author: ASHWORTH, J.,

text:
    Wilson v. Manor Care of Lancaster

      William P. Murray, III, for plaintiff.

      Jacquelin M. Carolan, for defendants.
    April 4, 2014
   ASHWORTH, J.,

— This matter is before

the court on moving defendants’ preliminary objections seeking to compel arbitration of this medical professional liability action and, alternatively, to dismiss claims for punitive damages and negligence per se. For the reasons set forth below, these preliminary objections will be sustained in part and overruled in part.

I. Background

Moving defendants are Manor Care of Lancaster, PA, LLC d/b/a Manorcare Health Services Lancaster, HCR Manor Care, Inc., HCR Healthcare, LLC, HCR Healthcare II, LLC, HCR Healthcare III, LLC, HCR Healthcare IV, LLC, ManorCare Health Services, Inc., and Manor Care, Inc. (Manor Care defendants). Plaintiff alleges that these defendants owned, operated, licensed and/or managed Manor Care Health Services Lancaster (the Facility) and were engaged in the business of providing skilled nursing care and assisted living/personal care services to the general public. (See complaint at ¶ 20.)

Plaintiff Harl Gene Wilson was a resident at the Manor Care Facility from October 18, 2010, through October 30, 2010. (See complaint at ¶ 2.) Mr. Wilson was admitted for rehabilitation following a hospitalization for a lumbar laminectomy. His primary admitting diagnosis was degeneration of a disc. He also had urinary retention symptoms. (Id. at ¶ 101.) Mr. Wilson required assistance with care for all of his activities of daily living. (Id. at ¶ 34.)

According to Manor Care defendants, at the time of admission, Mr. Wilson “had just been through major surgery, he was in a lot of pain, he was taking powerful pain medications, and he needed someone to act on his behalf.” (See supplemental memorandum of law of Manor Care defendants at 4.) So when asked by Manor Care to sign the necessary admissions papers on behalf of her father, Stephanie Calzada agreed. (See plaintiff’s response to Manor Care defendants’ supplemental memorandum of law, exhibit “A” (Calzada deposition) at 33.) Included in the series of documents presented to the patient’s daughter for signature was an arbitration agreement. (Id. at 62-63.) This agreement provided that any disputes arising out of or in any way relating to the agreement or to plaintiff’s stay at the facility, which could constitute a legally cognizable cause of action in a court of law, “shall be submitted to binding arbitration.” (Id., exhibit “B” at ¶ B.) Despite signing the agreement as “Patient’s legal representative,” Plaintiff’s daughter was not plaintiff’s power of attorney. (Id. at 32-33, 59; see also plaintiff’s supplemental memorandum, exhibit “E” (Kroeck Deposition) at 61, 69, 73, 83; Kroeck Deposition, exhibit “1” (financial information).) At the time of admission, plaintiff did not have a power of attorney in place. (Id.) Shawn Kroeck, the facility’s admission coordinator, signed the Manor Care agreement as a representative of the facility. (See Calzada deposition, exhibit “B.”)

Plaintiff Wilson commenced this action on May 21, 2012, alleging that Manor Care defendants’ professional negligence and reckless conduct caused his severe injuries during his admission at the facility. (See complaint at ¶ 142.) Those injuries included the worsening of a pressure ulcer on his coccyx, a urinary tract infection, poor hygiene, and severe pain. (Id. at ¶¶ 60, 114.) The negligent and reckless conduct by Manor Care defendants consisted of mismanagement, improper/ under-budgeting, under-staffing of the facility and lack of training or supervision of the facility employees, failure to provide adequate and appropriate health care, engaging in incomplete, inconsistent and fraudulent documentation, failure to develop an appropriate therapeutic care plan, failure to prevent infection, and failure to ensure the attainment of the highest level of physical, mental and psychological functioning. (Id. at 113.) Plaintiff further alleges negligence per se for violations of the neglect of a care-dependent person statute, 18 Pa. C.S.A. § 2713 (Id. at ¶¶ 150-57), and the older adults protective services act, 35 P.S. § 10225.101, et seq. (Id. at ¶¶ 158-65.)

Manor Care defendants filed preliminary objections to the complaint seeking to compel this matter to arbitration and, alternatively, to dismiss plaintiff’s claims of negligence per se and punitive damages. Following discovery on the issue of authority to execute the arbitration agreement, the parties submitted supplemental briefs in support of their respective positions. This matter is now ripe for disposition.

II. Discussion

A. Motion to Enforce Arbitration Agreement

Manor Care defendants have initially raised a preliminary objection pursuant to Pa. R.C.P. 1028(a)(6) contending that, based on the arbitration agreement signed by plaintiff’s daughter at the time of his admission, this court lacks subject matter jurisdiction and this case should be referred to arbitration. As a matter of public policy, our courts favor the settlement of disputes by arbitration to relieve the parties from expensive litigation and to ease the congestion of court calendars. Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. 2013). However,

[arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue. Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, arbitration agreements are to be strictly construed and such agreements should not be extended by implication.

Id. at 661 (quoting Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa. Super. 2012) (internal citation omitted)). Accordingly, arbitration between the parties in this case is required only if this court determines: (1) a valid agreement to arbitrate exists between the parties; and (2) the dispute involved is within the scope of the arbitration agreement. Setlock v. Pinebrook Personal Care and Retirement Center, 56 A.3d 904, 909 (Pa. Super. 2012). Thus, the threshold issue for this court is whether the parties have entered into a valid agreement to arbitrate.

Plaintiff argues that the arbitration agreement in this case is not valid because (1) plaintiff’s daughter, Stephanie Calzada, did not have authority to sign the agreement on her father’s behalf, (2) the agreement is unconscionable, and/or a contract of adhesion, and (3) the agreement is void as being against public policy, void for lack of consideration, void based on the fact that it was procured by fraud, void because it was signed under duress, void as defendants limit damages guaranteed to plaintiff by law, void as violating the Pennsylvania and United States Constitutions, and void as improperly limiting discovery that may be exchanged and the depositions that may be taken.

I initially consider plaintiff’s contention that the agreement to arbitrate is a nullity because Ms. Calzada had no authority to execute the agreement on behalf of her father. As noted above, no party can be forced to arbitrate unless that party has entered into an agreement to do so. Pisano, 77 A.3d at 661. “However, a party can be compelled to arbitrate under an agreement, even if he or she did not sign that agreement, if common-law principles of agency and contract support such an obligation on his or her part.” Array Healthcare Facilities Solutions Inc. v. Pesce, 2 Pa. D.&C.5th 547, 556 (2006), aff’d by Pesce v. Array Healthcare, 931 A.2d 60 (Pa. Super. 2007) (internal quotation and citation omitted). For the arbitration agreement to bind Mr. Wilson in this case, there must have existed an agency relationship between him and his daughter.

The law is well settled that “[t]he relationship of agency cannot be inferred from mere relationship or family ties unattended by conditions, acts or conduct clearly implying an agency.” Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super. 2013) (quoting Sidle v. Kaufman, 345 Pa. 549, 29 A.2d 77, 81 (1942)). Rather, an agency relationship is created through actual authority, apparent authority or authority by estoppel. Id. at 786. The burden of establishing an agency relationship rests with the party asserting the relationship. Basile v. H&R Block, Inc., 563 Pa. 359, 367-68, 761 A.2d 1115, 1120 (2000) (citing Scott v. Purcell, 490 Pa. 109, 117 n.8, 415 A.2d 56, 60 n.8 (1980)). This burden is a “fair preponderance of the evidence.” Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 412 Pa. Super. 140, 146, 602 A.2d 1348, 1351 (1992).

