author: FEUDALE, J.,

text:
    Olszewski v. Sinclair Broadcast Group Inc.

      C.P. of Luzerne County,
    no. 259-C-1998.

      James Beasley, for plaintiff.

      Lee Ellis and David Wachen, for defendants.
    May 19, 2003
   FEUDALE, J.,

Before the court is defendants’ motion for summary judgment in a defamation case wherein both parties are public figures. The plaintiff, who is currently a common pleas judge, was at the time the district attorney of Luzerne County. Defendant, Frederick W. Vopper a/k/a Fred Williams, was a radio talk show host who engaged in what defendants characterized as “classic talk radio.” The defendant hosted the “Fred Williams Show” on Wilkes-Barre radio station WILK-AM. In preparation for his show the defendant allegedly read newspapers “voraciously,” then focused on the day’s hot-button issues, such as “local politicos and emerging scandals.”

The cause of action involves defendant’s “commentary” on the radio about the plaintiff’s alleged acts of omission or commission/abuse of prosecutorial discretion in the performance of his duties as district attorney. The plaintiff set forth in his complaint 24 different statements that he alleges were defamatory. Such reference plaintiff’s “prosecution” of a sexual predator (Rygiel), DUI homicide plea bargaining, a marijuana case involving a dentist (Weltman), spousal abuse (Coslett), embezzlement (Lefchak), and allegations about the district attorney’s alleged use/misuse of county-owned cell phones.

For example, defendant “commented,” inter alia, on such things as: (i) plaintiff’s alleged refusal to prosecute a spousal abuse claim against a friend who was an assistant district attorney for 15 years; (ii) that plaintiff allegedly engaged in “corrupt deal making” with a judge so sexual predators received a more lenient sentence, including work release; (iii) that plaintiff was engaging in “guilty” plea agreements where people who committed homicide by vehicle were only receiving weekends in jail or other special consideration; (iv) that plaintiff did not properly prosecute other defendants because of their political or social connections; and (v) that the district attorney allegedly failed to pay for private use of county-owned cell phones. All of the above, according to the defendant’s “commentary,” were acts by the district attorney of corruption, misfeasance and malfeasance.

STANDARD FOR SUMMARY JUDGMENT

Pursuant to Pennsylvania Rule of Civil Procedure 1035Í2 governing motions for summary judgment:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.
“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2 (2002).

Under Pennsylvania law, a court may grant a motion for summary judgment only when there exists no genuine issue as to any material fact, and where the moving party is entitled to judgment as a matter of law. Strain v. Ferroni, 405 Pa. Super. 349, 354, 592 A.2d 698, 701 (1991) (citing Vargo v. Hunt, 398 Pa. Super. 600, 601, 581 A.2d 625, 626 (1990)). However, a court will not grant summary judgment unless the case is clear and free from doubt. Lower Lake Dock Company v. Messinger Bearing Corp., 395 Pa. Super. 456, 461, 577 A.2d 631, 634 (1990).

Additionally, in reviewing the facts, pleadings and documentary evidence, the trial court must accept as true all well pleaded facts relevant to the issues in the non-moving party’s pleadings, and give to him the benefit of all reasonable inferences to be drawn therefrom. Peffer v. Penn 21 Associates, 406 Pa. Super. 460, 463, 594 A.2d 711, 712 (1991). Any doubt regarding the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Denlinger Inc. v. Dendler, 415 Pa. Super. 164, 608 A.2d 1061 (1992).

DEFAMATORY MEANING, MERE OPINION, RHETORICAL HYPERBOLE

Defendants’ arguments in support of summary judgment are twofold. They allege that 14 of the statements are not capable of defamatory meaning and/or that all 24 statements are merely opinion/rhetorical hyperbole.

According to defendants, the fundamental question is “whether statements about a prosecutor’s legal exercise of discretion in entering plea bargains (Rygiel, DUI cases, Weltman) or refrained from discretionary acts (Coslett, Lefchak) are capable of defamatory meaning.”

Defendants attempt to cast the “fundamental question” by utilizing the term “legal exercise” of prosecutorial discretion. However, a review of the context and content of what counsel for the defendants describe as Mr. Williams’ “spontaneous, provocative, hyperbolic give and take” on his radio talk show, reflects a clear jury question as to whether the defendant was engaging in what we would characterize as “reflective rumination” about the district attorney’s discretionary plea bargaining as compared to his “commentary” that District Attorney Olszewski was failing to prosecute politically/socially connected individuals or friends and/or was otherwise engaging in misfeasance and malfeasance in office. See Curran v. Philadelphia Newspapers Inc., 497 Pa. 163, 439 A.2d 652 (1981) and Sprague v. Walter, 357 Pa. Super. 570, 516 A.2d 706 (1980) wherein defamation actions were sustained where plaintiff was accused of failing to prosecute politically connected individuals and friends. See also, MacElree v. Philadelphia Newspapers Inc., 544 Pa. 117, 674 A.2d 1050 (1996) which held that an accusation of misconduct in office (allegedly acting in a racist manner in his official capacity as district attorney) is actionable.

In their argument, defendants seem to assert there is some sort of dichotomy if the commentary occurs in a “hard news” newspaper (in the above case articles printed in the Philadelphia Inquirer) as compared to the “commentary” assertions uttered over the radio.

Defendants’ arguments about the role/commentary of the radio talk show host seemed to suggest that Mr. Williams’ commentary does not really matter i.e., should be taken with a “grain of salt” because no one is really listening anyway or in the alternative that the content should be ameliorated in consideration of the nature of the audience hearing the remarks.”

We are unaware whether defendants are suggesting we adopt some sort of belief in the superior wisdom of the ignorant; whether talk show host or listener. However, the suggestion the public utterances/commentary of a talk show host should be taken with a “grain of salt” is too close to gossip, and we are of the opinion that gossip is arguably often a personal confession of either malice, ignorance, or lack of concern about the facts.

In any event there is no case law that supports defendants’ contentions and we find there are genuine issues as to the material facts and defendants are not entitled to judgment as a matter of law on the issues of defamatory meaning, mere opinion, or rhetorical hyperbole.

