571.

        . Id. at 571.

      . Mt. Lebanon v. County Board of Elections of County of Allegheny, 470 Pa. 317, 322, 368 A.2d 648, 650 (1977).

      . Nationwide Mut. Ins. Co. v. Fleming, 992 A.2d 65, 70 (Pa. 2010).

      . Id., 992 A.2d at 70.

      . Townsend Trust (No 7), 349 Pa. 162, 168, 36 A.2d 438, 441, (1944).

      . 762 A.2d 1098 (Pa. Super. 2000).

      . Brown v. Candelora, 708 A.2d 104 (Pa. Super. 1998).

      . Marks v. Nationwide, 762 A.2d 1098, 1101 (Pa. Super. 2000).

      . 911 A.2d 952, 959 (Pa. Super. 2006).

      . 762 A.2d 1098 (Pa. Super. 2000).

      . See for example, Mt. Lebanon v. County Board of Elections of County of Allegheny, 470 Pa. 317, 368 A.2d 648 (1977).

      . Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1266 (Pa. Super. 2007).

      . Federal attorney-client privilege, unlike the limited statutory attorney-client privilege in Pennsylvania “protects two related, but different, communications: (1) confidential communications made by a client to his lawyer for the purpose of obtaining legal advice; and (2) any communication from an attorney to his client when made in the course of giving legal advice, whether or not that advice is based on privileged communications from the client.” United States of America v. Mobil Corp., 149 F.R.D. 533, 536 (NDTX 1993).


author: HODGE, J.,

text:
    Commonwealth v. Rhodes

      Diane M. Shaffer, assistant district attorney, for Commonwealth.

      Stanley T. Booker, for defendant.

      July 20, 2010
   HODGE, J.,

In the instant matter Ericka Rhodes, defendant, has filed a concise statement of errors complained of on appeal in accordance with Pa.R.A.R 1925(b) which alleges that the trial court committed the following errors: (1) the trial court erred as a matter of law in allowing the jury to determine the question of whether there was a lawful arrest of the defendant; (2) the trial court erred in allowing the Commonwealth to amend the charge of criminal mischief; (3) the trial court erred in allowing the Commonwealth to present an additional witness, Mr. Phil Fava; and (4) the trial court erred in sentencing the defendant pursuant to aggravated guidelines.

The facts of this case can be properly summarized by the following: On May 23,2009, the New Castle Police Department was directed by the Northwest Regional Police to assist in locating a red Dodge that was believed to be located in the vicinity of Court Street, New Castle, Pennsylvania. Officer Justin Houle spotted the red Dodge within that area and followed the vehicle until it pulled over at 709 Countyline Street. Officer Quahliero was also in the area; he arrived at 709 Countyline Street within moments.

Four passengers were seated in the Dodge, including the defendant, Ericka Rhodes, who was in the front passenger seat. Other individuals in the Dodge included a female driver, the defendant’s 14-year-old brother and the defendant’s infant, both positioned in the back seat. Before either officer had an opportunity to approach the vehicle, Defendant exited the Dodge and headed toward the police vehicles. Officer Houk instructed the defendant to get back into the Dodge; defendant physically complied, although she was verbally defiant throughout the process. Officer Quahliero spoke with two women in the front seat of the Dodge and then instructed the defendant to exit the vehicle; after Officer Quahliero identified her, he told the defendant to sit on a nearby curb.

While the defendant was seated on the curb, Officer Houle had to inform her several times to remain quiet. Shortly thereafter, Officer Quahliero instructed Officer Houle to place the defendant under arrest for charges that are not put before the court at this time. As Officer Houle moved toward the defendant to place her under arrest, the defendant began arguing and threw a wallet and cell phone at Officer Houle. Officer Houle was physically struck by these items. The defendant continued to fight with both of the officers to the degree that they had to take her to the ground so that an arrest could be effectuated. The defendant was then placed into custody and seated in the back of a New Castle patrol car. The defendant kicked out the window of the patrol car, shattering the glass and causing it to disperse over the area; she subsequently leaned out of the window and spit on Officer Quahliero. The defendant was later taken to the New Castle Police Department.

