text:
    Commonwealth v. Terzano

      Anthony Gill, for Commonwealth.

      Francis J. Genovese, for defendant.
    January 9, 2008
   HODGSON, P.J.,

Patrick Terzano (appellant) appeals to the Superior Court of Pennsylvania from the judgment of sentence imposed on him by this court on November 26, 2007.

FACTS AND PROCEDURAL HISTORY

On March 4,2006, Officer Richard J. Stegman of the Pennsylvania State Police, Bureau of Liquor Control Enforcement, having received a complaint regarding an establishment unlawfully selling liquor without a license, arrived at the Creekside Cabaret in Hatfield Township, Montgomery County at approximately 11:45 p.m. After paying a $20 cover charge, Stegman entered the premises and walked into a separate gentleman’s club known as Up the Creek, which is located within Creekside Cabaret. When Stegman reached the bar, he was informed by an unidentified female bartender that in order to purchase beer, he would have to pay a five dollar lifetime membership fee and sign his name along with a four-digit number in a book. Immediately following their conversation, Stegman entered an alias in a book and bought one beer for $4. Thereafter, Stegman met with appellant, who informed him that he owned the liquor, beer and wine on the premises but that it was intended for wine tasting purposes only.

Appellant was subsequently arrested and charged with unlawfully selling liquor, in violation of 47 P.S. §4-491(1). Appellant waived his right to a trial by jury and a bench trial was held on November 26,2007, after which this court found him guilty of said charge. Appellant subsequently appealed the order of this court on November 29, 2007. In accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellant to file a concise statement of matters complained of on appeal. Said statement was filed on December 17, 2007.

LEGAL DISCUSSION

Appellant raises the following issues on appeal:

I. This court erred in permitting the Commonwealth to introduce hearsay evidence; specifically, testimony concerning out-of-court statements made at the scene of the investigation by an unidentified female bartender.

II. The evidence introduced at trial, even if viewed in a light most favorable to the Commonwealth as the verdict-winner, was insufficient to establish defendant’s guilt beyond a reasonable doubt on the charge of the unlawful sale of liquor.

I. Hearsay Evidence

Appellant argues that this court erred in admitting testimony regarding the statements made by an unidentified female bartender who served Stegman at Up the Creek on March 4, 2006. Appellant maintains that such testimony constitutes impermissible hearsay.

Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Pa.R.E. 801. Such statements are inadmissible unless they fall within an exception provided under the Pennsylvania Rules of Evidence. One such exception includes admissions made by a party-opponent. A statement of this nature is admissible against a party if it is made by the party’s agent or servant concerning a matter within the scope of the agency or employment and is made during the existence of the relationship. Pa.R.E. 803(25)(D).

In the instant case, an unidentified female bartender encountered Stegman on March 4,2006 and informed him that in order to purchase beer, he would have to pay a $5 lifetime membership fee and sign his name in a book. At trial, appellant testified that he employed a female bartender to perform taste-testing exhibitions of the wine, beer and spirits that he produced. He further stated that on days she was unable to work, Brandy Albertini, who was another bartender he hired, would fill-in. Moreover, appellant admitted that he instructed a fee to be charged to all patrons who participated in the taste-testing experiments. This is supported by John McCusker’s testimony, who is an owner and general manager of Creekside Cabaret. At trial, McCusker stated that appellant employed two women who worked behind the counter at Up the Creek where there was wine and liquor kept. We find that this testimony establishes beyond a reasonable doubt that the unidentified female bartender who served Stegman on March 4,2006 was employed by appellant. Furthermore, her statements made on that evening directly relate to the scope of her employment since pursuant to appellant’s directions, she informed Stegman that before purchasing a beer, he would have to pay a fee. Although such statements are hearsay, we are able to determine that the unidentified woman was appellant’s agent since he testified on direct examination that he employed two women to work for him by serving alcoholic beverages he produced and such testimony was corroborated by additional evidence. On this basis, the statements made by the unidentified female bartender were properly admitted as an admission pursuant to Pa.R.E. 803(25)(D).

II. Sufficiency of the Evidence

Appellant also maintains that there was insufficient evidence presented at trial to establish his guilt beyond a reasonable doubt. In the instant case, appellant was found guilty of unlawfully selling liquor without a license, in violation of 47 P.S. §4-491(1), which provides:

“It shall be unlawful [f]or any person, by himself or by an employe or agent, to expose or keep for sale, or directly or indirectly, or upon any pretense or upon any device, to sell or offer to sell any liquor within this Commonwealth, except in accordance with the provisions of this act and the regulations of the board.” 47 P.S. §4-491(1).

In considering whether there is sufficient evidence to sustain appellant’s verdict, all evidence admitted at trial must be viewed in a light most favorable to the verdict winner and it must thereafter be determined if such evidence is sufficient “to enable the fact-finder to find every element of the crime charged beyond a reasonable doubt.” Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002).

In the instant case, appellant admitted at trial that he offered alcohol to patrons of Up the Creek. However, he maintained that in doing so, he was conducting taste-testing experiments of the alcohol he was serving. In support of his assertion, appellant claimed that food was offered to patrons and that surveys and information sheets were submitted to them for their opinions. Although a fee was charged in connection with serving the beverages, appellant asserted that such fees were intended to cover incidental costs in conducting his experiments and were not for profit-gaining purposes. However, Stegman testified that when he purchased a beer from Up the Creek on March 4,2006, he was not asked any questions concerning his beverage nor was he offered any food. Moreover, Stegman’s investigation did not uncover any question sheets or surveys pertaining to taste-testing experiments. Such testimony, which we find credible, establishes that the transaction that occurred on March 4, 2006 was a money-for-beer exchange which constitutes a sale of alcohol. Notwithstanding appellant’s testimony, there is no evidence presented which supports his contentions that he provided a taste-testing exhibition. On this basis, we find that appellant’s guilty verdict was properly supported by the evidence produced at trial.

CONCLUSION

Based on the foregoing, the undersigned respectfully requests that the instant appeal be dismissed.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Maroney v. Maroney

      Faith M. Lucchesi, for plaintiff.

      Jennifer P. Bierly, for defendant.
    January 3, 2008
   GRINE, J.,

Presently before the court is a petition for modification of current custody order and request for relocation brought by Reba Michelle Maroney (Mother). Mother asks the court to allow her to move with her son Grayson Maroney back to her hometown of Denton, Texas. Craig Maroney (Father) opposes this move, as it would take Grayson several hours away from him and make it difficult for Father to visit Grayson on a regular basis. A hearing was held on December 13, 2006. At the conclusion of the hearing, counsel was ordered to submit proposed findings of fact, proposed conclusions of law and briefs within 10 days. Both parties’ counsel did so in a timely manner. The court is now ready to make a decision. For the following reasons, the court grants Mother’s petition for modification of current custody order and request for relocation.

FINDINGS OF FACT

(1) Mother and Father were married on February 14, 1998, in Denton, Texas.

(2) Grayson is 9 years old.

(3) Grayson currently attends The Nittany Christian School in State College, Centre County, Pennsylvania, where he is enrolled in the third grade.

(4) Mother was bom and raised in Denton, Texas.

(5) Prior to moving to Pennsylvania with Mother and Grayson, Father had lived in Texas since he was 5 years old.

(6) Grayson was bom in Denton, Texas.

(7) Mother, Father, and Grayson lived in Denton, Texas until August 2005, when Father obtained employment in State College, Centre County, Pennsylvania.

(8) Father represented to Mother and Grayson that his new employment would enable them to eventually return to Texas.

(9) Father has since changed employment again, and is currently working for Time Warner in Virginia.

(10) While he lived in Texas, Grayson attended Liberty Christian School.

(11) Mother has arranged for Grayson to begin the process of returning to Liberty Christian School upon her return to Denton.

(12) Mother anticipates finding comparable work in the area surrounding Denton.

(13) Mother plans to initially live with her parents in Denton, and then find a residence for her and Grayson shortly thereafter.