STATUTE OF LIMITATIONS

Defendants next argue that statements 3, 4, 12, 14, 16,17 and 18 should be dismissed as untimely. On January 14,1998, plaintiff filed this suit against certain on-air commentary by Mr. Williams about plaintiff’s performance in office, The complaint sought damages for 15 statements by Mr. Williams on six radio shows in 1997. Defendants timely filed an answer and new matter in which they asserted that the statements were not actionable.

Throughout the complaint, the plaintiff alleged that the defendants broadcast defamatory statements concerning him both on certain dates “and other occasions.” Additionally, he attached transcripts of certain radio shows to the complaint and also alleged that “additional broadcasts will be supplied as transcribed.”

On August 28, 1998, the plaintiff moved for leave to amend his complaint to amplify his allegations regarding the “other occasions” and “additional broadcasts” on which the defendant had defamed him. Plaintiff argued that amendments which merely amplify allegations already set forth in the complaint relate back to the day on which the complaint was filed and are timely. Connor v. Allegheny General Hospital, 501 Pa. 306, 310-11, 461 A.2d 600, 602 (1983).

On September 24, 1998, defense counsel wrote a letter to President Judge Augello specifically advising him that defendants did not object to the amendments which provided:

“Defendants have now had the opportunity to review and consider Mr. Olszewski’s motion for leave to file his proposed amended complaint, and have decided not to oppose it.”

It is plaintiff’s position that this was an implicit admission the amendments were timely and proper, and a waiver of any right to later argue otherwise.

By order and opinion dated October 2, 1998, Judge Augello granted the plaintiff’s unopposed motion for leave to file his amended complaint. The president judge’s opinion and order provided in relevant part:

“Augello, P.J., October 2, 1998:
“I. History and Nature of proceeding:
“On January 14, 1998, the plaintiff, Peter Paul Olszewski Jr., filed by complaint a defamation action against the defendants arising from alleged statements made by the defendant, Frederick W. Vopper a/k/a Fred Williams, (Vopper) during radio programs broadcast by the defendants. This matter is before the court on a variety of procedural issues.
“On March 9, 1998, the defendants filed an answer with new matter. On March 27,1998, the plaintiff filed a reply to new matter. On March 30, 1998, the plaintiff filed a ‘motion to strike defendants improper answers,’ to which the defendants filed an answer on April 21,1998. On August 28,1998 the plaintiff filed a ‘motion for leave to file an amended complaint’....
“II. AMENDED COMPLAINT
“It is well established in this Commonwealth that the right to amend a complaint must be liberally granted. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600, 602 (1983). This is especially so where, as here, the proposed amendment merely amplifies that which has already been averred. Connor, supra. In the present case, the plaintiff filed his complaint in January of this year. The plaintiff alleged throughout the complaint that the defendants broadcast defamatory statements about him both on certain dates ‘and other occasions.’ Paragraphs 13, 15, 17, 18, 19, 21, 23 and 25 of the complaint and exhibit ‘A’. By the same token, the plaintiff attached transcripts of certain segments of the show to the complaint and also alleged that ‘additional broadcasts will be supplied as transcribed.’ Complaint, paragraph 12. The plaintiff now wishes to amend his complaint to more specifically identify the ‘other occasions’ on which the defendants allegedly defamed him. This proposed amendment does not change the original cause of action. Rather, as in Connor it merely amplifies allegations already set forth in the complaint. Therefore, the amendment would not result in any prejudice to the defendants and must be granted. Connor.”

The court then granted the defendants’ motion for leave to file the amended complaint and indicated that plaintiff shall file the amended complaint within 20 days of the date of the order which was dated October 2, 1998. On October 7, 1998, plaintiff filed the amended complaint, which raised the number of statements from 15 to 24 from radio programs on 14 dates in 1997.

Of the nine statements added, seven were alleged to have been made more than a year before the filing of the amended complaint.

Under Pennsylvania law, a claim for defamation must be brought within one year of publication or broadcast. See 42 Pa.C.S. subsection 5523(1). Also, each broadcast is considered a separate “publication” and new cause of action for purposes of plaintiff’s defamation claim and the one-year statute of limitations. See Graham v. Today’s Spirit, 503 Pa. 52, 57, 468 A.2d 454, 457-58 (1983). Thus, the one-year statute of limitations for defamation begins to run as to each cause of action (i. e., each statement) on the date the statement was made.

Clearly, seven statements were made more than a year before plaintiff first identified them in this action. Also, plaintiff does not dispute that each broadcast making up his defamation claim is considered a separate “publication” and a new cause of action for purposes of the one-year statute of limitation. Instead, plaintiff argues that: (i) defendant waived the issue and/or implicitly consented to these untimely claims; (ii) the court previously addressed the issue; and (iii) these untimely broadcasts relate back to allegations in the complaint.

Plaintiff argues that because defendants did not oppose his motion for leave to amend his complaint, they somehow waived the right to challenge the timelines of seven broadcasts added through the amendment. No persuasive legal authority was offered for this proposition.

Rule 1030 of the Rules of Civil Procedure provides that “all affirmative defenses including . . . statute of limitations ... shall be pleaded in a responsive pleading under the heading ‘new matter’ . . . .” Defendants’ answers to both the complaint and amended complaint alleged under the heading “new matter” that plaintiff’s claims are barred in part by this statute of limitations.

Rule 1032 states, “a party waives all defenses and objections which are not presented either by preliminary objection, answer or reply.” (emphasis added) The Superior Court has recognized that the preferred manner of asserting a statute of limitations defense is by answer and new matter pursuant to Pa.R.C.P. 1030. Ranker v. Skyline Corp., 342 Pa. Super. 510, 513, 493 A.2d 706, 707 (1985). Thus, not only did defendants not waive the limitations defense, they asserted it in the preferred manner.

Plaintiff next contends that in granting leave to amend his complaint, Judge Augello held that the seven statements were timely. In our view, no such thing ever happened and Judge Augello made no specific determination as to timeliness or otherwise addressed the issue of the statute of limitations. Simply stated, the issue was never raised by defendants, who did not oppose the mere granting of leave, but preserved their affirmative defenses, including the statute of limitations, for disposition at a later time, by asserting them in their answer. As a result, all Judge Augello had before him was plaintiff’s request for leave to amend. As plaintiff points out, courts of this commonwealth “liberally grant the right to amend pleadings.” This is done without regard to the merits of a proposed amendment, particularly when the other side does not oppose the mere act of amending.