New Castle police charged the defendant with one count of assault by prisoner (18 Pa.C.S. §2703(A)), one count of resisting arrest (18 Pa.C.S. §5104), and one count of criminal mischief (18 Pa.C.S. §3304(A)(5)). The charges were later reduced by the district attorney to include only one count of resisting arrest (18 Pa.C.S. §5104), and one count of criminal mischief (18 Pa.C.S. §3304(A)(5)). The defendant was tried by a jury on March 18, 2010 and found guilty of resisting arrest and criminal mischief. Sentencing took place on April 29, 2010. Defendant subsequently filed a timely appeal.

Defendant first contends that this court erred in allowing a jury to determine whether or not the police made a lawful arrest on the afternoon of May 23, 2009. The court interprets defendant’s first error complained of to contend that there was insufficient evidence to allow a jury to make a determination of whether or not the defendant could be found guilty of resisting arrest. A review of the record indicates that this issue was not timely presented in pretrial motions nor was it presented in the course of the trial. As such defendant is precluded from asserting the issue on appeal. Pa.R.A.P. 302(a); See e.g., Commonwealth v. Harper, 292 Pa. Super. 192, 436 A.2d 1217(1981).

Defendant next suggests that the Commonwealth was improperly allowed to amend the charge of criminal mischief. A review of the record indicates that no such amendment was made, and defendant’s complaint is therefore without warrant. However, this court would like to take note of Pa.R.C.P. 109, which states that:

“A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules, unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court ease, and the defect is prejudicial to the rights of the defendant.”

If a defendant does not raise a defect at the summary trial or before the conclusion of the preliminary hearing, the defendant cannot thereafter raise the defect as grounds for dismissal or discharge at a later stage in the proceedings. See Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973).

The defendant further claims that the court erred in permitting Phil Fava to testify on behalf of the Commonwealth because the Commonwealth did not disclose his identity at any time prior to Mr. Fava being called to testify.

Pretrial discovery is governed by Pa.R.Crim.P. 573, which provides the court with the discretion to order the Commonwealth, upon motion by the defendant, to allow defense counsel to review items that are material to the preparation of a defense including the names and addresses of witnesses. Pa.R.Crim.P. 573 (D) states:

“(D) Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.”

This rule also establishes a remedy for any failure to timely provide discovery items in Pa.R.Crim.P. 573(E), which states:

“(E) Remedy. If at any time during the course of proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such order as it deems just under the circumstances.”

Pennsylvania courts have addressed similar circumstances regarding untimely disclosure of witnesses. It is apparent that a trial court has broad discretion over the appropriate sanction to remedy a violation of Pa.R.Crim.P. 573. Commonwealth v. Gordon, 364 Pa. Super. 521, 540, 528 A.2d 631, 641 (1987). In Gordon, the Commonwealth failed to disclose the existence of a police report in response to a pretrial request. The court ruled that the trial court properly granted a recess and permitted the appellant to review the report, which allowed the appellant to make favorable use of the same. Id. (citing: Commonwealth v. Grimm, 249 Pa. Super. 441, 378 A.2d 377 (1977); Commonwealth v. Rines, 247 Pa. Super. 429, 372 A.2d 901 (1977); Commonwealth v. Cooper, 240 Pa. Super. 477, 362 A.2d 1041 (1976)).

Furthermore, the trial court in Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995), properly permitted the testimony of the Commonwealth’s witness where the Commonwealth failed to disclose the witness’ identity prior to trial because the appellant failed to request a continuance, when the witness was called, to thoroughly cross-examine him. Conversley, in Commonwealth v. Crossley, 439 Pa. Super. 342, 653 A.2d 1288 (1995), the trial court abused its discretion by suppressing the testimony of a witness who was untimely disclosed by the Commonwealth where the exclusion of the testimony caused the Commonwealth to dismiss the charges against the defendant.