CONCLUSIONS OF LAW

(1) “The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” This determination is to be made on a case-by-case basis. Speck v. Spadafore, 895 A.2d 606, 609 (Pa. Super. 2006) (quoting Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997), citing Myers v. DiDomenico, 441 Pa. Super. 341, 345, 657 A.2d 956, 957 (1995).

(2) In a custody dispute, a trial court must determine what arrangement is in the best interest of the child, conducting a searching inquiry into all facts and circumstances having an impact on the child’s physical, intellectual, moral, and spiritual well-being. Jackson v. Beck, 858 A.2d 1250, 1252-53 (Pa. Super. 2004).

(3) A child’s best interest is determined on a case-by-case basis. Saintz v. Rinker, 902 A.2d 509, 512 (Pa. Super 2006).

(4) “When a custodial parent seeks to relocate at a geographical distance and the non-custodial parent challenges move, custodial parent has the initial burden of showing that move is likely to significantly improve quality of life for that parent and children. In addition, each parent has burden of establishing the integrity of his or her motives in either desiring to move or seeking to prevent it. . . . The court must then consider . . . the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the non-custodial parent.” Gruber v. Gruber, 400 Pa. Super. 174, 186, 583 A.2d 434, 440 (1990).

(5) The best interests of children cannot always be separated from the interests of their custodial parents, as the custodial parent’s mental well-being affects his or her ability to parent their child. Thomas v. Thomas, 739 A.2d 206, 214 (Pa. Super. 1999).

(6) Determinations regarding child custody and relocation must be made on a case-by-case basis. Zoccole v. Zoccole, 751 A.2d 248, 251 (Pa. Super. 2000).

(7) “When faced with the decision whether to permit relocation, a trial court must consider these factors: (1) The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; (2) The integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and (3) The availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the non-custodial parent.” Speck v. Spadafore, 895 A.2d 606, 610 (Pa. Super. 2006) citing White v. White, 437 Pa. Super. 446, 451, 650 A.2d 110, 113 (1994) quoting Gruber v. Gruber, 400 Pa. Super. 174, 184-85, 583 A.2d 434, 439 (1990).

DISCUSSION

“The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” This determination is to be made on a case-by-case basis. Speck v. Spadafore, 895 A.2d 606, 609 (Pa. Super. 2006) (quoting Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997), citing Myers v. DiDomenico, 441 Pa. Super. 341, 345, 657 A.2d 956, 957 (1995). When the child custody issue involves the relocation of a custodial parent, there are additional factors which must be addressed. “When faced with the decision whether to permit relocation, a trial court must consider these factors: (1) The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; (2) The integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and (3) The availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the noncustodial parent.” Speck v. Spadafore, 895 A.2d 606, 610 (Pa. Super. 2006), citing White v. White, 437 Pa. Super. 446, 451, 650 A.2d 110, 113 (1994), quoting Gruber v. Gruber, 400 Pa. Super. 174, 184-85, 583 A.2d 434, 439 (1990).

The first. Gruber factor requires that the trial court weigh “ [T]he potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children, and is not the result of a momentary whim on the part of the custodial parent.” Speck, supra, 895 A.2d at 610. Here, it is obvious that the move which Mother wishes to make will result in several advantages to Grayson. He will be closer to his extended family of both Mother and Father, and will return to a familiar place where he still has friends. Additionally, he will most likely be able to return to the Liberty Christian School, the school he attended while he lived in Denton, Texas. Mother will benefit by being close to her family and friends. The best interests of children cannot always be separated from the interests of their custodial parents, as the custodial parent’s mental well-being affects his or her ability to parent their child. Thomas v. Thomas, 739 A.2d 206, 214 (Pa. Super. 1999). Mother has very few ties to the State College area, and only moved here to accommodate Father’s new job. Father no longer is employed in the State College area. Mother hopes to find a comparable job in the Denton area, and has already begun her job search. Additionally, there is no argument that this move is a “momentary whim” on Mother’s part. She will be returning to her hometown, a place where she intended to return to at the time she moved to Centre County. The court is satisfied that it is in the best interest of Grayson to return to Den-ton, Texas with Mother.

The second Gruber factor requires that the trial court consider “[t]he integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it.” Speck, supra, 895 A.2d at 610. The court has no doubt that the motives of both parties in this case are pure. Mother simply wishes to return to the place she feels is her and Grayson’s home. Father wishes to keep Grayson close so he can continue to have regular periods of partial custody with Grayson. Father no longer spends a significant amount of time in State College. This makes the decision even more difficult. The court does not see the need to force Mother to stay in a town to which she has no connections; especially given that Father no longer has any ties to this area either. It was made clear to the court that at all times Mother believed that her family would return to Denton, and that Father made these representations to her. It is unfair to now penalize Mother and Grayson for attempting to help Father have a more satisfying career and to try to keep her marriage together by moving away from her home. Both Mother and Grayson wish to have a close relationship with their extended family in Denton, and should be allowed to do so.

The third and final Gruber factor requires that the trial court analyze “[t]he availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the non-custodial parent.” Speck, supra, 895 A.2d at 610. While the court is aware that Father will have less time with Grayson when Grayson moves to Den-ton, it is apparent that it is still in Grayson’s best interest to make the move. Father currently is working in Virginia, and no longer sees Grayson as regularly as the original custody agreement allowed. Father has taken over a lot of responsibility at his current job, which has led to him working longer hours at the office in Virginia, and allowing for less telecommuting than he had originally told Mother he would be doing. Mother’s hope is that Father will move back to Texas, where his family also resides, in order to be closer to Grayson. It is obvious that it is Mother’s wish to have Father continue to have a close relationship with Grayson. The court does not expect that Father will just leave his current job and move back to Texas. The court does, however, believe that it was Father’s decision to leave a workplace which told him it would send him back to the area which he knew his wife and child wanted to return to. Additionally, the court is ordering that Grayson will spend a significant amount of time with Father during his breaks from school, so Father will still be able to have a meaningful relationship with Grayson.

ORDER

And now January 3,2008, after a hearing on the matter and a review of the parties’ findings of fact and conclusions of law, it is hereby ordered and decreed as follows:

(1) Mother and Father shall share joint legal custody of their minor child, Grayson Connor Maroney.

(2) Mother’s petition for modification of current custody order and request for relocation is granted. Father’s cross petition for primary custody is denied.

(3) Mother shall be permitted to relocate with Grayson to Denton, Texas. Accordingly, Mother shall have primary physical custody of the parties’ minor child subject to Father’s periods of partial physical custody as follows:

(i) Father shall have custody of Grayson from one week after school concludes for the summer until one week before school commences in the fall;

(ii) Father shall have custody of Grayson during Gray-son’s spring break from school;

(iii) Father shall have custody of Grayson over the Christmas holiday commencing at 2 p.m. on December 25 and concluding at 6 p.m. the day before school commences after the Christmas holiday;

(iv) Father may visit Grayson in Denton, Texas at any and all times as mutually agreed upon by the parties.

(4) Father shall provide for all transportation necessary to effectuate his periods of partial physical custody.

(5) Mother may visit with Grayson while he is in Father’s custody at times as mutually agreed upon by the parties.

(6) Both parents shall have full access to all relevant medical, dental, psychological, educational and religious records of the child. Each parent may obtain such records directly from the provider without the other parent’s consent. Parents shall provide each other with any records not easily obtainable by the other parent. Any school district in which the child attends school shall provide both parents identical information. The custodial parent shall provide to the non-custodial parent on a weekly basis, all school papers, projects, or other products of Grayson’s development, so as to allow a sharing of those items as fully possible.

(7) In implementing the provisions of this order, both parents shall be flexible and act in Grayson’s best interest. Both parents shall use their best efforts in presenting a united front to Grayson and in shielding Grayson from an awareness of his parents’ discussions and differences. Both parents shall use their best efforts to insure that their spouses, significant others and extended families cooperate in carrying out in the intent and spirit of this order. Each party shall encourage the child in the exercise of the other parent’s custody rights and stimulate the child to maintain a positive and healthy relationship with the other parent and the other parent’s family. Each party shall cooperate in giving the other reasonable notice of their respective scheduling as it may affect visitation and non-visitation to facilitate each of the parties’ individual planning and scheduling.