Faced with plaintiff’s unopposed motion for leave relatively early in this litigation (especially in hindsight) and given the liberal policy towards granting leave, Judge Augello needed only to grant plaintiff’s request.

In our view, President Judge Augello’s dictum has no impact on this court’s ability to address the limitations issue now. See Pierro v. Pierro, 434 Pa. 131, 132, 252 A.2d 652, 653 (1969) (“what the [trial] court had to say in its opinion regarding the sufficiency of the pleadings is dicta and does not establish the law of the case”); Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71, 81-82, 675 A.2d 314, 319 (1996) (holding earlier panel’s unnecessary analysis was dicta and not binding on later panel); Courtney v. Ryan Homes, 345 Pa. Super. 109, 119, 497 A.2d 938, 942-43 (1985) (holding “trial court’s dictum ... does not establish the law of the case”).

Next, plaintiff asserted that the seven untimely statements from broadcasts never mentioned in the complaint somehow relate back to the complaint’s vague, “catch-all” allegations that defendants had defamed him “on other occasions.” In support of plaintiff’s sweeping view, which if valid would presumably allow him to add even more statements now (more than five years after initiating this action), plaintiff cites Connor for the proposition that “amendments which merely amplify allegations already set forth in the complaint relate back to the date” of the complaint.

In Reynolds v. Thomas Jefferson University Hospital, the Superior Court squarely rejected plaintiff’s argument, noting that “in Connor, the negligence alleged in the original complaint and the negligence alleged in the amended complaint were part of a causally related chain of events which occurred on the same day . . . and at the same place.” 450 Pa. Super. 327, 342, 676 A.2d 1205, 1212 (1996). The broadcast containing these seven untimely statements occurred on different dates than the broadcast identified in the complaint, and cannot be said to have involved a “causally related chain of events.” In our view, nothing in Connor changes the well established principle of forbidding the use of amended pleadings to add untimely causes of action.

Finally, a new defamation cause of action (i.e., a new statement) raised in an amended complaint filed more than one year after the statement was broadcast is untimely, regardless of whether the statement would have been timely if alleged in the original complaint. See Livingston v. Murray, 417 Pa. Super. 202, 206-207, 612 A.2d 443, 445 (1992). The Livingston case is precisely on point. In Livingston a former athletic director at Duquesne University challenged newspaper articles from the Pittsburgh Post-Gazette and Pittsburgh Press regarding her departure from the school. In March 1991, the plaintiff sought to amend her complaint to also challenge a Pittsburgh Press article on the same subject from October 1989. Had the challenge to the October 1989 article been included in the original complaint from April 1990 (i.e., within one year of publication) it would have been timely. The court found it was untimely as a matter of law, however, for the plaintiff to try to add the article to her lawsuit through an amended complaint more than a year after the October 1989 publication.

Accordingly, we shall dismiss statements 3,4,12,14, 16, 17 and 18.

Finally, defendants claim statement 8 must also be dismissed because it was never said during any broadcast. In their amended complaint, plaintiff alleges that on November 19, 1997, Mr. Williams said that “Peter Paul Olszewski guided Harold and Mary Beth Weltman through the legal system and got them virtually free of serious jail time.” (Statement 8.) Nowhere in the transcript of the November 19 broadcast do these words appear. Moreover, plaintiff now admits Mr. Williams did not make this statement during his November 19 broadcast or any other broadcast identified in the amended complaint. As it is now uncontroverted that Mr. Williams did not say statement 8 as alleged in the amended complaint, plaintiff’s claim as to statement 8 fails as a matter of law. We therefore enter the following:

ORDER

And now, May 19,2003, defendants’ motions for summary judgment based on their assertions that the statements are non-actionable expressions of opinion, rhetorical hyperbole, or are not capable of defamatory meaning are hereby denied. Defendants’ motion for summary judgment as to statements 3, 4, 12, 14, 16, 17 and 18 based on their assertions that they are time-barred is hereby granted. Defendants’ motion for summary judgment based on statement 8 never being said during any of the broadcasts at issue in this action is also granted.

      . “By contrast, statements 15 through 18 were spoken during an opinion-oriented talk radio program from which listeners expected spontaneous, provocative, hyperbolic give and take, and took what was said with at least ‘a grain of salt.’ ” Page 14 para. 2 of defendants’ reply memorandum in support of motion for summary.

      . We would note the amended complaint, as filed, differed from the proposed amended complaint attached to the motion for leave to file an amended complaint arguably the only one approved for filing by the court, by adding a statement from the May 15, 1997 broadcast to paragraph 13 of the amended complaint.

      . Under Rule 1033, plaintiff could have sought to amend “by filed consent” without even requesting leave of court. Thus, to the extent Judge Augello included comments about plaintiff’s amendment and his comment that the amendment “merely amplifies allegations already set forth in the complaint” such comments can only be fairly viewed as obiter dictum. See Black’s Law Dictionary 967 (5th ed. 1979) (defining as “words of an opinion entirely unnecessary for the decision of the case”).

      . Moreover, since the “decision” plaintiff ascribes to Judge Augello would have been clearly erroneous and would not be binding under the law of the case doctrine. Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995).

      . We note plaintiffs “labored mightily” in presenting an eight-page reply brief on the day of argument, as well as sending the court an additional five-page letter to, as they described it, more fully address our question to plaintiff’s counsel at argument whether it made a difference whether defendants filed an answer with new matter raising the statute of limitations after Judge Augello’s ruling. In referring to said procedure as “extraordinary” and one with which they are not familiar, defendants asked the court to not consider the late filed arguments. We recall the old adage that when you have the law on your side, argue the law, when the facts favor you, argue the facts, and if you have neither, pound on the table. We construe counsel’s response, although inappropriate, a last attempt to state their case in an area that was of obvious concern. Another adage which we can’t attribute, is that the law is what is forcibly argued and plausibly maintained. Certainly, plaintiff has been forcible in their assertions, but based on our reviews such are not plausible.


source: Caselaw Access Project

author: WALLACH MILLER, J.,

license: Public Domain

text:
    Widdoss v. Huffman

      C.P. of Monroe County,
    no. 7340 Civil 2002.