Here, Manor Care defendants have failed to establish that Ms. Calzada had actual authority to sign the Manor Care Health Services arbitration agreement. Actual authority exists where the principal deliberately and specifically grants authority to the agent as to certain matters. Walton, 66 A.3d at 786. It is undisputed that Ms. Calzada was not her father’s legal guardian nor did she have a power of attorney or any other writing authorizing her to take any action on behalf of her father at the time of his admission to the facility. (See Calzada deposition at 32-33, 59; see also Kroeck deposition at 61, 69, 73, 83; Kroeck deposition, exhibit “L”)

In fact, it was not clear to Ms. Calzada why she, and not her father, was presented with the admissions paperwork two days after Mr. Wilson’s admission to the facility and asked to sign on her father’s behalf, other than Manor Care told her she was listed as her father’s “emergency contact.” (Calzada deposition at 33; Kroeck deposition, exhibit “1” (Admitting record).) According to Manor Care defendants, at the time of admission, Mr. Wilson “needed someone to act on his behalf.” (See Manor Care defendants’ supplemental memorandum at 4.) Specifically, on admission, Mr. Wilson “presented with pain he rated at ‘8 out [of] 10’.” (Id. at 2.) The nurses’ progress notes for the first three days at the Facility “describe the pain he was complaining of in his back, hip and legs, and the pain medications being prescribed, and adjusted, to address his pain.” (Id., Exhibit “C.”) Because of his pain, Mr. Wilson received “multiple administrations of Vicodin and Lyrica... those first days of his Manor Care admission.” (Id., Exhibit “D.”) Based upon the totality of this evidence, Manor Care defendants assert that “[i]t can reasonably be inferred that Mr. Wilson did not sign the admission paperwork himself based on his post-operative use of these narcotic pain medications” and this is why Ms. Calzada “took over this role.” (See Manor Care defendants’ supplemental memorandum at 2, 4.)

If the court infers, as suggested by defendants, that plaintiff lacked the mental capacity to review and understand the admissions paperwork due to his medications, then Mr. Wilson similarly lacked the ability to appoint an agent to sign that paperwork for him. A person without the mental capacity to manage his own affairs “lacks the ability to appoint agents to do it for [him].” In re Dean, 167 Pa. Super. 92, 100, 74 A.2d 538, 541 (1950). Mr. Wilson, who “needed someone to act on his behalf’ due to his diminished capacity as a result of the strong narcotic medications, simply could not delegate to his daughter the authority to sign the admissions paperwork which included the arbitration agreement. See Walton, 66 A.3d at 786 (in finding mother lacked authority to sign arbitration agreement for daughter who was in a coma at time of admission, court noted that comatose patient “could not authorize her own treatment nor could she grant authority to anyone else.”).

Moreover, there is no evidence that at any time during his admission to the facility Mr. Wilson advised his daughter that he wanted her to sign the arbitration agreement on his behalf. (See Calzada deposition at 85-86.) Ms. Calzada neither told her father she had been asked to sign any admissions paperwork (including the arbitration agreement), nor that she would sign it. (Id. at 86.) Without the mental capacity to review and understand the admissions paperwork due to his medications, Mr. Wilson similarly lacked the ability to appoint an agent to sign that paperwork for him.

Defendants have further failed to establish that Ms. Calzada had apparent authority to waive Mr. Wilson’s constitutional right to litigate his claims in court. Apparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe the principal has granted the agent the authority he or she purports to exercise. Walton, 66 A.3d at 786. See also Triage v. Prime Insurance Syndicate, Inc., 887 A.2d 303, 307 (Pa. Super. 2005). Also, an agent cannot, simply by her own words, invest herself with apparent authority. Such authority emanates from the principal’s action and not the agent’s. Walton, 66 A.3d at 787 (citing Turnway Corporation v. Soffer, 461 Pa. 447, 458, 336 A.2d 871, 876 (1975)).

There is no evidence presented of any manifestation by Mr. Wilson to the facility that his daughter was authorized to act on his behalf. Indeed, defendants’ argument focuses on the actions of the daughter, the purported agent, in attempting to establish apparent authority. Manor Care defendants’ contention that Ms. Calzada “held herself out as her father’s agent,” by signing on the arbitration agreement line labeled “Legal Representative,” is meritless. (See Manor Care defendants’ supplemental memorandum at 9.) Again, authority emanates from the principal’s action and not the agent’s.

Manor Care defendants spend the majority of their supplemental memorandum of law explaining their subjective interpretation of the deposition testimony of Linda Sullivan, the Nursing Home Administrator for the Genesis defendants. (See Manor Care defendants’ supplemental memorandum at 3, 5, 6, 8, 9.) They contend that admissions conversations with Mr. Wilson and his daughter, as detailed by Ms. Sullivan one month after the Manor Care admission, establish an agency relationship in Ms. Calzada at the time she signed the arbitration agreement at the Manor Care Facility one month earlier. (Id. at 6.) Occurrences at the Genesis defendants’ facility after the relevant admission at Manor Care have absolutely no bearing on the validity of the arbitration agreement signed at the Manor Care facility, nor does it have any bearing on Ms. Calzada’s legal authority at that point in time.

The documents at issue with the Genesis defendants were signed on November 15, 2010. The documents at issue here were signed on October 20, 2010. Manor Care defendants cannot argue that the events surrounding Mr. Wilson’s admission to the Genesis defendants’ facility establish that an agency relationship existed a month prior at a separate facility.

This testimony by Ms. Sullivan simply does not support a finding that Mr. Wilson authorized his daughter to sign a writing on his behalf at Manor Care that forfeited his right to a jury trial. Moreover, there is no other evidence in the record that would support a finding of apparent authority.

Here, the alleged principal, Mr. Wilson, was not present during the admission process and it is now Manor Care defendants’ position that Mr. Wilson “needed someone to act on his behalf’ at that time. (See Manor Care defendants’ supplemental memorandum at 4.) Consequently, the alleged principal did not, by word or conduct, lead the facility to believe that he had granted his daughter the authority to sign any papers on his behalf.

Manor Care defendants concede that their admissions coordinator, Shawn Kroeck, has no recollection of Mr. Wilson’s admission and, thus, can offer no testimony of any alleged agency relationship created between Mr. Wilson and Ms. Calzada upon which Mr. Kroeck relied when presenting the admissions paperwork and the arbitration agreement at issue. (See Manor Care defendants’ supplemental memorandum at 4; Kroeck deposition at 61-84, 88.)

Lastly, agency by estoppel occurs when the principal fails to take reasonable steps to disavow the third party of their belief that the purported agent was authorized to act on behalf of the principal. Walton, 66 A.3d at 786. It is “essentially a determination of agency by after-the-fact actions by the principal.” Id. at 788.

Therefore, to prevail on a claim of agency by estoppel on the issue of authority to sign the ADR agreement, [defendant hospital] must prove by a fair preponderance of the evidence that either: (1) there was some carelessness or negligence on the part of [the principal patient] that allowed [defendant hospital] to rely on the waiver or (2) she did not take reasonable steps, knowing that [defendant hospital] was relying on the waiver, to correct their belief.

Id. at 788-89 (footnote omitted).

There is no authority by estoppel because Manor Care defendants offered no evidence Mr. Wilson was negligent in failing to take reasonable steps to disavow the Facility of its belief that Ms. Calzada was authorized to act on his behalf. Manor Care defendants offered no evidence showing Mr. Wilson knew of the arbitration clause, authorized his daughter to sign the agreement, or otherwise agreed to arbitrate any disputes with the Facility.

Manor Care defendants acknowledge that the facility specifically knew of Mr. Wilson’s diminished mental capacity at the time of his admission and for several days thereafter due to the consumption of narcotic pain medications. (See Manor Care defendants’ supplemental memorandum at 2.) In fact, Mr. Wilson was not even present during the admission process (see Calzada deposition at 60); thus, Manor Care defendants offered no evidence whatsoever of Mr. Wilson’s conduct when the agreement was executed. Nor did Manor Care defendants offer any evidence of Mr. Wilson’s conduct at the facility after the agreement was signed by his daughter. The facility neither presented the arbitration agreement to Mr. Wilson at a later time for his ratification nor did it provide him with a copy of the agreement signed by his daughter.

Therefore, Manor Care defendants presented no evidence that Mr. Wilson knew or should have known about the waiver after-the-fact or that his daughter might have exceeded her authority in signing the agreement. Manor Care defendants presented nothing to suggest that a waiver of a jury trial was something that a patient should anticipate upon admission to the facility. Manor Care defendants have not shown what reasonable steps Mr. Wilson should have taken, but did not, in order to avoid a finding of agency by estoppel. Because there is no showing Mr. Wilson knew or should have known about the arbitration agreement, he cannot have been negligent either for failing to repudiate his daughter’s actions or for failing to take reasonable steps to notify the Facility that reliance on the agreement was improper. Therefore, Manor Care defendants cannot prevail on an assertion of agency by estoppel.