(8) Both parents shall be notified of, and invited to, major events in the child’s life, including, but not limited to; graduations, awards presentations, performances by the child, academic and athletic competition in which Grayson participates, and similar extracurricular activities.

(9) Each parent shall promptly notify the other of any serious accident or illness or any legal or educational emergency involving Grayson while in that parent’s custody. If the child is taking medications, that medication or a prescription for the medication shall be made available to each parent. The non-custodial parent shall be provided copies of medical assistance and insurance documents.

(10) Each parent must notify the other of any changes of residential or work address or telephone number.

(11) The parent who does not have custody shall be entitled to reasonable telephone contact with Grayson. Such contact shall not be monitored, or interrupted, by the custodial parent. In the event of long distance calls, the parents shall agree on specific times when Grayson will be available to receive calls.


author: GEORGE, J.,

text:
    Commonwealth v. Casey

      Shane Crosby, assistant district attorney, for Commonwealth.

      Thomas Nell, for defendant.
    October 19, 2007
   GEORGE, J.,

The defendant, Monica Y. Casey, appeals from this court’s denial of her PCRA petition on July 30, 2007. Casey challenges this court’s finding that her December 27,2005 acknowledgement of violating the conditions of her sentences of intermediate punishment was knowingly and voluntarily entered. Casey also challenges this court’s determination that she was not denied effective assistance of counsel based upon a claim of counsel providing misinformation to her.

The history of this matter involves a significant number of separate cases involving numerous proceedings. Although having a prior criminal record for conviction of theft by unlawful taking in Lancaster County, Casey’s involvement with the Adams County Court of Common Pleas did not begin until in 2000 when she was charged with a variety of misdemeanors of the first degree. On January 5,2001, she pled guilty to 17 separate counts of bad checks as a misdemeanor of the first degree. She also pled guilty to a count of theft by deception as a misdemeanor of the first degree. Shortly thereafter, on August 13, 2001, she pled nolo contendere to two counts of aggravated assault as felonies of the second degree. On the theft by deception conviction, Casey was sentenced to one to two years in a state correctional institution. On the 17 convictions for bad checks, Casey was sentenced to four years of intermediate punishment to run concurrently with each other, however, the four years were to be served consecutively to the sentence imposed for the theft by deception conviction. All of the intermediate punishment was ordered to be served on probationary phases III through V. On the aggravated assault convictions, former President Judge Oscar Spicer sentenced Casey under the mitigated guidelines to five years of intermediate punishment, all of which was to be served on probationary phases and run concurrent to Casey’s other sentences.

On March 21, 2003, Casey admitted violating the conditions of her sentences. The violations included, among other things, the commission of additional criminal offenses. She was re-sentenced by President Judge John Kuhn to aggregate, concurrent sentences of 60 months of intermediate punishment with 90 days on phase I (partial confinement). Additionally, on August 11, 2003, she entered a guilty plea to theft by deception as a misdemeanor of the first degree and on December 22, 2003, she entered guilty pleas to nine additional charges of writing bad checks, three of which were misdemeanors of the first degree and the six others being misdemeanors of the second degree. On each of the convictions, Casey was sentenced to sentences of intermediate punishment by President Judge John Kuhn which ran concurrent to the sentences imposed as a result of the March 21, 2003 revocation.

On April 13,2005, Casey pled guilty to possession of drug paraphernalia in York County. On that same date, she entered guilty pleas to 11 charges of theft, one charge of false identification to a police officer and one count of false impersonation. Guilty pleas resulted in a revocation proceeding held before this court on December 27, 2005 at which time Casey acknowledged violating the conditions of her supervision. Sentencing occurred on March 17, 2006 at which time Casey was sentenced to the aggregate sentence of four and a half to 10 years. At the time of sentencing, Casey was advised that the reasons for the sentence included Casey’s failure to take advantage of rehabilitative efforts by local authorities as well as the court’s concern for the protection of the community, taking into account her numerous criminal offenses committed subsequent to the original sentences in this matter.

Undoubtedly, PCRA relief is available following a revocation proceeding which resulted in a new sentence being imposed. Commonwealth v. Ballard, 814 A.2d 1242, 1244 (Pa. Super. 2003). One seeking post conviction relief on the basis of an alleged unknowing or involuntary admission bears the burden of proving by a preponderance of the evidence that the admission was involuntary and unknowingly entered. Commonwealth v. Carter, 318 Pa. Super. 252, 264, 464 A.2d 1327, 1334 (1983). Instantly, Casey challenges the voluntariness of her admission of violations of intermediate punishment claiming that plea counsel advised her, prior to the admissions, that she would receive concurrent sentences. At hearing, however, Casey failed to present any testimony in support of this claim. Perhaps the reason that evidence was lacking in this regard is because the claim is refuted by the record. Prior to her December 27,2005 acknowledgement, the court advised Casey of the following:

“Ms. Casey, you have an absolute right to a hearing in this matter. At that hearing the Commonwealth would be required to prove by a preponderance of the evidence that you violated the conditions of your intermediate punishment. If they are able to do so, you may be revoked and re-sentenced.
“You are serving a number of different sentences at this point. It appears you are serving 22 misdemeanors of the first degree, sentences on convictions for misdemeanors of the first degree, and two sentences on convictions for felonies of the second degree.
“If you are revoked from the intermediate punishment, you may be re-sentenced on each of those cases. The misdemeanors of the first degree carry with them maximum sentences of five years in jail and maximum fines of $10,000. The felonies of the second degree carry maximum sentences of 10 years in jail and fines up to $25,000.
“If those sentences are all run consecutive, by consecutive I mean following each other, that means that your supervision or your sentence may total 130 years and fines up to $170,000.” Transcript of proceedings of December 27, 2005, pp. 4-5.

Later, during that same colloquy, the court inquired as follows:

“The Court: Have you had enough time to talk to Ms. Rice about your decision to acknowledge today?
“The Defendant: Yes.
“The Court: Is there anything you wanted her to do on your behalf which she has not done?
“The Defendant: No.
“The Court: Are you satisfied with her representation?
“The Defendant: Yes.
“The Court: Are you making these admissions of your own free will, ma’am?
“The Defendant: Yes.
“The Court: Has anybody promised you anything in exchange for these admissions?
“The Defendant: No.
“The Court: Has anybody threatened you in any way to acknowledge the violations?
“The Defendant: No.
“The Court: Anybody promised you or threatened you in any way to give up your right to a hearing?
“The Defendant: No.
“The Court: Are you doing so because it is true that you have been convicted in York County of 11 separate criminal offenses?
“The Defendant: Yes.
“The Court: You also used cocaine while on supervision?
“The Defendant: Yes.
“The Court: You also failed to report as directed?
“The Defendant: Yes.” Transcript of December 27, 2005, pp. 7-8.

As Casey has failed to present any credible evidence supporting her allegation that her counsel misled her in regard to the ramifications of her acknowledgement of intermediate punishment violations, PCRA relief is inappropriate on this basis.

Casey’s second claim suffers from similar deficiency. Casey argues that her counsel was ineffective in misinforming her regarding the nature of the sentence imposed by the court thereby precluding her from a meaningful opportunity to exercise her appellate rights. Once again, Casey has failed to present credible evidence in support of her claim. At hearing, Casey essentially indicated that she “blacked out” during the sentencing proceeding and had no understanding as to the sentence imposed. Lacking in her testimony, however, was a claim that counsel misinformed her concerning the nature of her sentence. This court found her testimony to be both self-serving and incredible.