      John Philip Diefenderfer, for plaintiff.

      James M. Howley, for defendant Huffman.

      C. Tyler Havey, for defendant Vivendi Universal.

      Thomas J. Kelly, for defendant Foxmoor Cinema.

      Anthony J. Piazza, for defendant Loews Corporation.
    June 10, 2003
   WALLACH MILLER, J.,

On January 23, 2001, at about 11:30 p.m., plaintiff, Robert Widdoss Jr., was driving north in the northbound lane of Route 447 in Stroud Township, Monroe County when he was hit head-on by a southbound Honda Civic driven by Dale Lockard. The Honda Civic was owned by Steve Ayers, who was a passenger in the car at the time. Both Ayers and Lockard were killed as a result of the crash. Plaintiff suffered serious injuries in this accident.

Plaintiff alleges that Ayers and Lockard were racing with defendant Daniel Huffman at the time.

Prior to and on the day of the accident, a movie, “The Fast and the Furious,” was shown in Monroe County. The plaintiff alleges that Ayers, Lockard, and Huffman saw this movie at either Foxmoor Cinema or Loews Cineplex. The complaint further alleges that all or some of a group of young men, including Ayers, Lockard, and Huffman, were racing their cars to imitate the movie.

In Count II of his amended complaint, the plaintiff alleges the following against defendants Vivendi Universal, Foxmoor Cinemas Inc., and Loews Cineplex Entertainment Corporation Inc. (corporate defendants):

“(21) The defendants, Huffman, Lockard and Ayers, in violation of Pennsylvania Statute 75 Pa.C.S. §3367 [b], without a permit to do so, engaged in an automobile race on Pa. Route 447, in Stroud Township, and committed the crime[s] of involuntary manslaughter, and homicide [2] by vehicle, [the deaths of Lockard and Ayers], in violation of 75 Pa.C.S. §3732, and §3736, by wanton and willful reckless driving, misdemeanors of the first degree.
“(22) The defendant Universal and the defendant theaters therefore are by statute an accomplice to the aforesaid criminal conduct of Lockard, Ayers and Huffman, in violation of 18 Pa.C.S. §306, being Act of Assembly 1972 December 6, P.L. 1482 no. 334 section 1.”

The corporate defendants have filed preliminary objections in the nature of a demurrer to plaintiff’s amended complaint. We heard oral argument on May 5,2003, and after a review of the parties’ briefs, we are ready to dispose of the matter.

When considering preliminary objections in the nature of a demurrer, the court must accept as true all of the well-pleaded material facts in the complaint and all of the reasonable inferences which may be derived therefrom. Webb Manufacturing Co. v. Sinoff, 449 Pa. Super. 534, 674 A.2d 723 (1996). Preliminary objections in the nature of a demurrer should only be sustained when it is certain that the law permits no recovery under the aliegations pleaded. Green v. Mizner, 692 A.2d 169 (Pa. Super. 1997). A complaint which consists of argumentative conclusions as opposed to properly pleaded statements of fact cannot withstand a demurrer for failure to set forth an action of claim. Division 85 of Amalgamated Transit Union v. Port Authority, 71 Pa. Commw. 600, 455 A.2d 1265 (1983).

In reading the plaintiff’s amended complaint, his theory in Count II against the corporate defendants appears to be that they produced, distributed, and exhibited a movie directed to impressionable young males who upon watching it would go out and commit criminal conduct, i.e., street racing. That defendant Huffman along with Ayers, Lockard, and others saw the movie at one of the two defendant theaters and sometime after viewing the movie, raced their cars causing the accident. The theory of Count II of the complaint, while not clear, appears to be based on negligence of the corporate defendants for producing, distributing and exhibiting this film and in doing so they became criminal aiders and abetters to the alleged criminal conduct of Lockard, Ayers and Huffman. Specifically, Count II alleges that the corporate defendants produced, distributed, and showed “The Fast and the Furious” so that its content would incite viewers to commit violence in imitation of the violence in the film.

The corporate defendants argue that the amended complaint is legally insufficient and that the contents of the film are protected by the First Amendment of the United States Constitution. During oral argument, in response to a question from the court, plaintiff’s counsel told us that his amended complaint is attempting to advance a claim under the free speech exception set out in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

Thus, the issues before the court are the interplay between the allegations of negligence and the guarantees of free speech under our constitution. We could not find any Pennsylvania cases surrounding negligent production, distribution, or exhibition of a movie. We did, however, find guidance in other jurisdictions. See Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067 (Mass. 1989); Bell v. Superior Court, 187 Cal. Rptr. 625 (Cal. 1982); Zamora v. CBS, 480 F. Supp. 199 (S.D.Fla. 1979); Olivia N. v. NBC, 178 Cal. Rptr. 888 (Cal. 1982); Byers v. Edmonson, 826 So.2d 551 (La. App. 2002).

There can be negligence only where there is a duty to be careful, Ney v. Axelrod, 723 A.2d 719 (Pa. Super. 1999), and whether a duty exists under a particular set of facts is a question of law. In determining whether the law ought to provide that a duty of care is owed by one person to another, we look to existing social values and customs, and to appropriate social policy. Campo v. St. Luke’s Hospital, 755 A.2d 20 (Pa. Super. 2000). A basic principle of negligence law is that ordinarily everyone has a duty to refrain from affirmative acts that unreasonably expose others to a risk of harm. Thus, Pennsylvania has held that a keeper of a tavern owes to travelers on the highway a duty of care with respect to the furnishing of alcoholic beverages to its customers. Fink v. Garman, 40 Pa. 95 (1861). And a proprietor of a supermarket owes a duty of care to its customers with respect to leaving a substance on the floor that may cause its patrons to slip and be injured. Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 422 A.2d 593 (1980). In keeping with that principle, we can find that the corporate defendants owed a duty of reasonable care to members of the public, including the plaintiff, with respect to the producing, distributing, and exhibiting of this movie.