In the case at hand, the Commonwealth failed to provide the name of Mr. Fava, prior to taking the stand. Defense counsel objected to Mr. Fava testifying due to the untimely disclosure on the part of the Commonwealth. The defense counsel did not however, move for a recess or request the court to grant the defendant a continuance so that they could properly prepare to cross-examine Mr. Fava. As such the court allowed the Commonwealth to call Mr. Fava to testify. The circumstances in this case greatly parallel those put before the court in Crossely, supra, where the trial court was affirmed in its decision to allow the Commonwealth’s witness to testify.

As such, this court proceeded to make an inquiry as to whether any of the selected jurors knew Mr. Fava; one juror did inform the court that he did know Mr. Fava. (N.T. pp. 135-36.) The court did allow the trial to proceed based upon the well established rule that:

“The test for determining whether a prospective juror should be disqualified is whether he ... is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor .... It must be determined whether any biases or prejudices can be put aside on proper instruction of the court.... A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions .... The decision on whether to disqualify is within the ... discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion . . . .” Commonwealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985). (citations omitted)

The one juror who did inform the court that Mr. Fava was an old friend of his, further stated that they had not spoken to each other in years. (N.T. p. 136.) The court made a further inquiry as to whether this relationship would affect his ability to be a fair and impartial juror. The juror replied that it would not. As such, the court allowed the Commonwealth to proceed, and Mr. Fava testified. Id.

The court did not commit an abuse of discretion in allowing Mr. Fava to testify. The trial court, which observed the juror’s demeanor and evaluated his response, was in the best position to assess the credibility of his statement that he could remain fair and impartial. The court found the juror’s statements to be truthful and genuine; the court’s decision to allow Mr. Fava to testify was proper, any allegation to the contrary is unjustified.

Defendant’s remaining issue questions the legality of the sentence imposed by the court. Defendant contends that the court erroneously applied the sentencing guidelines when imposing her sentence.

Sentencing is a matter vested in the sound discretion of the trial court, and a sentence will not be disturbed absent an abuse of discretion. Commonwealth v. Eicher, 413 Pa. Super. 235, 605 A.2d 337 (1992). Pennsylvania’s Supreme Court has explained that sentencing guidelines serve as an “advisory guidepost” to provide a starting point from which to consider an appropriate sentence. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). However, such guidelines “create no presumption” and “do not predominate over other sentencing factors____” Id. at 570, 926 A.2d at 964-65. The sentencing guidelines, therefore, recommend, but do not require a particular sentence. Id.

A review of the record indicates that this court properly applied the sentencing guidelines and considered all appropriate factors which had some bearing on the defendant’s sentence. Specifically, the court considered the defendant’s lack of a prior record, her current employment and her dedication to raise her two young stepsons. These factors were balanced against several other aggravating factors: (1) that the defendant escalated a situation involving several police officers, which should have otherwise been concluded without incident; (2) her insistence upon challenging the direction of law enforcement officers in their attempt to resolve the situation which led to the charges against the defendant; and (3) the defendant’s intentional act of kicking out a rear window on a police cruiser.

The court, by evaluating these various factors, properly imposed the defendant’s sentence of one year probation, restitution in the amount of $517.67, and other standard costs of prosecution and probation for the charge of criminal mischief. The court further sentenced the defendant to two years probation with the first two months served under house arrest, for the charge of resisting arrest. The sentence imposed was well within the statutory guidelines, and the court’s implication thereof was appropriate.

ORDER

And now, July 20, 2010, an appeal having been filed in the above captioned ease by the defendant, Ericka Rhodes, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(a). The clerk of courts of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable rules of appellate procedure.

The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Stanley T. Booker, Esquire.