Moreover, the testimony is contrary to indications in the record. A review of the sentencing colloquy reveals that Casey interacted intelligently and rationally to conversation with both the court and counsel. Importantly, the record reveals acknowledgement by Casey that she understood the parameters of her sentence. Specifically, after Casey was advised of her post-sentence rights, the following exchange occurred:

“The Court: Do you have any questions about any of that, ma’am?
“The Defendant: How many years did you give me?
“The Court: Four and a half to 10.
“The Defendant: At Muncy?
“The Court: Yes.
“The Defendant: So you have just took 10 years of my life.” March 17, 2006 transcript, p. 15.

Since Casey failed, after hearing, to present any testimony in support of her claims, she has not properly proven any grounds alleged for PCRA relief. Moreover, the court discredited her limited testimony as self-serving. As such, she has failed to carry her burden of establishing grounds for relief by a preponderance of the evidence. A review of the proceedings reflects an intelligent and knowingly entered acknowledgement after opportunity to consult with counsel. The underlying factual basis for the finding of the violations of her sentence of intermediate punishment is undeniable as her convictions while serving sentence are unquestioned. Moreover, the record reveals that the court rejected the Commonwealth’s recommendation and exercised restraint in re-sentencing Casey. In light of her inability to be rehabilitated despite numerous attempts and the danger which she presents to society as evidenced by her continued recidivism, Casey’s sentence is not unreasonable. Accordingly, it is respectfully requested that the appeal in this matter be dismissed.

      . Although Casey raises this issue in her concise statement of matters complained of on appeal as a challenge to the knowing and voluntary entry of her “plea”, it is clear that her original pleas of guilty are not the subject of this PCRA petition. Rather, the PCRA petition focuses upon the revocation proceedings.


author: McINERNEY, J.,

text:
    Soltani v. Degnan

      Raymond J. Quaglia, for plaintiff.

      Ralph J. Kelly, for defendant.
    November 21, 2007
   McINERNEY, J.,

Plaintiff Mustafa Soltani appeals from the order granting defendant William Degnan summary judgment.

I. BACKGROUND

This case centers around a fire which damaged several units at a condominium complex. The controversy concerns the manner in which the condominium association handled the subsequent insurance claims and repairs. Soltani and Degnan are fellow unit owners at Rhawnwoods Condominiums located at 2727 Rhawn Street, Philadelphia, Pennsylvania. Degnan, at all times material to the present cause of action, was the sole officer of the Rhawnwoods Condominium Association (RCA). See deposition testimony of William Degnan, p. 10. Prior to the events at issue, Degnan was the treasurer of the RCA. Id. During the March 8, 2005 RCA annual meeting, the president and secretary resigned due to pending sales of their respective units. Id. at 11. At that time, none of the other owners were willing to seek nomination to the council. Id. at 14. The general members requested Degnan serve as the sole manager for the RCA. Id. at 15.

Approximately one week later, on March 13, 2005, a fire damaged units 11,12,13,14,15, and common areas. Soltani owns units 13 and 14; he and three additional owners were affected by the fire. After the fire, a proposal was sent by an adjuster to the insurance carrier. Id. at 34. Degnan, on behalf of the RCA, received the initial insurance offer. Degnan told Soltani that the RCA was planning on getting three separate requests for proposals from contractors to repair the fire damage. Id. at 36. Degnan further told Soltani that because one of Soltani’s units had the most fire damage, the RCA would choose two contractors and Soltani could choose the third. Id.

Degnan did not disclose any of the adjuster’s figures to the contractors so that the bidding process would not be influenced by outside financial information. Id. The contractor Soltani chose submitted his bid two months after Degnan received the other two bids. Id. at 39, see also, deposition testimony of Joseph Lees, defendant’s motion for summary judgment, exhibit G at 40-41. Soltani’s contractor also submitted the bid at a higher cost to the RCA than the other two bids. Degnan deposition at 40. The RCA selected one of the timely submitted, lower bids.

The RCA received the insurance funds and deposited them in a general account of the RCA. See Degnan deposition at 44, see also, affidavit of William Degnan, defendant’s motion for summary judgment, exhibit O. The contractors were paid from that general RCA account. Id. The repairs were eventually made and all the units became habitable once again.

Soltani filed his complaint in the present matter on •December 14, 2005 with counts of conversion, negligence, breach of fiduciary duty, and abuse of process. After the close of discovery, Degnan filed a motion for summary judgment. This court granted Degnan’s motion for summary judgment on September 13, 2007. Soltani now files this timely appeal.

II. DISCUSSION

Soltani raises the following issues in his appeal:

(1) This court erred in granting defendant’s motion for summary judgment on the multi-count complaint because plaintiff produced sufficient evidence of facts essential to each cause of action in the complaint so as to require the issues in each count to be submitted to a jury (i.e., conversion, negligence, breach of contract and fiduciary duty, usurpation of the lawful authority of the condominium association, contempt of court order to account, and abuse of civil process all to the financial loss and detriment of the plaintiff).

(2) This court erred in necessarily basing its decision on the oral deposition testimony of defendant and his witnesses, which is not sufficient evidence to establish the absence of a genuine issue of material fact required for summary judgment.

(3) The defendant had the burden of proof to justify his actions and self dealing and conversion of the insurance proceeds because he was acting ultra vires as a matter of law which precludes summary judgment.

(4) The allegations in the complaint substantiated by the documents required the court to compel an election of a counsel of three unit owners to run the business of the association in accord with the condominium declaration and/or the court should have appointed a receiver for the association.

(5) The motion court erred in granting summary judgment on the abuse of process claim when the lawsuits brought against the plaintiff were a matter of record and a jury could find the defendant lied under oath and perverted the legal process by suing the plaintiff in seven different lawsuits for the expressed purpose of causing him to ratify defendant’s wrongful conduct in usurping control of the association and the lawsuits were brought to “ruin” the plaintiff because of his ethnic background and not for the purpose stated in the pleadings.

See plaintiff’s 1925(b) statement. Soltani’s complains that this court erred by granting Degnan’s motion for summary judgment on all counts of his complaint. As such, we will address each cause of action separately below. We note at the onset that summary judgment is appropriate where there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. See Pa.R.C.P. 1035.1 et seq. (2007).

A. Conversion

Conversion is an intentional interference with a plaintiff’s right to use or possess his or her personal property. Chrysler Credit Corporation v. Smith, 434 Pa. Super. 429, 434, 643 A.2d 1098, 1100 (1994). A plaintiff has a cause of action in conversion if he or she “had actual or constructive possession of a chattel or an immediate right to possession of a chattel at the time of the alleged conversion.” Id. (citing Eisenhauer v. Clock Towers Association, 399 Pa. Super. 238, 243, 582 A.2d 33, 36 (1990)). A named loss-payee on a contract for insurance has an action for conversion against the insurer if the proceeds are wrongfully distributed. Id. at 435, 643 A.2d at 1101.

Soltani claims that Degnan is liable for conversion because Degnan used the insurance proceeds, meant for Soltani’s condominium unit, for his own personal use. However, Soltani has produced no evidence that Degnan ever deposited the insurance funds into a personal account or ever used the insurance funds for personal gain. The insurance contract between the RCA and Mitsui Sumitomo Insurance Group does not name Soltani as an insured on the policy. See insurance contract, defendant’s motion for summary judgment, exhibit D. The RCA is the named payee and the insurance proceeds from the fire went directly to the RCA. Soltani cannot maintain an action for conversion because he never had a legal right to the insurance funds and he has not produced a shred of evidence that Degnan used the insurance money in any illegal manner. On the contrary, there is uncontroverted evidence that Degnan, acting on behalf of the RCA, used the insurance proceeds for the sole purpose of repairing the damaged condominium units, including Soltani’s. Summary judgment on the conversion claim, therefore, was appropriate.

B. Negligence

Soltani alleges Degnan was negligent in his actions following the fire. In order to prevail in a negligence claim, a plaintiff must prove (1) the defendant had a duty, (2) the defendant breached that duty, (3) a causal connection between the breach and the resulting injury, and (4) the plaintiff suffered damages. Macina v. McAdams, 280 Pa. Super. 115, 120, 421 A.2d432, 434 (1980).