The next question is whether there is a properly pled fact with respect to whether that duty was violated. In reference to Count II of plaintiff’s amended complaint alleging negligence in the production, distribution, and exhibiting of “The Fast and the Furious,” we conclude that as a matter of law there is not. This conclusion follows from the First Amendment to the United States Constitution that motion pictures are a significant medium for the communication of ideas. Joseph Burstyn Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). They are protected by the First Amendment just like other forms of expression. Id. at 502, 72 S.Ct. at 780. It is immaterial for First Amendment purposes whether speech is suppressed under the criminal law or by “penalties” imposed by tort law. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 686 (1964). Although freedom of speech is not absolute, and Lability may exist for tortious conduct in the form of speech, the recognized exceptions to First Amendment protection are narrowly defined and do not reach “The Fast and the Furious.” We conclude that the defendants could not properly be found to have violated their duty of reasonable care by exercising protected rights of free speech.

The plaintiff contends that “The Fast and the Furious” falls within the incitement exception to First Amendment protection. This exception applies to speech which advocates “the use of force or of law violation . . . where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, supra. But speech does not lose its First Amendment protection merely because it has “a tendency to lead to violence.” Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973).

In his complaint and amended complaint, plaintiff does not provide as with any information that the film urges, solicits, or overtly advocates unlawful or violent activity on the part of the viewers. He merely makes conclusory statements that this is so. He does not point us to any specific parts of the movie, either action or dialogue, that purport to order or command anyone to any concrete action at any specific time, much less immediately. See McCullum v. CVS Inc., 202 Cal. App. 3d 989, 249 Cal. Rptr. 187 (1988). Therefore, we find that the plaintiff has not alleged any facts that the corporate defendants breached a duty in producing, distributing, and exhibiting “The Fast and the Furious,” because such expression is protected by the First Amendment.

The plaintiff has failed to specifically plead a cause of action, both in his complaint and in his amended complaint. Therefore, the defendants’ demurrers are sustained and we enter the following order.

ORDER

And now, June 10, 2003, the preliminary objections of defendants Vivendi Universal, a/k/a Universal Studios Vivendi Universal, a/k/a Universal Studios, Foxmoor Cinemas Inc. and Loews Cineplex Entertainment Corporation Inc. are sustained and the amended complaint is dismissed as against those defendants with prejudice.

      . The plaintiff does not allege that any criminal charges were filed against defendant Huffman, and our criminal court dockets do not list him as a defendant in any criminal matter.


author: WALLITSCH, J.,

text:
    Levan v. City of Allentown

      C.P. of Lehigh County,
    no. 2001-C-1732.

      Robert G. Bauer, for plaintiffs.

      Maryann E. Higgins, for defendant City of Allentown.

      David P. Karamessinis, for additional defendant County of Lehigh.
    May 16, 2003
   WALLITSCH, J.,

Before this court is the City of Allentown’s motion for summary judgment. For the following reasons we grant the city’s motion for summary judgment.

On March 14, 2000, plaintiff Gloria Levan was walking on Hamilton Street between Fifth and Law Streets in Allentown, Pennsylvania, when she tripped and fell over a raised portion of a grate which surrounded a tree planted in the street’s sidewalk located on property owned by the County of Lehigh. As a result of the fall, Mrs. Levan sustained a severe left distal radius fracture that required pinning and external fixation. She also required three additional surgeries due to related complications. Plaintiffs allege that at some point prior to the fall, there was a car accident dislodging the tree and raising the grate from the concrete sidewalk. Plaintiffs also allege that after the grate became raised, the city placed warning tape around the grate, but removed the tape prior to Mrs. Levan’s fall.

Plaintiffs initiated suit against the city arguing that, under the trees or real property exceptions to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§8541-8564, the city’s negligent act of failing to repair the grate permits the plaintiffs to recover against the city. The city in turn joined the county of Lehigh arguing that it was the county’s duty to maintain and repair the grate since it was located on their property.

The Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S. §§8541-8564, states that no local agency shall be liable for any damages on account of any injury to a person caused by any act of the local agency or an employee thereof or any other person. 42 Pa.C.S. §8541; Gardner v. Consolidated Rail Corporations, 524 Pa. 445, 573 A.2d 1016 (1990). However, certain acts by a local agency or any of its employees may result in the imposition of liability upon a local agency. 42 Pa.C.S. §8542(b); Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994). These pertinent acts, or exceptions to the Act, that potentially allow liability against a local government agency can be found in 42 Pa.C.S. §8542(b)(1) through (8). Plaintiffs argue that either the trees or real property exceptions apply imposing liability upon the city for failing to repair the grate. 42 Pa.C.S. §8542(b)(4) states that:

“(4) Trees, traffic controls and street lighting — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems under the care, custody and control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.”

The trees exception cannot apply since Mrs. Levan’s fall did not result from a dangerous condition of the tree. The movement of the tree from the accident may have raised the grate but that is not what the exception, which must be strictly construed, is meant to encompass. Because of the clear intent to insulate government from exposure to tort liability for any of its acts, exceptions carved out by the legislature from this general rule are strictly construed. Kiley, 537 Pa. at 506, 645 A.2d at 185; Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988); Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989).

Alternatively, plaintiffs argue that the real property exception applies. Specifically, plaintiffs argue that the grate is real property under the “care, custody and control” of the city. 42 Pa.C.S. §8542(b)(3) states:

“(3) Real property — the care, custody and control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, ‘real property’ shall not include: (i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems; (ii) facilities of stream, sewer, water, gas, and electric systems owned by the local agency and located within rights-of-way; (iii) streets; or (iv) sidewalks.”

Plaintiffs argue that the grate was under the city’s control when it allegedly put up and removed the tape from around the grate. We disagree. The county, not the city, owns the property on which the grate is located. The affidavit of Russell S. McKenzie Jr., who is employed by the City of Allentown as risk manager, states that the grate is part of an area owned by the County of Lehigh. Additionally, the city’s request for admissions, which was admitted by this court on August 14, 2002, states that the county owns the property upon which Mrs. Levan had tripped, had handled all repairs and maintenance prior to the incident in question and repaired the grate after Mrs. Levan’s fall. The application of tape to the grate did not change who possessed the area. Since the county “possessed” the grate, the real property exception cannot apply to the city.