Based upon the facts of this case, I find that Ms. Calzada had no authority to execute the arbitration agreement on behalf of her father; therefore, no valid agreement to arbitrate exists between the parties. Because of this finding, I do not consider the other reasons plaintiff offered for denying Manor Care defendants’ motion to compel arbitration.

B. The Remaining Non-Arbitration Preliminary Objections

1. Negligence Per Se

Manor Care defendants contend that plaintiff’s claims of negligence per se arising from violations of the neglect of care-dependent person statute, 18 Pa. C.S.A. § 2713, and the older adults protective services act, 3 5 P. S. § 10225.101 et seq., are legally insufficient and, therefore, should be stricken. The court disagrees. For a full discussion and analysis of this issue, see Bernhardt v. ManorCare, et al., No. CI-12-10666, slip op. (C.P. Lancaster, February 24, 2014), and Jones v. GGNSC, et al, No. CI-12-12987, slip op. (C.P. Lancaster, January 24, 2014).

The clearly stated purpose of both statutes is to protect older or care-dependent Pennsylvanians from abuse and neglect by caretakers, including long term care nursing facilities. See 18 Pa. C.S.A. § 2713(a)(1); 35 P.S. § 10225.102. In the instant matter, with respect to the claim of negligence per se based on the dependent person statute, Mr. Wilson was clearly a member of a class of nursing home residents that the statute was designed to protect and defendants were Mr. Wilson’s “caretakers” as defined by 18 Pa. C.S.A. § 2713. Plaintiff’s averments, if proven, certainly could establish that defendants’ alleged reckless failure to provide basic care caused Mr. Wilson avoidable injuries and suffering. Thus, plaintiff’s allegations clearly support a claim that defendants’ conduct falls within the type of harm that the statute seeks to prevent and furthers the statute’s purpose of protecting a target group of individuals classified as care-dependent persons.

Similarly, Mr. Wilson, as a nursing home resident, comes within the older person’s protections intended by the protective services act. See 35 P.S. § 10225.103. Moreover, the statute is directed, at least in part, to obviate the specific kinds of harm which were alleged to have been sustained: the worsening of pressure ulcers, a urinary tract infection, poor hygiene, and severe pain. (See complaint at ¶¶ 60,114.) As plaintiff alleges that defendants’ failures to provide basic care caused Mr. Wilson avoidable pain and suffering, the law supports plaintiff’s claim for negligence per se arising from defendants’ alleged protective services act violations.

It should be noted that plaintiff has asserted these negligence per se claims in separate counts of the complaint. Under Pennsylvania law, however, negligence per se “does not create an independent basis of tort liability but rather establishes, by reference to a statutory scheme, the standard of care appropriate to the underlying tort.” Cabiroy v. Scipione, 767 A.2d 1078, 1082 (Pa. Super. 2001) (quoting In re Orthopedic Bone Screw Prod. Liab. Litig., 193 F.3d 781, 790 (3d Cir. 1999)). Since the violation of a statute in and of itself cannot serve as an independent basis of liability, counts two and three of the complaint should be dismissed. Plaintiff, however, will be granted leave to amend his complaint to incorporate the negligence per se claims pursuant to the dependent person statute and protective services act as additional bases for the negligence claim set forth in count one of the complaint.

2. Punitive Damages

Manor Care defendants’ last preliminary objection is a demurrer to plaintiffs’ claim for punitive damages. This objection must be overruled. For a full discussion and analysis of this issue, see Bernhardt v. ManorCare, supra, and Jones v. GGNSC, supra.

Here, plaintiff alleges that Manor Care defendants, motivated by a desire to increase profits, knowingly reduced expenditures for needed staffing, training, supervision, and care to levels that it knew created recklessly high resident-to-nurse ratios that inevitably would lead to numerous infections and other injuries, such as those suffered by Mr. Wilson. {See complaint at ¶¶ 48-60.) Plaintiff has averred facts that establish defendants knew, or should have known, their understaffing created a high degree of risk of physical harm to its patients and deliberately proceeded to understaff its facility in conscious disregard to that risk in order to maximize its profits. (Id.) This court cannot say with certainty that upon these facts averred, the law will not permit plaintiff to recover punitive damages.

After discovery is completed in this case, if, as claimed by defendants, plaintiff is unable to prove any facts to support the claim for punitive damages, then this court will entertain a motion for summary judgment. Until then, this court is loath to decide the viability of plaintiff’s punitive damages claim as it cannot say that no reasonable inference from the facts alleged supports a punitive award. Therefore, Manor Care defendants’ demurrer to plaintiff’s claim for punitive damages will be overruled and dismissed at this time, without prejudice.

III. Conclusion

For the reasons set forth above, Manor Care defendants’ preliminary objections to plaintiff’s complaint will be sustained in part and overruled in part.

Accordingly, I enter the following:

ORDER

And now, this 4th day of April, 2014, upon consideration of the preliminary objections of defendants, plaintiff’s response thereto, and the briefs filed by the parties, it is hereby ordered as follows:

1. Defendants’ preliminary objection in the nature of a motion to compel arbitration is overruled and dismissed;

2. Defendants’ preliminary objection in the nature of a demurrer to count two is sustained and count two is dismissed;

3. Defendants’ preliminary objection in the nature of a demurrer to count three is sustained and count three is dismissed; and

4. Defendants’ preliminary objection in the nature of a demurrer to plaintiff’s claim for punitive damages is overruled and dismissed, without prejudice.

It is further ordered that plaintiff shall have 30 days from the date of this order to file an amended complaint to incorporate the negligence per se claims pursuant to the neglect of care-dependent person statute, 18 Pa. C.S.A. § 2713, and the older adults protective services act, 35 P.S. § 10225.101 et seq., as additional bases for the negligence claim set forth in count one of the complaint.

      . Plaintiff has also sued Genesis Healthcare, LLC, 333 South West End Avenue Operations LLC, d/b/a Hamilton Arms Center, Genesis PA Holdings, LLC, Genesis Operations, LLC, and GHC Holdings, LLC, the corporate owners, operators and/or managers of the skilled nursing facility known as Hamilton Arms Center, where Mr. Wilson was a resident from November 15, 2010, through November 27, 2010. (See complaint at ¶¶ 3, 21 -31.)

      . Despite this well-established principle, Manor Care defendants contend that because “Mr. Wilson [failed] to present any testimony that his daughter did not have his permission to act on his behalf in signing the Manor Care admission paperwork,” that “in and of itself, [is] determinative of the issue before the court” and “[bjased on this fact alone, the court can reasonably infer and conclude that his daughter, Stephanie, did have authority to act on his behalf.” (See Manor Care defendants’ supplemental memorandum at 2 (emphasis added).) This argument is contrary to the law. It was not plaintiff’s obligation to appear for a deposition or present testimony and “this fact alone” will not establish the intention of the parties. Moving defendants insist that “[a] negative inference can be drawn from the fact that Mr. Wilson has not presented any testimony at all. Clearly, if Ms. Calzada did not have his consent to sign the Manor Care paperwork for him, it is his burden to present that testimony. The defendants are entitled to a negative inference in this respect.” (Id at 8.) There was no evidence presented that plaintiff was not available or had refused to be deposed. Moreover, a negative inference is not positive evidence. Yi v. State Board of Veterinary

        Medicine, 960 A.2d 864, 875 (Pa. Cmwlth. 2008).

      . Defendants concede that their admissions coordinator, Shawn Kroeck, has no recollection of Mr. Wilson’s admission and, thus, can offer no specific testimony on this issue or any other. (See Manor Care defendants’ supplemental memorandum at 4; see also Kroeck Deposition at 61-84, 88.)