In this case, it is clear that Degnan owed a duty to the RCA and its members because he was the sole member of the council at the time of the fire. Soltani presents no evidence that Degnan breached this duty. Soltani specifically claims that Degnan delayed the repairs to the damaged units, failed to reimburse Soltani for his personal losses, failed to elect a council for the RCA, and failed to allow Soltani any input into his own claim under the RCA insurance policy.

The record belies Soltani’s claims. The record reflects Degnan regularly kept in contact with the unit owners through correspondence and meetings. Degnan promptly hired an adjuster and went about obtaining bids for the repair work. Other than his bold allegations, Soltani has produced no evidence to contradict or call into question Degnan’s attempt to elect a three-person council for the RCA. It was no fault of Degnan’s that he was unable to do so because there were no volunteers. Finally, any claim that Soltani makes about having a personal claim to any of the RCA insurance proceeds is erroneous because, as noted above, Soltani never had a personal interest or legal claim to the RCA insurance funds as he was never a named insured on the policy.

Although Soltani suffered a substantial loss in the fire, it cannot be said that Degnan was the cause of that loss. The evidence of record indicates Degnan did everything necessary to get the damaged units repaired in a timely manner. Soltani’s loss of rental income is irrelevant relative to the RCA because their policy did not cover such loss. Soltani was free to take out an additional insurance policy on his units but chose not to do so. Soltani’s claim of negligence is without merit and summary judgment on the claim was proper.

C. Breach of Fiduciary Duty

Soltani also claims that Degnan breached his fiduciary duty to Soltani by failing to account for the money received and fees paid, failing to properly adjust the loss from the fire, and refusing to allow Soltani to settle his own claim. A fiduciary relationship exists between two persons when one person is under a duty to act for or give advice for the benefit of another upon matters within the scope of the relationship. See Restatement (Second) of Torts §874, Comment (a) (1979).

Degnan was in a fiduciary position as the sole member of the RCA council at the time of the fire. Soltani, however, failed to produce any evidence in support of his allegations that Degnan breached his duty as council member for the RCA. Degnan provided a full accounting for the insurance monies received and disbursed as a result of the fire. He promptly hired an independent, professional adjuster after the fire and continued to work with the unit owners and contractors until the fire damage was repaired. Soltani was not able to pursue a separate claim under the RCA insurance policy because Soltani was not a named insured on the policy. Soltani was free to carry a separate insurance policy on his units but chose not to do so. Soltani cannot now claim that he was entitled to direct access of the RCA insurance proceeds. The insurance funds were used properly to repair all of the damaged units. Soltani failed to produce any evidence that Degnan breached a fiduciary duty and Soltani’s claim is without merit.

D. Abuse of Process

Abuse of process is the use of legal process against another primarily to accomplish a purpose for which it is not designed. Cruz v. Princeton Insurance Company, 925 A.2d 853, 856 (Pa. Super. 2007) (citing Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. 2002)). In order to prove an abuse of process claim, plaintiff must prove that defendant used a legal process against the plaintiff, primarily to accomplish a purpose for which the process was not designed, and harm has been caused to the plaintiff. Id.

Soltani claims that Degnan is liable for abuse of process as a result of the previous lawsuit in which the RCA successfully petitioned for injunctive relief. There is no question that seeking a petition for injunctive relief given the facts of this case is exactly the purpose for which the process was designed. Soltani brought on much of these hardships himself by refixsing to cooperate with the RCA and Degnan. Soltani was interested in obtaining a cash payout after the fire from the insurance proceeds even though he was not named as an insured on the policy. Degnan was concerned with getting the damaged units repaired in a timely manner and it was Soltani who delayed the process by insisting that his contractor include loss of rental income in the bid.

Soltani also argues that this court was required to compel the RCA to elect a three-person council or to appoint a receiver for the RCA. Soltani never asked for this relief in this complaint, he sought strictly money damages. Fxxrther, as noted above, the RCA and Degnan acted properly throughout the course of their dealings with Soltani. It would have been improper for this court to sua sponte order the RCA to hold elections. There is no valid claim for abuse of process in this case and, therefore, summary judgment was appropriate. For the foregoing reasons, this court’s order granting Degnan’s motion for summary judgment should be affirmed.

      . Soltani did not maintain his own insurance policy for his units.

      . Soltani’s contractor had been instructed by Soltani to inflate the bid to include Soltani’s loss of rental income despite the contractor’s protests that including those figures would make the bid too high to win the contract. Lees deposition at 18-21.

      . The RCA received three payments from the insurance carrier totaling $199,301.92. The total costs of all expenses related to the fire totaled $196,150.10. See affidavit of William Degnan, defendant’s motion for summary judgment, exhibit O.

      . The present case is not the first instance of litigation between Soltani, Degnan and the RCA. On August 29,2005, plaintiff filed suit and filed a petition for preliminary injunction against the RCA. Court of Common Pleas, Philadelphia County, August term 2005, no. 3700. On October 31,2005, the petition for injunctive relief was dismissed. On November 18,2005, the RCA filed an answer and counterclaim to Soltani’s complaint. The RCA alleged that it was owed back fees and assessments. The RCA also alleged that it was owed legal fees incurred as a result of the ongoing litigation. On November 18,2005, the RCA also filed an emergency petition for injunctive relief to gain access to Soltani’s unit to complete the repairs. Soltani had refused the RCA access to his unit which had slowed the restoration process for his unit and the other units and common areas affected by the fire. On November 18, 2005, the RCA’s petition for a preliminary injunction was granted. On November 30, 2005, the RCA was granted a permanent injunction and Soltani was ordered to grant the RCA and its contractors access to his unit. The remaining counts in that case are on deferred status pending the outcome of the present action.

      . An amended complaint was later filed on June 26,2006 containing more specific allegations in the negligence count.

      . Maybe because they did not want to open themselves up to suit such as the case before us.


author: MINORA, J.,

text:
    Adriansen v. Marworth

      Joseph P. Lenahan, for plaintiff.

      Daniel J. Rovner, for defendants.
    June 18, 2007
   MINORA, J.,

INTRODUCTION

The instant issue before the court involves a petition to appeal two decisions rendered by the special trial master regarding discovery disputes. The discovery issues concern the protections from certain discoverable material that may apply to bar discovery pursuant to the Peer Review Protection Act, (PRPA), 63 P.S. §425.1 et seq. The special trial master decisions under review are dated May 3, 2006 and June 6, 2006. The parties have presented both written and oral arguments to the court rendering this matter fit for adjudication.

STATEMENT OF THE CASE

This court rendered a previous decision on discovery for this case on July 14,2006. We incorporate the findings of that prior opinion here, beginning with the factual posture of the case. Allegedly, Gary Williams, now deceased, was admitted to Marworth, a licensed drug and alcohol treatment facility in Waverly, Pennsylvania, on June 26, 2000. Additionally, it is asserted by the plaintiff that Marworth is affiliated with defendant, Geisinger Health Systems Inc. and defendant, Geisinger Clinic, which worked in conjunction with defendant Marworth to offer medical treatment to patients at the facility while undergoing drug and alcohol rehabilitation. Upon decedent’s admittance to the facility, he was entered into the Level III program, which is the highest level of treatment available. (See plaintiff’s complaint ¶15.) As declared in the complaint, the initial impression the staff received from the decedent was that he showed signs of anxiety and alcohol withdrawal upon entry. (See plaintiff’s complaint ¶16.) On the day of admittance decedent was administered 90 mg of Phenobarbital to reduce his withdrawal symptoms of nausea, tremors, sweats, and anxiety at several intervals; 5:45 p.m., 8 p.m., and 10:30 p.m. (See plaintiff’s complaint ¶¶18-20.) The decedent received additional doses of Phenobarbital again on June 27, 2000 at four-hour intervals. (See plaintiff’s complaint ¶23.) Reportedly, the decedent did not exhibit positive changes after each treatment according to his patient progress report. (Id. at ¶23.)