The city argues that the sidewalk exception to the Political Subdivision Tort Claims Act applies. We agree. 42 Pa.C.S. §8542(b)(7) states:

“(7) Sidewalks — a dangerous condition of sidewalks within the rights-of-ways of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. When a local agency is liable for damages under this paragraph by reason of its power and authority to require installation and repair of sidewalks under the care, custody and control of other persons, the local agency shall be secondarily liable only and other persons shall be primarily liable.”

A sidewalk is defined as “a walk for foot passengers usually at the side of a street or roadway.” Webster’s Third New International Dictionary 2113 (1986). The sidewalk exception applies since the grate is part of the sidewalk. Even though the grate’s primary purpose is to allow water to pass into the ground, it is also flush with the sidewalk in order to allow pedestrians to traverse across the base of the tree without tripping over the tree’s roots. Under the sidewalk exception, the county, as the owner of the property is primarily liable and the city would be secondarily liable. Burns v. Crossman, 740 A.2d 773 (Pa. Commw. 1999). Since the plaintiffs settled with the primarily liable party, the secondarily liable party is discharged from any liability. Mamalis v. Atlas Van Lines, 522 Pa. 214, 560 A.2d 1380 (1989).

Plaintiffs argue that, regardless of the Act, the city assumed a duty that they ordinarily did not have since, after the fall, it allegedly put tape around the grate and then negligently had it removed. Plaintiffs claim that the Restatement (Second) of Torts §324A (1963) supports this position. It states:

“One who undertakes, gratuitously for consideration, to render services to another which he should recognize as necessary for the protection of a third person of his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonably [sic] care to protect his undertakings, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or third person upon the undertaking.”

The alleged application and removal of the tape or warning device did not give rise to a duty on behalf of the city to repair the grate under section 324A. For a duty to be imposed upon a local agency the agency must have fully performed the duty. Voren v. Bell Telephone Company of Pennsylvania, 150 Pa. Commw. 507, 616 A.2d 66 (1992). In this case, in order for the city to have assumed a duty in regards to the repair of the grate it would have to have completely repaired the grate. However, the city never undertook the duty to repair the grate since it only cordoned off the area with tape. Even if the city had decided to undertake a duty to repair the grate the taping of the area could only be considered a preliminary step. Until the grate was completely repaired it would not have given rise to a duty under 324A. The court in Voren held that Uwchland Township was not liable since the appellants were unable to show that the township undertook a duty under 324A. All that the township did was apply for a permit and the court held that the mere application for a permit to clear away obscuring bushes from a roadway is considered a preliminary step toward performance and does not give rise to a duty. Since the plaintiffs have not shown how the city undertook a duty to repair the grate, the city, under the Political Subdivision Tort Claims Act, cannot be liable. Absent a legal duty owed to the injured party, no recovery can he against a local government agency. Since the plaintiffs have been unable to establish that the city undertook a duty, the Political Subdivision Tort Claims Act precludes liability.

ORDER

And now, May 16, 2003, upon consideration of defendant City of Allentown’s motion for summary judgment, after argument thereon, and for the reasons set forth in the accompanying memorandum opinion, said motion is granted and judgment is entered in favor of the City of Allentown against Gloria and Robert Levan.


author: QUIÑONES ALEJANDRO, J.,

text:
    Morton v. PennDOT

      Robert Howard Nemeroff, for plaintiff.

      Janet Selden, for defendant.
    April 4, 2003
   QUIÑONES ALEJANDRO, J.,

OPINION

INTRODUCTION

Commonwealth of Pennsylvania, Department of Transportation (defendant PennDOT) argues on appeal that this trial judge erred in denying its motion for post-trial relief. This trial judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

On December 19, 2002, the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), Southeastern Transportation Authority (SEPTA) and the City of Philadelphia (collectively, defendants) settled the underlying case with Alfred Morton (plaintiff) and requested the court’s intervention to determine and apportion liability among defendants with regard to the payment of the settlement amount. On December 30, 2002, a non-jury trial before this trial judge was held on the following stipulated facts and legal argument:

“On June 27, 2000, at approximately 1 a.m., plaintiff was walking along a traffic island located between Broad Street and Old York Road, just south of Olney Avenue, in Philadelphia, Pennsylvania, when he tripped over an alleged defect on the traffic island and fell.
“On June 22,2001, plaintiff filed a civil action against defendants PennDOT, SEPTA, and the City of Philadelphia. Discovery on this matter concentrated on determining who owns, controls, and/or maintains the traffic island, accident situs where plaintiff fell. This particular traffic island is a long, narrow, raised concrete island that separates traffic on Broad Street from traffic on Old York Road, at a point where the two streets merge in almost a parallel or side-by-side fashion.
“It is undisputed that Broad Street was adopted as a state highway pursuant to the State Highway Act 615, September 18,1961, Legislative Route No. 67312, State Route 611 (1961 Highway Act). All state highways are under the jurisdiction of defendant PennDOT. It is further undisputed that the west curb of the traffic island is adjacent to Broad Street, and that the east curb line of the traffic island is adjacent to Old York Road, a public highway under the jurisdiction of defendant City.
“The parties agree that in 1973, defendant PennDOT constructed the traffic island as part of a Federal Aid Project called Traffic Operations Program to Increase Capacity and Safety (TOPICS), in a joint venture with defendant City. The program was financed with federal funds and contributions from both the Commonwealth of Pennsylvania and the City of Philadelphia. At the time of the project, defendants City and PennDOT entered into a written agreement to allocate the costs of the project on a percentage basis. Defendants City and PennDOT were to have agreed as to whom was responsible for maintaining the various street improvements and traffic control devices that were being built. The project specifically included Broad Street just south of Olney Avenue comprising the traffic island in question, then northerly to Broad Street extending beyond Grange Street.
“Photographs of the accident site revealed a pothole on the traffic island. The photographs also revealed that the original east curb line of the traffic island (on the side of Old York Road) had been saw cut to widen the street for SEPTA buses to turn and travel. No one knows who authorized or, in fact, actually saw cut the traffic island to widen the travel lane for SEPTA buses along Old York Road between Tabor Road and Olney Avenue. However, it was recognized that the only entity to benefit from the widening of Old York Road near the traffic island is defendant SEPTA.
“In 1984, defendant SEPTA undertook certain improvement projects at its Olney Transportation Terminal which involved Tabor Road and Old York Road near the traffic island. There is a bus shelter on the traffic island approximately 60 feet from the site of the accident.
“No evidence was presented as to who maintains and/ or repairs the traffic island. None of the defendants could provide any agreement or understanding between any defendant as to which party was responsible for the traffic island.”