      . This case is consistent with other decisions in this Commonwealth involving the issue of a child’s apparent authority to sign an arbitration agreement as part of the nursing home admission process for a parent. See Walton, supra (finding arbitration agreement invalid where mother lacked authority to sign arbitration agreement for daughter who was in a coma at time of admission); Wert v. Manorcare of Carlisle PA, LLC, 61 Cumb. 381 (2012) (finding arbitration agreement invalid because decedent was capable of signing admission paperwork herself and defendant failed to show daughter had any authority to bind decedent to arbitration); Sullenberger v. HCF, Inc., 89 W.L.J. 169 (2007) (finding arbitration agreement invalid where son did not possess power of attorney to act as the legal agent of his mother and defendant failed to show son had any authority to bind mother to arbitration); Duprey v. ManorCare Health Services — Carlisle, No. 12-1419, slip op. (C.P. Cumberland Co. Sept. 13, 2012) (finding arbitration agreement invalid where resident’s daughter had neither actual authority, due to lack of power of attorney, nor apparent authority, due to failure to present evidence that resident held out her daughter as authorized to act on her behalf). See also, Joe v. Mercy Fitzgerald Hospital, 26 Pa. D.&C.5th 164 (Phila. 2012) (overruling preliminary objection seeking to compel arbitration because defendant did not provide sufficient evidence that patient’s husband had authority to sign arbitration agreement for patient); Carr v. Immaculate Mary Nursing Home, 15 Pa. D.&C.5th 415 (Phila. 2010) (overruling preliminary objection seeking to compel arbitration because defendant did not provide sufficient evidence that patient’s wife had authority to sign arbitration agreement for patient); Hickman v. Woodhaven, 156 P.L.J. 257 (2008) (overruling preliminary objection seeking to compel arbitration, finding the agreement invalid because husband did not have power of attorney over his wife, and defendants failed to establish any agency relationship between them); Ronan v. Manorcare of Carlisle, PA, LLC, No. 11-7482, slip op. (C.P. Cumberland Aug. 27, 2012) (same); Kazimer v. Manor Care of Carlisle PA LLC, No. 10-3391, slip op. (C.P. Cumberland Aug. 2010) (same).

      . Defendants’ argument that plaintiff should be estopped from denying that his daughter did not have authority to sign the Manor Care arbitration agreement based upon Mr. Wilson’s alleged statement, one month later, to Ms. Sullivan at the Hamilton Arms Center that his “daughter takes care of everything for [him],” must be rejected as extraneous and irrelevant and immaterial.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Commonwealth v. Pal

      Eugene M. Taler ico, Jr., William J. Fisher and Brian J. Gallagher, for Commonwealth.

      Paul J. Walker and Matthew Comerford, for defendant.
    April 23, 2014-
   NEALON, J.,

ORDER

Defendant, Neil Pal (“Pal”), has been charged with first-degree murder as an accomplice, third-degree murder as an accomplice, and criminal conspiracy to commit those offenses in connection with the murder of Frank Bonacci (“Bonacci”) on July 20,2013. The Commonwealth charged Pal’s co-defendant, Jason Dominick (“Dominick”), with criminal homicide as the principal for the actual shooting and killing Bonacci. Pal’s accomplice liability is predicated upon the Commonwealth’s assertion that Pal arranged for Pal, Dominick and Bonacci to be alone in Bonacci’s vehicle, drove that vehicle to an isolated area where the shooting could occur unnoticed, provided Dominick with the gun that he used to shoot Bonacci, and after Bonacci was shot by Dominick, assisted in plummeting Bonacci’s vehicle and body down a seventy-two foot embankment where they were not discovered until seven days later. See Com. v. Pal, 2013 WL 6197355, at *14-15 (Lacka. Co. 2013). Based upon the jury verdict in Commonwealth v. Dominick, No. 13 CR 2273 (Lacka. Co.) on May 10, 2014, finding Dominick not guilty of first-degree murder and criminal conspiracy to commit first-degree murder, but guilty of third-degree murder and criminal conspiracy to commit third-degree murder, Pal filed the instant “motion to dismiss” on May 23, 2014, seeking to “dismiss the charges of first-degree murder, accomplice liability, and conspiracy to commit first degree-murder.” (Defendant’s motion to dismiss at p. 2).

By way of relevant background, the Commonwealth joined the prosecutions of Pal and Dominick for a single trial pursuant to Pa.R.Crim.P. 582. In compliance with the scheduling orders dated October 24, 2013, and January 13, 2014, setting deadlines for the filing of motions in limine addressing any anticipated evidentiary issues, the Commonwealth and Pal filed timely motions in limine seeking pre-trial rulings regarding the admission or exclusion of particular evidence. Several of those pre-trial motions concerned the admissibility or inadmissibly of evidence of “other bad acts” by Pal and Dominick under Pennsylvania Rule of Evidence 404(b), which precludes any evidence “of a crime, wrong, or other act” by a defendant “to show that a defendant acted in conformity with those past acts or to show criminal propensity.” Com. v. Reves-Rodriguez, 2014 WL 1040502, at *3 (Pa. Super. 2014).

In light of the fact that the Commonwealth contends that Pal provided Dominick with the .38 caliber gun and wad-cutter bullets that he used to shoot Bonacci, a pre-trial ruling was made that the Commonwealth could present evidence of Pal’s possession and display of a handgun in public, but that any evidence that Pal previously discharged a handgun in public was inadmissible under Pa.R.E. 404(b) since the Commonwealth does not assert that Pal fired a weapon at Bonacci. See Com. v. Pal, 2014 WL 1632248, at *8 (Lacka. Co. 2014). The only pre-trial evidentiary motion that was timely filed by Dominick related to the proffered testimony of a jailhouse informant, see Com. v. Dominick, 2014 WL 1767474 (Lacka. Co. 2014), and Dominick never provided any seasonable indication of his intent to introduce any evidence of “other bad acts” by Pal in conformity with Pa.R.E.404(b). Pal twice filed motions seeking to sever the joint trial of Dominick and Pal, but those motions for severance were denied due to the fact that as Pal could not identify any evidence that was admissible against one defendant, but inadmissible as to the other defendant. See Com. v. Pal, 2014 WL 1577521 (Lacka. Co. 2014); Com. v. Pal, 2014 WL 1042276 (Lacka. Co. 2014).

By Order dated January 13, 2014, the joint trial of Pal and Dominick was scheduled for Monday, April 28,2014. On Thursday, April 24,2014, at 3:55 PM, Dominick filed “defendant’s submission on the issue of evidence relating to character under Pennsylvania Rule of Evidence 404(b) relating [to] prior crimes, wrongs, or other acts” notifying the court and counsel for the first time of Dominick’s intention to introduce evidence at trial of Pal’s discharge or use of a handgun in public during alleged incidents involving Emily Gilgallon and Steve Bieryla. Com. v. Pal, 2014 WL 1978623, at *2 (Lacka. Co. 2014). At 5:39 PM on April 24, 2014, counsel for the Commonwealth forwarded an email communication to the undersigned and defense counsel requesting an emergency conference on April 25, 2014, to discuss Dominick’s “other bad acts” submission that his counsel had filed at 3:55 PM. Id. at *3. After counsel for Dominick stated during that emergency conference on April 25, 2014, that Dominick intended “to argue that Pal was the shooter and to present evidence of Pal’s prior bad acts” involving Ms. Gilgallon and Mr. Bieryla, and inasmuch as that same evidence had already been ruled inadmissible in Pal’s prosecution, an order was filed on April 25, 2014, which stated:

Thus, by virtue of Dominick’s eleventh hour disclosure of the “prior bad acts” evidence he will now seek to introduce in an effort to show that Bonacci’s murder was committed by someone else, evidence which is admissible in Dominick’s case is inadmissible in Pal’s prosecution, as a result of which these matters can no longer be tried to verdict in ajoint trial. Consequently, and regrettably at this late date, the earlier rulings denying Pal’s motions for severance will be reconsidered and the trial in Com. v. Pal, No. 13 CR 2269 and Com. v. Dominick, No. 13 CR 2273 will be severed for separate trials pursuant to Pa.R.Crim.P. 583. As promptly as practicable, counsel for the Commonwealth will advise defense counsel as to which case will be tried first commencing with jury selection on Monday, April 28, 2014, and which case will be tried second beginning with jury selection on June 2, 2014.

