author: McLAUGHLIN, Member,

text:
    In re Hykel

      Disciplinary Board Docket no. 9 D.B. 2002.
    July 8, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

McLAUGHLIN, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, John J. Hykel, filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania on May 30,2003. Petitioner was suspended for two years retroactive to January 23,2002, by order of the Supreme Court dated July 17, 2002. This was a reciprocal discipline based on petitioner’s two-year suspension by the Immigration Court.

A reinstatement hearing was held on April 26 and April 28,2004, before Hearing Committee 1.15 comprised of Chair Michael T. Scott, Esquire, and members Howard J. Kaufman, Esquire and Christopher R. Booth Jr., Esquire. Petitioner was represented by John Rogers Carroll, Esquire.

Following the submission of briefs by the parties, the Hearing Committee filed a report on January 18, 2005, and recommended that petitioner be reinstated to the practice of law.

Office of Disciplinary Counsel filed a brief on exceptions to the report on February 7,2005. Respondent filed a brief opposing exceptions to the report on February 28, 2005.

This matter was adjudicated by the Disciplinary Board at the meeting of May 18, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is John J. Hykel. He was bom in 1949 and was admitted to practice law in Pennsylvania in 1976. His current home address is 111 Allgates Drive, Haverford PA 19041.

(2) Petitioner was suspended for two years retroactive to January 23, 2002, by order of the Supreme Court of Pennsylvania dated July 17, 2002.

(3) From May 1976 to May 1980, petitioner was employed by the Immigration and Naturalization Service (INS) in Philadelphia as a naturalization examiner.

(4) In May 1980, petitioner left the INS and opened a private law practice in Philadelphia. He specialized in immigration and naturalization cases and continued to do so for 20 years until his suspension by the Immigration Court. A consent order was entered by the immigration judge on February 7, 2002 suspending petitioner for two years, retroactive to March 8, 2001.

(5) In August 1997, an undercover FBI agent, accompanied by two cooperating government witnesses, met with petitioner in his Philadelphia law office to discuss obtaining work visas.

(6) One witness pretended to be the owner of a garment manufacturing company, who told petitioner that he was interested in securing work visas. Petitioner advised the witness that the men did not qualify for work visas and urged him to misrepresent their position in an application for labor certifications.

(7) On January 14, 1998, petitioner completed and delivered the false applications for labor certifications to the Alien Labor Certification Unit of the Pennsylvania Department of Labor and Industry. The certifications were then forwarded to the Department of Labor, an agency of the United States, for final review.

(8) In March 1998, petitioner was confronted by the FBI and admitted his criminal conduct. He cooperated with the government and entered into a cooperation agreement.

(9) On April 5, 2000, an Information was filed in the United States District Court for the Eastern District of Pennsylvania, charging petitioner with two counts of making false statements to an agency of the United States, in violation of 18 U.S.C. §1001, based on his attempt to obtain two immigrant work visas from the government by filing false applications for labor certifications.

(10) On May 25, 2000, petitioner pleaded guilty to both counts of the Information.

(11) On August 8, 2001, petitioner was sentenced to three years non-reporting probation, a $5,000 fine and a special assessment.

(12) Petitioner successfully completed his federal sentence on October 10, 2003, when his probation was terminated early.

(13) Petitioner suffers from an alcohol and cocaine dependency. He has been sober since 1993.

(14) Petitioner was diagnosed with bipolar disorder in June 1998. He takes the medication Neurontin and is under the care of Dr. Ronald Serota.

(15) According to Dr. Serota, who testified at the reinstatement hearing, petitioner’s prognosis for recovery is very good based on his positive response to the medication, his consistency in taking it as prescribed, and his participation in psychotherapy.

(16) Petitioner understands that he must continue with his medication and therapy in order to ensure that his bipolar condition stays under control.

(17) In anticipation of being suspended from practice before the immigration courts and in Pennsylvania state court, petitioner contacted John Seehousen, a Philadelphia lawyer with 34 years of experience, to take over his practice while he was suspended.

(18) Mr. Seehousen agreed to form a partnership with petitioner and drafted a partnership agreement.

(19) As of March 8, 2001, the effective date of petitioner’s suspension from the Immigration courts, Mr. Seehousen assumed responsibility as counsel for all immigration matters that previously had been handled by petitioner.