The following day, June 28, 2000, the deceased was administered additional doses of Phenobarbital at varying times, while he allegedly exhibited no improvement, but instead delusions, disorientation and hallucinations. (See complaint ¶¶24-30.) Due to this behavior, a counselor of the Marworth staff contacted the deceased’s family to remove him from the facility which they declined. (Id. at ¶¶30, 31.) In the early evening hours of June 28, 2000, members of the facility contacted a nearby hospital (Community Medical Center) regarding the decedent’s behavior/condition, yet there is no documentation of recommended course of treatment. (Id. at ¶32.) It is reported that at approximately 8:30 p.m. the decedent crawled out his window and appeared tapping on the outside of the Marworth counseling office window. (Id. at ¶35.) After decedent was returned to his room, another incident occurred that evening displaying signs of confusion and disorientation. (Id. at ¶37.) During the early morning hours of June 29, 2000, the decedent requested and was administered sleep medications. (Id. at ¶38.) The progress notes indicate that the decedent was asleep and in bed at 2:15 a.m. and 3:10 a.m. (Id. at ¶39.) At 6:10 a.m., on June 29, 2000, Sue Blackledge, a nurse’s aide entered the decedent’s room to record his vital signs, but he was missing; at this time Blackledge alerted the facility staff that the decedent had “eloped.” (Id. at ¶¶40, 41.) Both the Waverly Police and the State Police were contacted and conducted an investigation in an effort to locate the decedent.

On September 30, 2000, a group of individuals were hunting in a wooded area in Waverly, when they found the decedent’s body, lying face down, in a small creek. {Id. at ¶49.) Later, an autopsy was performed on decedent, yet due to the “extensive postmortem decomposition” of the body, the cause of death was undeterminable. {Id. at ¶51.)

This cause of action was commenced by the plaintiff, Susan Adriansen, sister and administrator of the estate of Gary Williams, deceased. A writ of summons was entered on May 18,2001, which was later reinstated on July 24, 2001. The complaint was filed on November 11, 2001, thereby instituting this wrongful death and survival action including the following: one count of negligence against defendant, Marworth; a second count of vicarious liability asserted against Geisinger Clinic; and a third count, also asserting vicarious liability against Geisinger Health Systems Inc. Contained within count one asserted against defendant Marworth are allegations of negligence on the part of the medical staff, physicians and nurses in regard to the decedent’s need for medical attention, his adverse reaction to medications provided, failure to prevent the elopement among a litany of other errors.

DECISIONS OF THE SPECIAL TRIAL MASTER

The decisions of the special trial master at issue involve the proper classification of information to determine whether the information is discoverable or protected from discovery under the PRPA, discussed supra.

(a) Special Trial Master Campagna’s May 3, 2006 Decision

Special Trial Master Campagna filed two decisions on May 3, 2006 and June 6, 2006, respectively. In his May 3 decision, Special Trial Master Campagna granted defendant’s motion to prevent the disclosure of the “root cause analysis of sentinel event” prepared by the defendant following the decedent’s disappearance. In addition, Special Trial Master Campagna found that recorded employee interviews on computer disk were not discoverable under the PRPA.

(b) Special Trial Master Campagna’s June 6, 2006 Decision

In his June 6, 2006 decision, Special Trial Master Campagna granted plaintiff’s motion for sanctions. Plaintiff requested that sanctions be issued against defense counsel because plaintiff’s counsel had taken depositions of witnesses, unaware of the other witnesses that may have information on the events at issue. Plaintiff’s counsel argued that its deposition strategy was adversely affected without full knowledge of the witness list.

Special Trial Master Campagna granted plaintiff’s motion for sanctions against defense counsel. Defense counsel was ordered to pay transcript costs for the depositions of three witnesses, and counsel fees of $250 for each of these depositions.

APPEALS FILED IN RESPONSE TO THE DECISIONS OF THE SPECIAL TRIAL MASTER

Following the special trial master’s decisions, on June 14,2006, plaintiff filed a motion for de novo appeal for both the May 3,2006 and June 6,2006 decisions of the special trial master, which plaintiff consolidated. Plaintiff filed a supporting brief on July 18,2006. Defendant filed a memorandum of law in response to plaintiff’s motion for de novo appeal of the May 3 and June 6 decisions, consolidated, on September 5, 2006. On September 11,2006, plaintiff filed a response to defendant’s memorandum of law filed in response to plaintiff’s motion for de novo appeal.

Concurrently, on June 16, 2006, defendant filed its own motion for de novo appeal of the June 6, 2006 decision of the special trial master. Defendant’s memorandum of law in support of its motion for de novo appeal was included in its memorandum of law in response to plaintiff’s motion for de novo appeal filed on September 5, 2006, and noted supra. Argument was held before this court on October 3, 2006. The court granted the parties 45 days from the date of argument to submit a statement of joint findings of fact. In addition, defense counsel submitted the documents and recorded interviews in dispute for this court’s in camera review. The matters are now ripe for disposition.

STANDARD OF REVIEW

We find considerable guidance in our July 14, 2006 decision in this case also involving discovery issues. As applied in our prior decision, the proper scope of our discovery, articulated in Yadouga v. Cruciani, 66 D.&C.4th 164, 167 (Lacka. Cty. 2004), was provided as follows:

“The purpose of the Pennsylvania ‘discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits.' Dominick v. Hanson, 753 A.2d 824, 826 (Pa. Super. 2000). To that end, Pa.R.C.P. 4003.1 provides that ‘as a general rule, discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.’ George v. Schirra, 814 A.2d 202, 204 (Pa. Super. 2002). A discovery request is not objectionable on the grounds that it seeks ‘an opinion or contention that relates to a fact or the application of law to fact’ or that ‘the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to discovery of admissible evidence.’ Pa.R.C.P. 4003.1(b), (c). Furthermore, any limitations or restrictions upon discovery should be construed narrowly. McAndrew v. Donegal Mutual Insurance Co., 56 D.&C.4th 1, 7 (Lacka. Cty. 2002); Schwab v. Milks, 8 D.&.C.4th 557, 558 (Lacka. Cty. 1990).”

We first note that all parties have properly brought their discovery appeal to the decision of special trial master before this court pursuant to Lacka.Co.R.C.P. 4000.1(b) which permits an order of a STM to be appealed de novo by presentation of a motion to the court to be filed within 10 days of the appealed decision and upon proof of payment to the court of appropriate costs. We find that the present appeals are properly before this court.

Having articulated the applicable standard of review, we now consider the arguments concerning Special Trial Master Campagna’s decisions of May 3,2006 and June 6, 2006. Plaintiff argues that Special Trial Master Campagna’s decision finding the timeline of events surrounding decedent’s disappearance and recorded interviews of employees related to the events should be reversed. Plaintiff’s argument is three-fold: (1) defendant does not fit the definition of a “professional health care provider” under the PRPA, (2) the employee interviews are recordings and are therefore not entitled to protection under the PRPA, (3) the information plaintiff seeks was prepared for the purpose of creating an incident report that does not merit peer review protection.

We consider each of these arguments in turn.

(1) Defendant Is a “Professional Health Care Provider” Under the PRPA

In our prior decision rendered on July 14, 2006, we previously determined that defendant Marworth was included in the definition of “professional health care provider.” We see no reason to disrupt our own past reasoning which acts as the law of the case.

Peer review protection is enjoyed only by those considered a “professional health care provider.” 63 P.S. §425.2. We are satisfied that the Marworth defendant is provided protection under the PRPA as it is licensed by the Pennsylvania Department of Health, Office of Drug and Alcohol Programs, and is accredited by the Joint Commission on Accreditation of Health Care Organizations (JCAHO).