Each defendant represented a different legal argument:

“Defendant SEPTA contends it has no legal duty to maintain the traffic island because it does not own or possess it, nor did it build this traffic island. Defendant SEPTA further contends that plaintiff’s claim against it is barred by the provisions of sovereign immunity as provided by 42 Pa.C.S. §8541 et seq.
“Defendant PennDOT essentially contends that the accident occurred on a traffic island, which is also a traffic control device, under the jurisdiction of defendant City.
“Defendant City essentially contends that defendant PennDOT built the traffic island adjacent to a state-designated highway and was to maintain it and, therefore, defendant PennDOT is liable for plaintiff’s injuries.”

Following the one-day non-jury trial, this trial judge found defendant PennDOT solely liable to plaintiff for the settled amount, and ordered defendant PennDOT to reimburse defendants City and SEPTA the amount each contributed toward the settlement with plaintiff.

On January 8, 2003, defendant PennDOT filed a post-trial motion. Defendants SEPTA and City filed responses, and oral argument was scheduled for and heard on February 25,2003. By order dated February 25,2003, this trial judge denied defendant PennDOT’s post-trial motion.

Dissatisfied, defendant PennDOT on March 7, 2003, filed an appeal to the Commonwealth Court.

ISSUE

In response to an order issued in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), defendant PennDOT on March 21,2003, served unto this trial judge only, a statement of matters complained of on appeal and argues that this trial judge erred:

“(1) in finding that the traffic island located on Old York Road was within the Commonwealth’s party maintenance responsibility pursuant to 36 Pa.C.S. §1758-201 et seq. and 42 Pa.C.S. §8522(b)(4);
“(2) in misapplying Slough v. City of Philadelphia, 686 A.2d 62 (Pa. Commw. 1996), affirmed, 553 Pa. 673, 720 A.2d 485 (1998), in that Slough held that a traffic island within the curb lines of a state designated highway (two state-designated highways) is under the jurisdiction of the Commonwealth party maintenance responsibility, whereas, in the case at bar, the accident situs is a traffic island located outside the curb line of a state-designated highway and adjacent to a City of Philadelphia street, Old York Road;
“(3) in ignoring controlling statutes, 36 Pa.C.S. §1758-201 et seq.;
“(4) in weighing the evidence; to wit: was there competent evidence offered at trial that the situs of plaintiff’s accident was owned, possessed, or controlled by the Commonwealth party?;
“(5) in finding that plaintiff’s cause of action fell within the nine [sic] limited exceptions to sovereign immunity, 42 Pa.C.S. §8522 (b); and
“(6) in misapplying the definition of a traffic island (a term of art) by ignoring and not recognizing it as an official traffic control device as defined in the Uniform Manual of Traffic Control Devices, 1971 edition and all subsequent editions, codified at 67 Pa. Code §211.4(a), (b) and at 75 Pa.C.S. §6121.

LAW AND DISCUSSION

Since the defendants stipulated to the facts in this case, the non-jury trial consisted of legal argument by defendants on the determinative issue of the ownership, control and/or maintenance of the traffic island. In rendering the legal conclusions in this matter, this trial judge relied primarily on the holdings of Slough v. City of Philadelphia, 686 A.2d 62 (Pa. Commw. 1996), aff’d, 553 Pa. 673, 720 A.2d 485 (1998), and Hubbard v. PennDOT, 660 A.2d 201 (Pa. Commw. 1995), and the provisions of sovereign immunity as defined in title 42 Pa.C.S. §8541 et seq. Defendant PennDOT contends that this trial judge erred in its conclusion, and filed a post-trial motion which was subsequently denied.

In a non-jury matter, a trial court has inherent power to grant a new trial if it concludes that a factual or legal mistake was made at the trial level and, on consideration of the particular circumstances of the case, the mistake formed a sufficient basis to order a new trial. Eighth North-Val Inc. v. William L. Parkinson D.D.S., P.C., Pension Trust, 773 A.2d 1248, 1251 (Pa. Super. 2001). The power to grant or deny a motion for a new trial lies within the discretion of the trial judge and that court’s decision will not be overturned on review unless the court acted capriciously or palpably abused its discretion. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). The findings of the judge in a bench trial are given the same weight and effect as a jury verdict such that the court’s findings will not be disturbed on appeal absent an abuse of discretion, error of law, or lack of support in the record. Good v. Holstein, 787 A.2d 426 (Pa. Super. 2001), appeal denied, 568 Pa. 732, 798 A.2d 1290 (2002); Turney Media Fuel v. Toll Bros. Inc., 725 A.2d 836, 841 (Pa. Super. 1999). (citation omitted) Where the trial court sat as the finder of facts in a non-jury trial, its authority to grant a new trial to correct an error of law or injustice is enhanced, and the appellate court’s authority to override the trial court’s decision is proportionately diminished. Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 674 A.2d 1130 (1996).

As stated, the dispute between herein defendants centers on determining who owns, controls and/or maintains the traffic island site of the accident. It is undisputed that the traffic island was built by defendant PennDOT in an area between a state-designated highway and a city-owned public highway as part of a street improvement project of the TOPICS program, which was funded by the United States Department of Transportation, Federal Highway Administration. Under the terms of the TOPICS program, States administered federal funds for various highway projects within their states. Here, defendants PennDOT and City also contributed public funds and entered into a written agreement to allocate costs of the project between them on a percentage basis. These entities were to also enter into an agreement as to whom would be responsible for maintaining the various street improvements and traffic control devices. It is unclear whether the parties ever entered into such a contract, since none was found.

Based on these facts, defendant SEPTA argued that it has no liability in this matter because it did not build, nor does it own or have any legal duty to maintain the traffic island. It insists that the parties who control this piece of real estate, because they built the traffic island as a joint venture, are defendants PennDOT and City. Defendant SEPTA contends that defendants PennDOT and City are in joint possession of the traffic island since they built it together and, by agreement, were to have assigned the maintenance responsibility between or amongst themselves. Since no one could show that defendant SEPTA had any maintenance responsibility of this traffic island or ownership of the traffic island, this argument was accepted as uncontroverted. While the fact does not escape this trial judge that the traffic island had been saw cut to make the street wider for the benefit of SEPTA traffic, without evidence of “who done it,” this trial judge cannot assess a legal duty of care unto defendant SEPTA of the traffic island built by someone else on land not owned by defendant SEPTA.