Id. The Commonwealth opted to try Com. v. Dominick first, and on May 10, 2014, the jury in that case found Dominick not guilty of first-degree murder and criminal conspiracy to commit first-degree murder, and guilty of third-degree murder and criminal conspiracy to commit third-degree murder. (See Transcript of Proceedings (“T.P.”) in Com. v. Dominick, No. 13 CR 2273, on 5/10/14 at pp. 15-16).

In his motion to dismiss, Pal notes that “the Commonwealth has charged Dominick as the principal]” on the ground “that he was the shooter at issue” and “has always proceeded on the theory that defendant Pal acted only as an accomplice and/or conspirator of defendant Dominick.” (Defendant’s motion to dismiss at ¶¶ 4-5). Based upon Dominick’s acquittal of first-degree murder and criminal conspiracy to commit first-degree murder, Pal asserts that “[t]he Commonwealth is barred from trying defendant Pal on all first-degree murder charges on collateral estoppel grounds.” (Id. at ¶ 9). Pal cites the trial court decision in Com. v. Ricci, 89 Pa. D. & C. 187 (Montg. Co. 1954) as the sole authority for his collateral estoppel argument. (Id. at ¶¶ 10-12).

“[I]t has long been the rule in Pennsylvania and in the federal courts that consistency in a verdict in a criminal case is not necessary.” Com. v. Campbell, 539 Pa. 212, 219, 651 A.2d 1096, 1100 (1994) (citing Dunn v. United States, 284 U.S. 390, 393 (1932) and Com. v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376 (1971)). As the Superior Court recently observed, “[i]nconsistent verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal.” Com. v. Tha, 64 A.2d 704, 711 (Pa. Super. 2013). For that reason, a defendant in a joint trial may be convicted of conspiracy even though the defendant’s sole alleged coconspirator is acquitted of the conspiracy charge by the same jury. Campbell, 539 Pa. at 221,651 A.2d at 1101.

Pal’s contention, that the acquittal of Dominick of the first-degree murder offenses bars Pal’s prosecution for accomplice liability for those same offenses, is directly contrary to the clear language of Section 306 of the Pennsylvania Crimes Code governing accomplice liability. Section 306(g) of the Code, which became effective on June 6, 1973, expressly states that “[a]n accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense ... has been convicted of a different offense or degree of offense...or has been acquitted.” 18 Pa.C.S.A. § 306(g). In interpreting Section 306(g), the Supreme Court of Pennsylvania specifically rejected the collateral estoppel argument being advanced by Pal, and distinctly held “that a judgment of acquittal of one criminal defendant does not prevent the relitigation of an issue or controversy in the prosecution of another criminal defendant, even though the same transaction is involved.” Com. v. Brown, 473 Pa. 358, 464, 375 A.2d 331,334-335 (1977) (concluding that trial court erred in dismissing murder charge against defendant based upon the earlier acquittal of defendant’s accomplice arising out of the same killing). Thus, the fact that Dominick was acquitted of first-degree murder does not foreclose Pal’s prosecution and conviction for accomplice liability for first-degree murder.

The same holds true with respect to the charge of conspiracy to commit first-degree murder. “[0]ur courts have held that the acquittal of a defendant’s sole alleged coconspirator does not preclude the prosecution and conviction of that defendant on a conspiracy charge.” Com. v. Fremd, 860 A.2d 515, 521 (Pa. Super. 2004), app. denied, 586 Pa. 708, 889 A.2d 1213 (2005). This well established axiom governs the culpability of an alleged conspirator regardless of whether the defendant’s co-conspirator was subsequently acquitted at a later trial, see Com. v. Byrd, 490 Pa. 544, 555-556, 417 A.2d 173, 179 (1980), or was previously acquitted in an earlier trial. See Com. v. Snowdy, 412 Pa. Super. 493, 502, 603 A.2d 1044, 1048 (1992) (holding “that the acquittal of an alleged conspirator in a separate trial does not preclude finding his only alleged coconspirator guilty of conspiracy in subsequent proceedings.”), app. denied, 533 Pa. 633, 621 A.2d 580 (1993); Com. v. Phillips, 411 Pa. Super. 329, 337-338, 601 A.2d 816,820 (1992), aff’d, 534 Pa. 423, 633 A.2d 604 (1993). As a result, Dominick’s acquittal of conspiracy to commit first-degree murder has no effect upon Pal’s criminal culpability for that same offense. Snowdy, supra; Phillips, supra.

Consequently, the acquittal of Dominick of principal liability for first-degree murder and criminal conspiracy to commit first-degree murder does not preclude the prosecution and conviction of Pal for first-degree murder as an accomplice and conspiracy to commit first-degree murder, particularly since Pal’s charges will be decided by a different jury which will hear substantially similar, but not identical, evidence. See Campbell, 539 Pa. at 216, 651 A.2d at 1099 (“The different verdicts could instead be the result of different proof offered at the separate trials or the different composition of the juries.”). For that reason, it is unnecessary to require the filing of a response by the Commonwealth to Pal’s motion to dismiss. Based upon 18 Pa.C.S.A. §306(g) and the appellate precedent discussed above, Pal’s “Motion to Dismiss” is devoid of arguable merit and, therefore, will be denied.

And now, this 23rd day of April, 2014, upon consideration of the “Motion to Dismiss” filed by defendant, Neil Pal, on March 23, 2014, in anticipation of the trial which will begin on June 2,2014, and based upon the reasoning set forth above, it is hereby ordered and decreed that the “Motion to Dismiss” filed by defendant, Neil Pal, is denied.

      . Rule 404(b)(2) states that proof of “other bad acts” is admissible for the purpose of proving “opportunity,” and evidence that the defendant possessed a weapon or instrument that could have been used in a murder is admissible under the “opportunity” exception set forth in Rule 404(b) (2). See Com. v. Reese, 31 A.3d 708, 726 (Pa. Super. 2011); Com. v. Akers, 392 Pa. Super. 170, 186-188, 572 A.2d 746, 754 (1990), app. denied, 526 Pa. 627, 584 A.2d 310 (1990). Since the Commonwealth contends that Pal provided Dominick with the .38 caliber handgun and wad-cutter bullets used to kill Bonacci, and inasmuch as the Commonwealth’s firearm and tool mark examiner concluded that bullet projectiles removed from the wall of Pal’s garage have similar characteristics and tool marks as the projective removed from Bonacci’s head during his autopsy, we held that the Commonwealth could introduce evidence that Pal discharged handguns into his garage wall to show, pursuant to the “opportunity” exception under Rule 404(b)(2), that Pal had the opportunity or means to provide the gun and bullets to Dominick. Com. v. Pal, 2014 WL 1632248, at *4 (Lacka. Co. 2014).

      . In his defense of these murder charges, Dominick originally claimed that he was not present at the time of Bonacci’s murder, nor was he involved in any manner with Bonacci’s disappearance and murder. See Com. v. Dominick, 2014 WL 197352, at *5 (Lacka. Co. 2014) (quoting Transcript of Proceedings (“T.P.”) in Com. v. Dominick, No. 13 CR 2273, on 10/15/13 at pp. 177-180, 184, 186-193, 203, 211,213). In February and March of 2014, Dominick reportedly acknowledged to a fellow prison inmate that he murdered Bonacci due to their ongoing dispute over a woman, and stated that the fatal shooting occurred as Pal was driving Bonacci’s vehicle with Bonacci seated in the front passenger seat and Dominick positioned in the rear passenger side seat. Com. v. Pal, 2014 WL 1577521, at *2-3 (Lacka. Co. 2014). After Dominick secured reports dated April 11, 2014, and April 23, 2014, from Emmanuel Kapelsohn opining “that the fatal shot could possibly have been fired from either the driver’s seat or the rear right-side passenger seat, but would more easily have been fired from the driver’s seat,” Dominick altered his defense strategy again and asserted that Pal, not Dominick, shot Bonacci on July 20, 2013. Com. v. Pal, 2014 WL 1978623, at *2 (Lacka. Co. 2014).