The PRPA functions as a self-examination tool by which professional health care providers under the act may examine, critique and possibly alter any actions or responses to situations where the institution finds through peer review that improvement is needed. The PRPA provides confidentiality protections for events and reports that demonstrate changes have been made. As directed by the PRPA and due to the nature of the practice of medicine and the level of skill necessary to practice medicine and related areas, medical professionals and health care facilities are in the best position to police their own activities. Corrigan v. Methodist Hospital, 857 F. Supp. 434 (E.D. Pa. 1994), re’hrg denied; Dodson v. Deleo, 872 A.2d 1237 (Pa. Super. 2005). Protection is provided under PRPA to those items of discovery subject to peer review proceedings to ensure “comprehensive, honest, and potentially critical evaluations of medical professionals by their peers.” Dodson, supra at 1242; 63 P.S. §§425.1-425.4. Yet, there are limitations to the protections granted by the PRPA. The Dodson court noted that the Peer Review Protection Act (PRPA), which protects documents related to peer review from discovery or introduction into evidence in civil action against a professional health care provider, does not protect non-peer review business records, even if those records eventually are used by peer review committee. 63 P.S. §§425.1-425.4. In Dodson the discovery documents under scrutiny were sought in a medical malpractice action and were generated and used only by the hospital’s peer review department and therefore were found to be privileged under the PRPA. The particular documents subject to the court’s review included credentialing records and reports which charted problems and potential problems with the alleged negligent doctor’s performance while working at the medical facility. The court concluded, after a review of the reports that the documents were created as peer review material and therefore subject to protection of the PRPA.

At 63 P.S. §425.4 entitled, “confidentiality of review organizations records” as the very first sentence the statute states, “[t]he proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee.” (emphasis added) Also at 63 P.S. §425.2, “peer review” is defined as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers.” A “review organization” is defined as “any committee engaging in peer review.” 63 P.S. §425.2. Despite this broad definition, the confidentiality afforded peer review organizations is neither absolute nor all-encompassing. At 63 P.S. §425.4 noted supra, the statute goes on to say that “information, documents or records otherwise available from original sources are not to be construed as immune from discovery.” (emphasis added)

Consistent with our prior decision of July 14, 2006, we refuse to entertain any argument that Marworth is not included in the definition of “professional health care provider” under the PRPA. Plaintiff’s argument is already subject to an adverse decision in this case and is therefore dismissed by this court as our prior decision which found Marworth to be a “professional health care provider” remains the law of this case.

(2) The Recorded Employee Interviews Are Not Peer Review Protected

Plaintiff argues that the recorded interviews of the employees who had contact with the decedent are discoverable because the PRPA does not provide for protection of information in recorded form. Special Trial Master Campagna found that the disks with recorded employee interviews “were intended to improve care rendered to patients and to educate the operators and employees of the institution in that regard.” May 3, 2006 decision of the special trial master at 2.

The admissibility of employee interviews was considered in Estate of Spangler v. Jameson Health System, 65 D.&C.4th 129 (Lawrence Cty. 2003). In that case, the plaintiff asked the court to compel the defendant to disclose statements made by nurse employees who had contact in treating the decedent in the days before his death. The defendant hospital argued that the PRPA protected the employee nurses’ statements from discovery. Plaintiff argued the nurses’ statements were discoverable as an “original source” and were therefore not protected under the PRPA.

The court explained the function of the PRPA. The court noted the purpose of the PRPA and exceptions to the protections provided in the PRPA in stating:

“The purpose of that provision of the PRPA is to promote heath care industry self-regulation by protecting peer review proceedings from public scrutiny. Sanderson v. Frank S. Bryan M.D. Ltd., 361 Pa. Super. 491, 494, 522 A.2d 1138, 1139 (1987). The strong public policy rationale for that protection is to encourage ‘free and frank discussion by review organizations’ and avoid a chilling effect by preventing the imposition of civil liability based upon the testimony and documents presented to the peer review organization. Id. at 496, 522 A.2d at 1140. However, the Pennsylvania Legislature did not want to immunize relevant evidence simply because it was presented to a peer review organization; thus, section 425.4 of the PRPA has an exception for ‘information, documents or records otherwise available from other sources.’ 63 P.S. §425.4. The second exception provides that individuals who testified to or were members of a peer review committee can be required to testify in a civil action about matters of which they have personal knowledge, but not about the proceedings or findings of the committee. Id.” Estate of Spangler v. Jameson Health System, 65 D.&C.4th at 132. (emphasis added)

Having reviewed numerous written documents and recorded compact disks recordings in camera, we find it undisputed that employee interviews were conducted for the purpose of completing the root cause analysis of the sentinel event. Obviously facts need to be gathered before a report may be generated. It is clear the employees who had provided the interviews have their own information as original sources. Of course, any subsequent report generated as a result of this work or alteration in procedures implemented as a result of the investigation of the mistakes made would also merit protection under the PRPA. See 63 P.S. §425.4, supra at note 7. Statements of witnesses having first-hand encounters with the decedent are distinguishable because they are the basis on which such remedies may be made. These statements are the exact type of information that is considered an original source, which is not protected under the PRPA. Accordingly, plaintiff may choose to depose those individuals noted in footnote four and any other similarly situated witnesses. They can also be compelled to testify regarding their own original source knowledge. They cannot, however, be required to testify for discovery purposes or in a civil action about their appearance, their peer review proceedings not original source, or about the findings of the committee. Spangler, supra at 132.

Of course, how the peer review committee analyzes this information and the changes made in response to this information is likewise protected under the PRPA. It is not the facts that the peer review committee work with that are protected, rather it is what the peer review committee does with these facts that is protected. These subsequent committee changes or actions either in the form of changes to procedure, new regulations, new responses of employees, standard operating procedures and the like are also PRPA protected. Therefore we sustain the finding of Special Trial Master Campagna and hold the recorded employee interviews are protected by the PRPA as “the proceedings and records of a review committee,” and are therefore protected and not subject to discovery. Having concluded, however, as noted above, plaintiff can still conduct their own interviews for discovery of these individuals as original sources.

(3) The Root Cause Analysis Report Is Not an Incident Report; PRPA Protects the Root Cause Analysis Report From Discovery

We find considerable guidance in the decision of Special Trial Master Campagna on this issue. Special Trial Master Campagna found that the timeline of events qualified for peer review because “[djiscussed in the documents are the various factors in play and their causes and effects as elements in the total scenario together with possible methods of risk reduction.” May 3, 2006 decision of STM Campagna at 2.

From our own in camera review of the “Root cause analysis of sentinel event” submitted by the defendant, we find that this document was indeed prepared for the purpose of peer review and is therefore deserving of protection under the PRPA. While the document does include a timeline, more importantly, it also discusses various “Risk reduction strategies.”

While we find Special Trial Master Campagna’s reasoning sound, his ruling does not completely bar plaintiff from discovering two categories of information: (1) incident reports, and (2) information that is discoverable from its original source. In Dodson v. Deleo, cited supra, 872 A.2d at 1244, the court distinguished between information rendered peer review protected and information that is not:

“That some of the information contained within these documents may be available from other sources does not alter the result. Clearly, a hospital cannot create protection for a document simply by sending it to the peer review committee. Atkins [v. Pottstown Memorial Med. Center, 430Pa. Super. 279, 634 A.2d 258 (1993)]. On the other hand, documents generated by a peer review committee specifically for use in the peer review process are not discoverable simply because some of the information contained therein is available elsewhere. Young [v. The Western Pennsylvania Hospital, 722 A.2d 153 (Pa. Super. 1998)]. To hold otherwise would have a chilling effect on the peer review process and would clearly run afoul of the purpose of the statute.”

The Dodson court provided alternative classifications that would render information either peer review protected or exempt from peer review protection depending on the nature of the information. We therefore determine the written report sought by the plaintiff is peer review protected under the PRPA as determined by Special Trial Master Campagna. The report is therefore not discoverable and Special Trial Master Campagna’s decision should not be disturbed.

(4) Sanctions

Plaintiff and defendant filed cross-appeals to Special Trial Master Campagna’s determination that sanctions were appropriate against defense counsel for counsel’s failure to disclose a complete list of possible witnesses prior to plaintiff’s counsel taking witness depositions. As stated supra, counsel for defendant was ordered to pay the transcript costs, plus attorney’s fees in the amount $250 for each of three depositions.