Defendant SEPTA further argued that as a Commonwealth entity, a suit against it [defendant SEPTA] is barred by the doctrine of sovereign immunity unless it falls under one of the enumerated exceptions. Under the circumstances of this case, the likely germane exception would be the real property exception. However, this trial judge opines that this real property exception is inapplicable to defendant SEPTA since it does not own the real estate. Furthermore, as a transit agency, defendant SEPTA does not have control over any public highways nor, in particular, the public streets that surround the herein traffic island, which undisputedly are under the jurisdiction of either defendants PennDOT or City, depending on which side of the traffic island one is facing. Under the immunity analysis, this trial judge opines that defendant SEPTA has no ownership and/or control responsibility regarding the traffic island. Further, there was no evidence presented to find that defendant SEPTA had any maintenance responsibility of the traffic island.

This trial judge agreed with defendant SEPTA’s two distinct arguments and found that defendant SEPTA was not liable for plaintiff’s injuries. Consequently, in this trial judge’s opinion no error was committed in finding in favor of defendant SEPTA and exonerating it from liability toward Plaintiff.

As to defendant City, it essentially argued citing both Slough, 686 A.2d 62, aff’d, 553 Pa. 673, 720 A.2d 485, and Hubbard, 660 A.2d 201, that the traffic island is simply not a traffic control device, but rather, is part of the state-designated highway. Here, for defendant City to be liable for plaintiff’s injuries under the applicable exception to the governmental immunity provisions, the injury must result from a “dangerous condition of trees, traffic signs, lights or other traffic controls” under its care, control or custody. 42 Pa.C.S. §8542(b)(4). (emphasis added) This immunity exception must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability. Lory v. City of Philadelphia, 544 Pa. 38, 674 A.2d 673 (1996), cert. denied, 117 S.Ct. 184 (U.S. Pa. 1996). Thus, it is important to define these terms.

By definition, a traffic control island is an area within a roadway from which vehicular traffic is intended to be excluded for the purpose of controlling and directing specific movements of traffic to definite channels.

A traffic control device is a manually, electrically or mechanically operated signal by which traffic is alternately directed to stop and permitted to proceed.

In contrast to defendant City’s argument, defendant PennDOT premised its argument on the assumption that the traffic island in question is a traffic control device, and not part of the state-designated highway. Citing 36 Pa.C.S. §1758-204 of the 1961 Highway Act, defendant PennDOT asserted that the definition of its maintenance responsibility makes no mention of the maintenance of traffic control devices, and that it is not responsible for traffic devices on top of the surface, no matter how affixed. Defendant PennDOT did concede that pursuant to the provision of section 8542(b)(6)(h) of the Pennsylvania Code, it [defendant PennDOT] may be held liable for injuries arising out of a dangerous condition of streets or highways under its jurisdiction. Defendant PennDOT would be responsible for maintaining the traffic island only if it were part of the base or surface course of the roadway. However, defendant PennDOT asserted that if the purpose of the traffic island is to regulate or control traffic, then it is within defendant City’s responsibility.

This trial judge opines that the holdings of Slough and Hubbard, in conjunction with the definitions of traffic control device and traffic island, are controlling. In Slough, the appellate court carefully dissected the definitions of a traffic control device, contrasting it with a median and a traffic island. The court concluded that a “median” or “traffic island” is a “traffic control” in only the broadest sense of the term, acting merely as a means of separating or keeping one lane of travel from running into another. The court further held that a median was part of the highway, such that PennDOT was responsible for the median. The court further held that strictly construing the phrase “traffic control,” as used in the section 8542(b)(4) exception to governmental immunity, defendant City cannot be held liable for the dangerous condition of the median in said case. Slough, 686 A.2d at 65.

In Hubbard, the court held that a median was part of the highway instead of a sidewalk and that PennDOT was responsible for any injuries resulting from the defective maintenance of the median. Hubbard, 660 A.2d at 204.

While sympathetic to defendant PennDOT’s frustration in trying to convince this trial judge that its argument was the correct one to follow, this trial judge opines that the above-cited case law are unambiguous in defining median and/or traffic island and the maintenance responsibility which attaches. Thus, this trial judge opines that the decision reached in this matter is the correct one and, therefore, a new trial is not warranted.

This trial judge does acknowledge defendant Penn-DOT’s argument that Slough does not apply in this case because Slough dealt with a median between two state-designated highways, and here, the case involves a traffic island between a state-designated highway and a city-owned public highway. While defendant PennDOT is correct in this factual observation, this trial court opines that the conclusion reached is unaffected by this difference. Absent an agreement as to what entity maintains the traffic island, the purpose of the traffic island is the same whether it is between two state-designated highways or as here, a state-designated highway and a city-owned street. No error has been made by this trial judge’s reliance on the case law cited.

CONCLUSION

Based on the above discussion and relevant case law, this trial judge is of the opinion that no error was committed when deciding this case and denying defendant PennDOT’s motion for post-trial relief. This trial judge respectfully requests that defendant PennDOT’s appeal be dismissed, that the order dated February 25,2003, be affirmed, and this trial judge’s findings be upheld.

      . Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) and an order dated March 12,2003, defendant PennDOT was instructed to file of record and Serve Unto this trial judge a statement of matters complained of on appeal. Defendant PennDOT has not filed of record the statement of matters complained of on appeal. Thus, defendant PennDOT can be considered to have waived its appellate arguments. Notwithstanding and in the interest of judicial economy, this opinion is being issued.

      . The parties were unable to uncover any maintenance agreement.

      . See 42 Pa.C.S. §8542 (b).

      . Id. at §8542(b)(3).

      . 69 Pa.Code §211.4(b).

      . 67 Pa.Code §201.1

      . 36 Pa.C.S. §1758-203(2).

      . The portion of a divided highway separating the traveled ways for traffic in opposite directions. 67 Pa.Code §201.2.