      . The Montgomery County court ruling relied upon by Pal, Com. v. Ricci, 89 Pa. D. & C. 187 (Montg. Co. 1954), does not justify a contrary conclusion. In Ricci, the trial court reasoned, albeit without citation to any supporting authority, that “[w]here the principal in a separate trial is adjudged not guilty, there is no felony committed according to the verdict, and we cannot sentence an accessory before the fact to a felony, when a jury decided that no felony was ever committed.” Id. at 188. The lower court holding in Ricci, was issued prior to the 1973 enactment of the above-quoted provision in Section 306(g) of the Crimes Code, 18 Pa.C.S.A., and the Supreme Court interpretation of that statutory language in Brown. The rationale in Ricci directly conflicts with the unequivocal language of Section 306(g) and the Supreme Court holding in Brown. It is also noteworthy that no Pennsylvania court has ever cited or followed the holding in Ricci.


author: ZULICK, J.,

text:
    Comrie v. Atlantic States Insurance Co.

      Kevin M. Conaboy, for plaintiffs.

      Robert E. Smith, for defendant.
    May 29, 2014
   ZULICK, J.,

— Plaintiffs Alexander Comrie III and Patricia Comrie have filed a complaint against defendant Atlantic States Insurance Company, (Atlantic States) seeking underinsured motorist benefits (UIM claim) in count I and damages for bad faith in the handling of their UIM claim pursuant to 42 Pa.C.S.A. §8371 in count II. Atlantic States has filed a motion to sever and stay the bad faith and breach of contract counts of the complaint. The case arises out of a motor vehicle collision which took place on August 4, 2010. Plaintiff Alexander Comrie III was driving a vehicle that was allegedly rear-ended by a vehicle driven by Alice Hendershot. Plaintiffs brought suit against Ms. Hendershot in this court at No. 6514 Civil 2011. At compulsory arbitration, plaintiffs were awarded $17,500. Plaintiffs appealed, and eventually sought consent to settle from Atlantic States. The case was then settled for $18,500. The settlement was for less than the Hendershot $25,000 liability policy limit.

The Comries filed their complaint on October 15,2013. Atlantic States responded with preliminary objections on January 21, 2014. Atlantic States then filed a motion to sever and stay the bad faith claim. Both parties briefed their respective positions on this question, and the matter was argued before the court on April 7, 2014.

DISCUSSION

Atlantic States has moved to sever the breach of contract/UIM claim from the bad faith claim, and to stay the proceedings in the bad faith action until the UIM claim has been concluded. Pa.R.C.P. 213(b) provides:

The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues.

Pa.R.C.P. 213(b). “The decision whether to sever or bifurcate under Rule 213(b) is entrusted to the discretion of the trial court, which is in the best position to evaluate the necessity for taking measures the rule permits. Gallagher v. Pa. Liquor Control Bd., 584 Pa. 362, 883 A.2d 550, 557 (2007),” Ball v. Bayard Pump & Tank Co., Inc., 67 A.3d 759,767 (Pa.2013). The trial court’s severance of a cause of action should be “aimed at assuring efficiency and convenience, and avoiding prejudice...,” Id. at 769.

The Comries object to severance of the UIM claim from their bad faith claim, contending that allowing both cases to proceed together will save judicial resources and avoid delay and expense. Atlantic States cites numerous common pleas cases where severance has been ordered. The Comries’ UIM claim and the bad faith claim both arise from the collision of the Hendershot and Comrie vehicles and the insurance coverage available to the Comries. The elements that must be proven in the two causes of action, however, are quite different.

The purpose of uninsured/underinsured coverage is to enable the insured to recover under his policy of insurance for damages for which the negligent motorist is legally liable. Aetna Cas. & Sur. Co. v. IImonen, 360 So.2d 1271 (Fla. App. 1978); J. Appelman, Insurance Law and Practice, § 5071.45, p. 102-103 and cases cited therein. State Farm Mut. Auto. Ins. Co. v. Krewson, 764 F.Supp. 1012, 1014 (E.D.Pa. 1991). The Pennsylvania Motor Vehicle Financial Responsibility Act provides:

(c) Underinsured motorist coverage.- Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefore from owners or operators of underinsured motor vehicles...

75 Pa.C.S.A. §1731(c).

Underinsured motorist claims are similar to third party claims because the contract of insurance sets them up that way:

The traditional insuring agreement contained in the Uninsured and/or Underinsured Motorist section of the policy provides that the insurer agrees to pay to the insured the amount that the insured would otherwise be legally entitled to recover from the owner or operator of an uninsured or underinsured motor vehicle. Under that insuring agreement, the amount of the benefits the insured is entitled to recover from the insurer is measured by the third party tort recovery the insured would have been entitled to from the tortfeasor if that tortfeasor had his own liability coverage (for uninsured motorist claims) or had enough such coverage (for underinsured motorist claims).

Condio v. Erie Ins. Exchange, 899 A.2d 1136, 1144 (Pa. Super. 2006) appeal denied, 590 Pa. 668, 912 A.2d 838 (2006).

The UIM provision in this case provides as follows:

UNDERINSURED MOTORIST COVERAGEPENNS YLVANIA (NON-STACKED)
INSURING AGREEMENT
A. We will pay compensatory damages which an “insured” is legally entitled to recover from the owner or operator of an “underinsured motor vehicle” because of “bodily injury...”

Atlantic States brief.

The right to recover under a UIM endorsement is “derivative and conditional” and, consequently, any defense available to the alleged tortfeasor is also available to the insurer. Brace v. Strother, 90 N.C.App. 357, 360, 368 S.E.2d 447, 449, disc. Review denied, 323 N.C. 171,373 S.E.2d 104 (1988), overruled on other grounds, Ragan v. Hill, 337 N.C. 667, 447 S.E.2d 371 (1994). The UIM case then is very similar to a suit by the plaintiff against the tortfeasor.

The remedy for an insurer’s bad faith conduct has been codified at 42 Pa.C.S.A. § 8371, which provides:

§ 8371. Actions on insurance policies
In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

The bad faith statute extends to the handling of UIM claims, despite their similarity to third party claims.” Condio, supra at 1142.

To prove bad faith, a plaintiff must show by clear and convincing evidence that the insurer (1) did not have a reasonable basis for denying benefits under the policy and (2) knew or recklessly disregarded its lack of a reasonable basis in denying the claim. Terletsky v. Prudential Property and Casualty Insurance Company, 649 A.2d, 680, 688 (Pa. Super. 1999). Bad faith claims are fact specific and depend on the conduct of the insurer vis á vis the insured. Williams v. Nationwide Mutual Ins. Co., 750 A.2d 881, 887 (Pa. Super. 2000).

Id. at 1143. “[W]hen faced with a [UIM] claim, an insurance company’s duty to its insured is one of good faith and fair dealing.” Id. at 1145. Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1261 (Pa. Super. 2011).

While the UIM claim will be decided by a jury, the bad faith claim will be decided by the court. See Mishoe v. Erie Ins. Co., 824 A.2d 1153 (Pa. 2003) (there is no right to a jury trial for a claim of bad faith arising out of 42 Pa.C.S.A. § 8371). If the cases were tried together, evidence of Atlantic State’s bad faith in handling the claim would not be relevant for the jury’s determination of UIM liability and damages. The handling of the claim occurred after the collision and had nothing to do with the collision itself. The Comries’ evidence of the handling of their claim would be offered to reflect poorly on the insurer in the bad faith case and the UIM case if they were tried together. However, this evidence is not relevant in the UIM case. The UIM count will therefore be severed from the bad faith count and tried separately.

Atlantic States also requests a stay of discovery in the bad faith case until the UIM case has been concluded. It alleges that discovery sought in the bad faith claim will be prejudicial in defending the UIM claim, and it points to discovery requests already presented by the Comries. Those requests include requests for production of documents seeking:

-investigation reports prepared by Atlantic States’ employees or investigators evaluating the Comries’ claims and responding to their litigation. Plaintiffs’ request for production no.5.
-all statements, memoranda, or records made by parties to this lawsuit or their representatives. Id., no.9
-insurer’s activity logs reflecting any communication between the insurer, its employees or adjusters with the insured party in this case. Id. no. 10.