Plaintiff argues the sanctions against defense counsel are inadequate to meet the cost incurred by the plaintiff in taking the prior witness depositions that need to be re-taken. Conversely, defendant argues that no sanctions should be imposed because they continuously informed plaintiff’s counsel of the ongoing peer review investigation.

Our consideration of whether sanctions are appropriate against defendant depends not only upon our decisions regarding the admissibility of both the recorded interviews and the “Root cause analysis of sentinel event” written report prepared by defendant. Our finding that employee depositions are still available to the plaintiff as original source material also leads to the conclusion that counsel for the plaintiff may need to retake depositions in light of this new information. “The imposition of such sanctions [pursuant to Pa.R.C.P. 4019(c)(2)] is vested in the sound discretion of the trial court . . . .” Schweikert v. St. Luke's & Hospital of Bethlehem, 886 A.2d 265, 268 (Pa. Super. 2005).

We therefore determine that Special Trial Master Campagna’s decision imposing sanctions on defense counsel was proper, however no record exists for us to be able to determine the reasonableness of counsel fees awarded to the plaintiff as a sanction. Accordingly, we sustain Special Trial Master Campagna’s decision to award sanctions however the appropriate amount, either more or less, needs to be determined after a proper record and time itemization is made.

An appropriate order follows.

ORDER

And now, on June 18, 2007:

(1) The May 3,2006 decision of Special Trial Master Campagna is affirmed; the seven disks containing recorded employee interviews are found to be protected under the PRPA, 63 P.S. §425.4; the “Root cause analysis of sentinel event” written report is also found to be protected under the PRPA, 63 P.S. §425.4.

(2) The June 6,2006 decision of Special Trial Master Campagna awarding sanctions to the plaintiff is affirmed in an amount to be determined later.

      . Marworth is licensed by the Pennsylvania Department of Health, Office of Drug and Alcohol Programs, and is accredited by the joint Commission on Accreditation of Health care Organization (JCAHO).

      . As alleged by the plaintiff, Phenobarbital is administered to help control seizures and its typical effect is to induce sleep. Yet, the drug has an adverse reaction on some individuals causing them to experience nervousness and agitation. (See plaintiff’s complaint ¶21.)

      . Susan D. Adriansen was duly authorized by the Register of Wills of Bergen County, New Jersey, as personal representative of the estate of Gary Williams and issued letters of administration on December 1, 2000.

      . The witnesses were named in STM’s decision: Margharetta Sakosky (deposition taken on October 13,2004), Dana Craig (deposition taken on March 16,2005) and Mari Walker (deposition taken on April 20, 2005).

      . Plaintiff initially filed the motion for de novo appeal to Special Trial Master Campagna’s May 3, 2006 decision on May 11, 2006. Following Special Trial Master Campagna’s June 6, 2006 decision, plaintiff filed a second motion for de novo appeal which plaintiff then consolidated with the first motion for de novo appeal.

      . Section 63 P.S. §425.2 provides:
      “ ‘Professional health care provider’ means:
      “(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
      “(i) a physician;
      “(ii) a dentist;
      “(iii) a podiatrist;
      “(iv) a chiropractor;
      “(v) an optometrist;
      “(vi) a psychologist;
      “(vii) a pharmacist;
      “(viii) a registered nurse or practical nurse;
      “(ix) a physical therapist;

        “(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
      “(xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility; or
      “(2) individuals licensed to practice veterinary medicine under the laws of this Commonwealth.”

      . Section 63 P.S. §425.4 entitled “Confidentiality of review organization’s records” states:
      “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinion or other actions of such committee or any members thereof: Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be preventedfrom testi

        Jying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings” (emphasis added)


author: PICCIONE, J.,

text:
    A. Perrotta Contracting Inc. v. Four Brothers

      Ronald R. Retsch, for petitioner.

      Arnold Shiflett, pro se.
    November 1, 2007
   PICCIONE, J.,

In May of 2006, A. Perrotta Contracting, Inc. (petitioner) and Four Brothers and Arnold Shiflett (collectively referred to as respondent), entered into a subcontractor’s agreement. This agreement contained a provision that should a dispute arise that the parties could not resolve, such dispute would be decided in accordance with the Construction Industry Rules of the American Arbitration Association and the Uniform Arbitration Act of Pennsylvania. A dispute did arise that the parties were unable to resolve. The parties availed themselves of arbitration through the American Arbitration Association and a hearing was held before an arbitrator on May 10-11, 2007 to settle such dispute. Although the hearing was only scheduled to last one day, for various reasons it lasted two days. On June 5, 2007 the arbitrator made a written award in favor of the respondent. At the hearing held on October 1, 2007 before the court, the court heard testimony that the arbitrator fell asleep intermittently throughout both days of the hearing, which included sleeping during the testimony of several witnesses.

Chapter 73 of the Pennsylvania Judicial Code governs statutory and common-law arbitration. 42 Pa.C.S. §§7301-7342. Sections 7301-7320 of subchapter A governs statutory arbitration proceedings and are known collectively as the Pennsylvania Uniform Arbitration Act (UAA). Sections 7341 and 7342 of subchapter B apply to common-law arbitration proceedings. There are two requirements for an arbitration to be considered statutory arbitration rather than common-law arbitration: (1) that the agreement to arbitrate be in writing; and, (2) that the writing expressly provide for arbitration under sub-chapter A (which governs statutory arbitration) or any other similar statute. The court finds these two requirements were met in the instant case because the petitioner and respondent engaged in a written agreement that expressly provided for arbitration under the Uniform Arbitration Act of Pennsylvania.

Under statutory arbitration the standard for vacating an arbitrator’s award is found in 42 Pa.C.S. §7314:

“(1) On application of a party, the court shall vacate an award where: (i) the court would vacate the award under section 7341 (relating to common-law arbitration) if this subchapter were not applicable; (ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party; (iii) the arbitrators exceeded their powers; (iv) the arbitrators refused to postpone the hearing upon good cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or (v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.”

Further, “[I]t is indisputable that even in the absence of fraud or misconduct as those terms have been defined by Runewicz v. Keystone Insurance Company, 234 Pa. Super. 355, 338 A.2d 602 (1975), a court may set aside an arbitration award if the parties were not accorded a fair hearing.” Mellon v. Travelers Insurance Company, 267 Pa. Super. 191, 196-97, 406 A.2d 759, 761 (1979) (citing Smaligo v. Fireman Fund Insurance Company, 432 Pa. 133, 247 A.2d 577 (1968)). Notice and opportunity to be heard are essential elements of a fair hearing. Adelphia Cablevision Associates of Radnor L.P. v. University City Housing Company, 755 A.2d 703, 712 (Pa. Super. 2000) (citing Allstate Insurance Company v. Fioravanti, 451 Pa. 108, 113, 299 A.2d 585, 588 (1973)). When either element is denied, such party is denied due process. Mellon, supra at 197, 406 A.2d at 762.

In the instant case, the petitioner was denied the opportunity to be heard because it was impossible for the arbitrator to hear relevant testimony when the arbitrator was sleeping during the giving of such testimony.

ORDER

And now, November 1,2007, this matter being before the court on October 1,2007 for a hearing on plaintiff’s petition to vacate arbitration award, with Ronald R. Retsch, Esquire, appearing on behalf of the petitioner, and the respondent, Arnold Shiflett, appearing and proceeding pro se, it is hereby ordered, adjudged and decreed as follows:

(1) Plaintiff’s petition to vacate arbitration award is hereby granted as expressed in the attached opinion.

(2) This case is remanded to the American Arbitration Association for hearing de novo before another arbitrator to be selected from the American Arbitration Association Panel.

(3) The prothonotary shall serve notice of this order and attached opinion upon counsel of record for the parties, Ronald R. Retsch, Esquire, and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.