The question of whether it is appropriate to stay discovery in this situation has not been yet been decided at the appellate level. Judge Lally Green commented on the issue in her dissent in Gunn v. Auto. Ins. Of Hartford Conn., 971 A.2d 505 (Pa. Super. 2009):

Bad faith actions explore the process by which the insurer handles the underlying claim. That process may commonly include reliance on privileged and otherwise-confidential information. The trial court’s discovery order carries a significant risk that such information will be disclosed prematurely, before there is even an adverse ruling on the underlying claim. In my view, there would most often be no basis for a bad faith claim if the trial court rules in the insurer’s favor on the underlying claim. Yet, insurers will be routinely compelled to disclose confidential material during the underlying litigation simply because the plaintiff chooses to raise a bad faith claim along with the UIM claim. As the Wisconsin Court of Appeals explained:
In litigating a claim of bad faith, the [insured] will be entitled to discovery of [the insurer’s] work product and attomey/client material containing information relevant as to how the [insured’s] claim was handled. This information would include [the insurer’s] internal determination to deny benefits, its evaluation as to how a jury may value the [insured’s] claim and its approach to settlement. This information would not be available to the [insured] if they were proceeding solely on a claim for UIM benefits. Dahmen v. Am. Family Mut. Ins. Co., 2001 WI App 198, 247 Wis.2d 541, 635 N.W.2d 1,5 (Ct. App. 2001).
I am also concerned that insurers will be forced into unfair settlements as a result of having to litigate and provide discoveiy on both claims at the same time. These concerns go beyond the individual parties before this court. Indeed, they implicate the handling of all UIM/ bad faith claims litigated concurrently in Pennsylvania.

Id. at 513.

ORDER

And now, this 29th day ofMay, 2014, upon consideration of defendant’s motion to sever and stay, the motion shall be granted pursuant to P.R.C.P. 213, and it is ordered as follows:

1. The UIM claim in count I is severed from the bad faith claim in count II.

2. Further pleadings, discovery and trial in the bad faith claim in count II are stayed pending settlement or verdict or further order in the UIM claim in count I.

3. A status conference is scheduled for the 14th day of July, 2014 at 9:00 o’clock a.m., in chambers, Monroe County Courthouse, Stroudsburg, Pennsylvania to establish a discovery and trial schedule for the UIM portion of the case or counsel may submit a stipulation providing for a discovery and trial schedule.


author: LOVECCHIO, «/.,

text:
    Commonwealth v. Feerrar

      Anthony Ciuca, for Commonwealth.

      Bradley S. Hillman, for defendant.
    May 30, 2014
   LOVECCHIO, «/.,

— By information filed on February 14, 2014, defendant is charged with seven counts of simple assault, one count of Endangering the Welfare of Children and one count of Recklessly Endangering Another Person. The charges arise out of an incident that allegedly occurred on June 28, 2013. The defendant is alleged to have hooked up a barrel train consisting of 6 cars to an ATV that he “operated in a reckless manner, causing it to overturn” with six people on board including a mother and five juveniles. Allegedly, moments before the crash, the occupants pleaded for him to slow down, but he ignored those pleas and all of the barrels overturned as he made a sharp left-hand turn.

Defendant filed a petition for habeas corpus on March 18, 2014, alleging that the evidence was insufficient to demonstrate that any “crime was committed.” The defendant further alleged that the Commonwealth failed to establish the required element of bodily injury “and the defendant’s culpability and duty.”

A hearing on defendant’s petition was held before the court on May 13,2014. The Commonwealth introduced in evidence as Commonwealth exhibit 1, a transcript of the January 29,2014 preliminary hearing including its exhibits. As well, the Commonwealth called as witnesses Frederick Wilke and William Black, Jr. Finally, the Commonwealth introduced in evidence as Commonwealth exhibit 2, the operation manual for the barrel train and as Commonwealth exhibit 3, a video disc and transcript of Trooper Erik Barlett’s interview with the defendant on July 6, 2013 as recorded on Trooper Barlett’s in-car camera. During the preliminary hearing, defendant introduced certain exhibits and during the hearing on defendant’s petition for habeas corpus, defendant introduced defendant exhibit 4, additional paperwork regarding “the barrel train” from Wilke Enginuity, Inc.

The defendant is the owner of Happy Acres Resort in Lycoming County. Prior to June 28, 2013, defendant purchased 6 barrel trains from Wilke Enginuity, Inc. Frederick Wilke is the owner of Wilke Enginuity, Inc. and the developer of the barrel trains. Barrel trains are essentially carved out barrels with seats and pretend steering wheels secured over a metal frame with rubber wheels, which attach to each other to form a train-like vehicle. The barrel train, as it is referred to, is then pulled by a motorized vehicle. It is similar to an amusement park ride.

The barrel train was delivered to the defendant by Mr. Black in mid-June of 2013. As the barrel train was being delivered, Mr. Black gave to the defendant the operation manual. Defendant admitted to Trooper Barlett that prior to the incident, he obtained the manual from Wilke Enginuity. The defendant took it, laid it on the grass and subsequently directed his wife to take it inside to the office.

The operation manual was developed by Mr. Wilke, in conjunction with officials of the Pennsylvania Department of Agriculture, Bureau of Ride and Measurement Standards.

The operation manual includes a section entitled “Safety.” It directs that hills “ALWAYS” be avoided, that driving across a slope must be avoided, that any hill exceeding a slope of more than zero degrees is “considered unsafe”, that ascending or descending a hill is “considered unsafe”, that overturning is a concern “especially on wet surfaces”, and that rider’s hands and arms must remain inside the cart at all times. Another portion of the operation manual entitled “operation” notes that the maximum speed is five mph and that the operator of the tractor is a key component in the safety of the “barrel train ride.”

On the date in question, June 28,2013, at approximately 6:00 p.m., the defendant hooked up the six-barrel trains to an ATV. For approximately an hour or so, he operated the barrel train ride on the premises. Riders included some of the alleged victims.

Amy Haines, an adult individual, was vacationing at Happy Acres with her family on June 28, 2013. It had rained earlier in the day. At approximately 7:00 p.m., she, her one minor daughter and her daughter’s minor friend, agreed that the girls would ride the barrel train. The girls went for at least one ride before Ms. Haines got on the ride with them. The defendant drove all three to the lodge area where three additional minors joined the ride.

The defendant indicated that he was going to drive the train “up to the camp office.” In sequence starting with the first cart behind the ATV being driven by defendant and pulling the barrel train were: Britney, then age 17; Breanna, then age 7; Julia, then age 11 and Ms. Haines’ daughter; Ms. Haines; Levi, then age 9 and Ms. Haines’ son, and finally Tristan, then age 12.

The defendant drove the train through a few mud puddles and then up to the camp office. The ride, however then continued down a hill, “the first hill they were going down”, going “too fast”, “really fast”, “really, really fast” and/or “too fast for conditions”, and then around a comer when the carts started “teetering.” Some of the riders, apparently enjoying the ride, had their hands and arms up in the air out of the carts. Everyone then started screaming, screaming for the defendant to stop but the defendant kept “going for a while.” The train then tipped over, injuring the passengers. The defendant did not stop for approximately 30 to 40 yards from where it first started tipping. Following the crash, the defendant “left the area because he felt that he was afraid because...the other family members that were upset.”

According to the defendant, he was traveling down a hill, “going really slow”, driving through “a little puddle” and “going around a comer” when he looked back and saw that the train “tipped over.”

According to the testimony, Breanna suffered a really bad headache “that hurt”, Julia suffered a large burn to her right thigh from her knee to her hip, and multiple other abrasions “that really, really hurt” at the hospital while being cleaned. Levi suffered a gash in his hip, scuffed elbows and multiple abrasions across his hips. As well, his hands were “ripped open.” Tristan scraped up his knee which “kind of hurt.” Fie went to the hospital where it was cleaned. Brittney did not testify and no evidence was presented regarding injuries that she may have suffered. Amy Flaines suffered a broken left ankle; a large puncture wound in her left ankle; bruised ribs; a concussion; lacerations to her head and forehead; some of which required staples and/or stitches; and multiple abrasions.

“A petition for writ of habeas corpus is the proper vehicle for challenging a pretrial finding that the Commonwealth presented sufficient evidence to establish a prima facie case.” Commonwealth v. Carbo, 822 A.2d 60, 67 (Pa. Super. 2003) (citing Commonwealth v. Kohlie, 811 A.2d at 1013 (Pa. Super. 2012)). “While the weight and credibility of the evidence are not factors at this stage, and the Commonwealth need only demonstrate sufficient probable cause to believe that the person charged has committed the offense, the absence of evidence as to the existence of a material element is fatal.” Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983).

The Commonwealth must present sufficient evidence that a crime has been committed and that the accused is the one who probably committed it. Commonwealth v. Mullen, 333 A.2d 755, 757 (Pa. 1975). The evidence must demonstrate the existence of each of the material elements of the crimes charged. Wojdak, Id. at 996-97. Further, when deciding whether a prima facie case has been established, the court must view the evidence in the light most favorable to the Commonwealth and consider all reasonable inferences based on that evidence which could support a guilty verdict. Commonwealth v. McCullough, 86 A.3d 901, 905 (Pa. Super. 2014), quoting Commonwealth v. Landis, 48 A.3d 432, 444 (Pa. Super. 2012); see also Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (2005).

Counts 1,2, 3,4, 6 and 7 charge defendant with simple assault in violation of 18 Pa. C.S.A. §2701 (a) (1). With respect to the named victims, the counts relate as follows: 1 — Breanna, 2 — Julia, 3 — Levi, 4 — Tristan, 6 — Brittney, and 7 — Ms. Flaines. A person is guilty of simple assault if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” 18 Pa. C.S.A. § 2701 (a) (1).

The defendant first contends that there is insufficient evidence to support a prima facie case with respect to the bodily injury element.

“Bodily injury” is defined by statute as “[ijmpairment of physical condition or substantial pain.” 18 Pa. C.S.A. § 2301. While this definition is not particularly instructive, numerous cases have defined the boundaries of what constitutes bodily injury.

On one end of the spectrum, it is not a temporary hurt resulting from trivial contact. Commonwealth v. Kirkwood, 360 Pa. Super. 270, 520 A.2d 451, 454 (1987). As well, it has been found not to include pushing, shoving, slapping, elbowing, hair pulling and perhaps even punching and kicking that frequently occurs between siblings or other members of the same family. Interest of J.L., 327 Pa. Super. 175, 475 A.2d 156, 157 (1984). These types of hurts have been described as a “customary part of modem day living.” In Re: M.H. 758 A.2d 1249, 1252 (Pa. Super. 2000), citing Kirkwood, 520 A.2d at 454.

On the other end of the spectrum, bodily injury has been found where bmising has occurred, pain has been experienced for a period of time or one was “almost” knocked unconscious. In Re: M.H., 758 A.2d at 1252; Commonwealth v. Adams, 333 Pa. Super. 312, 482 A.2d 583, 587 (1984). In order for there to be bodily injury, however, the victim need not seek or obtain medical treatment or miss work. In Re: M.H., supra, citing Commonwealth v. Richardson, 431 Pa. Super. 496, 636 A.2d 1195, 1196 (1994).

In considering the testimony, the court concludes that for prima facie purposes, the Commonwealth has established the requisite bodily injury with respect to counts 1, 2, 3 and 7 but not 4 or 6. The hurt sustained by the alleged victims was well beyond temporary hurt from trivial contact. The pain, contusions, abrasions, lacerations and more serious injuries such as the concussion and broken ankle, under the circumstances of the alleged assault, constitute bodily injury. On the other hand, there was no testimony regarding count 6 — Breanna, and with respect to count 4 — Tristan, his scraped knee only “kind of hurt.”

The defendant further argues that his conduct was not intentional, knowing or reckless. The Commonwealth concedes that it is proceeding only on the reckless element.

“A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.” 18 Pa. C.S.A. § 302 (b) (3).

The court concludes that the Commonwealth has presented sufficient evidence to establish a prima facie case against the defendant on the charges of simple assault by recklessly causing bodily injury to the alleged victims.

The defendant was at the very least constructively aware of the manufacturer’s recommendations and directives with respect to the operation of the barrel train. The defendant knew that the train should be pulled only on a level surface and at a speed no greater than five miles per hour. He knew that hills always had to be avoided and that descending a hill was unsafe. He also knew that overturning was a concern especially on wet surfaces. Finally, he was aware that the safety of the passengers depended on his driving carefully and properly.

Ignoring the directives from the manufacturer, the defendant traveled at speeds too fast for conditions, traveled down a hill and slope, drove through a puddle and took a sharp turn, all causing the train to overturn. As well, he failed to supervise the riders by making sure they didn’t put their hands and arms up. He also failed to properly observe the ride. He drove more than a third of a football field after the riders started teetering.

Moreover, and even in the absence of his knowledge of the manufacturer’s suggestions, the defendant knew that of his six passengers, five were minors, two of whom were just 7 and 8 years old. He had operated the barrel train previously and it can be assumed that he was aware of its lack of stability if speed was increased, sharp turns were made or it traveled down hills.

Perhaps determinatively, while driving at a significant speed down a hill, through a puddle and around a curve, the defendant ignored the pleas of the riders to slow down and/or stop.

With respect to count 8, recklessly endangering another person, the defendant argues that the evidence is insufficient for prima facie purposes to conclude that defendant recklessly engaged in conduct which placed or may have placed the alleged victims in danger of death or serious bodily injury. The court cannot agree.

Indeed, and as set forth above, the defendant’s conduct under all of the circumstances was prima facie reckless. Moreover, it placed the riders in danger of death or serious bodily injury. None of them wore protective clothing such as helmets or jackets. The surface on which they were being driven was hard, wet and covered with grass and/ or dirt. The speed, the slope, the wet surface and turning were such that it was likely the train would overturn and expose all of the riders to being thrown out and onto the hard surface and/or even dragged along until the defendant stopped. The riders are fortunate that they were not killed or more seriously injured.

With respect to endangering welfare of children, count 5, the defendant argues that he did not violate a duty of care, protection or support. In order to be found guilty of such an offense, the Commonwealth would need to prove that the defendant was a guardian or other person supervising the welfare of children under the age of 18 and that he knowingly endangered the welfare of that child or children by violating a duty of care, protection or support. 18 Pa.C.S.A. § 4304.

The “duty of care protection or support” language as used in the statute is not “esoteric.” Rather, it is “easily understood and given content by the community at large.” Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770, 772 (1976).

In order to sustain a conviction for endangering the welfare of children, the Commonwealth must establish three elements. First, the defendant was aware of his or her duty to protect the child. Second, the defendant was aware that the child was in circumstances that could threaten the child’s physical welfare. Third, the defendant either failed to act or took action so lame or meager that such actions could not reasonably be expected to have protected the child’s welfare. Commonwealth v. Martir, 712 A.2d 327, 328-29 (Pa. Super. 1998).

Clearly, the Commonwealth has presented prima facie evidence to support all of these elements. By agreeing to drive the train, the defendant was aware of his duty to protect the children riding in it. Clearly, he was aware that the children were in circumstances that could threaten their physical welfare should he drive in such a manner as to cause an accident. He failed to drive in a proper manner so as to prevent the accident from occurring. As well, he proactively engaged in conduct which caused the injuries.

While the defendant vigorously argues that his conduct was at the very most negligent, the facts and inferences viewed in the light most favorable to the Commonwealth support a prima facie showing of reckless conduct. Defendant consciously disregarded the substantial risk that his passengers might be seriously injured. His speed, driving through a puddle, driving down a hill, allowing the riders to put their hands and arms out of the carts, ignoring their pleas to stop, and continuing to drive after the carts teetered and then tipped over demonstrates a gross deviation from the standard of conduct that a reasonable person would have observed under similar circumstances.

The court understands defense counsel’s arguments that the defendant may not have heard the yells or screams or understood that they were screams of fear or danger instead of squeals of delight, but these are issues for the jury. Furthermore, to credit defense counsel’s arguments at this stage of the proceedings would be tantamount to viewing the evidence in the light most favorable to the defendant, instead of the Commonwealth.

ORDER

And now, this 30th day of May 2014, following a hearing and argument, defendant’s petition for habeas corpus is denied.