(20) As of March 8,2001, petitioner stopped going to his office regularly and limited his activities to ministerial and paralegal services.

(21) He did not give advice to clients or practice law subsequent to March 8, 2001.

(22) Every existing client of petitioner’s firm was advised by letter that petitioner had been suspended. These clients were asked to sign a contract acknowledging that Mr. Seehousen would be representing them.

(23) While new clients were not advised of petitioner’s suspension, the letters of representation with new clients specified that Mr. Seehousen would handle the cases.

(24) As of February 22, 2002, the effective date of petitioner’s suspension by the Supreme Court of Pennsylvania, petitioner ceased going to the office entirely and performed no paralegal work. Everything bearing petitioner’s name was removed from the office, with the exception of a small plaque that said “John J. Hykel.” This plaque was not visible to the public but remained on the door to petitioner’s personal office.

(25) All legal fees that petitioner received from Mr. Seehousen in 2002,2003, and 2004 were earned prior to the effective date of his state court suspension.

(26) During his suspension, petitioner volunteered to speak and lead Alcoholics Anonymous meetings at least twice per month in several county prisons in suburban Philadelphia.

(27) Petitioner volunteered more than 400 hours of service to AA at its Intergroup office in Philadelphia, answering telephone calls from people seeking help.

(28) Since May 2003, petitioner has been a volunteer with Compeer, a non-profit organization that matches volunteers with individuals who are having difficulties managing their mental illnesses. In this capacity, petitioner spends at least one hour per week with an individual suffering from schizophrenia.

(29) William Wolf, Esquire, has been a member of the bar since 1959 and is a former chief of homicide and investigations with the Philadelphia District Attorney’s office. He supports petitioner’s reinstatement and believes petitioner has made amends for his behavior.

(30) Steven Barsamian has been an immigration lawyer since 1976. He believes that petitioner is very highly regarded in Philadelphia and would be an asset to the bar if readmitted.

(31) Scott Snyder has been petitioner’s AA sponsor for approximately five years. Mr. Snyder believes that petitioner has shown remorse for his misconduct. He has no concerns about petitioner’s ability to stay sober in the future.

(32) Petitioner fulfilled his required Continuing Legal Education credits for reinstatement.

(33) Petitioner read various periodicals during his suspension to keep apprised of the law in the immigration areas. These include Immigration Bulletins, Immigration Law and Procedure, Interpreter Releases, and Bender’s Immigration and Nationality Act.

(34) If reinstated, petitioner plans to practice immigration law in Philadelphia.

(35) Petitioner has shown sincere remorse for his misconduct.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by John J. Hykel. By order of the Supreme Court of Pennsylvania dated July 17,2002, petitioner was suspended from the practice of law for two years retroactive to January 23, 2002.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts the lawyer has made since the time that sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779(1976).

Petitioner pleaded guilty to two counts of making false statements to a federal agency after he completed and delivered two false applications for labor certifications to the Alien Labor Certification Unit of the Pennsylvania Department of Labor and Industry, which were subsequently forwarded to the Department of Labor. Petitioner was sentenced to three years non-reporting probation. Petitioner’s conviction resulted in his suspension before the Immigration courts as well as the Supreme Court of Pennsylvania.

Petitioner has provided clear and convincing evidence that he is fit and qualified to practice law in Pennsylvania. Petitioner fulfilled the requirements of his criminal sentence. He has involved himself with volunteer work for Alcoholics Anonymous and Compeer, an organization matching volunteers with mentally ill people requiring assistance. Petitioner’s involvement with AA is based on his history of alcohol and cocaine addictions and subsequent recovery. Petitioner has been sober since 1993 and has maintained his sobriety since that time period.

Petitioner was diagnosed with bipolar disorder in 1998. He takes the medication Nuerontin under the care of his physician, Dr. Ronald Serota. This medication has successfully controlled the symptoms of the bipolar disorder. Petitioner plans to continue taking this medication and undergoing psychotherapy with Dr. Serota. Dr. Serota opined that petitioner’s prognosis is very good and he is fit to practice law.

Several character witnesses testified on behalf of petitioner. William Wolf and Steven Barsamian are respected attorneys in Philadelphia and both offered opinions that petitioner’s readmission to the bar would be an asset, not a detriment. Scott Snyder is petitioner’s AA sponsor and offered his credible opinion that petitioner is a fit and stable person.

Petitioner took steps to remove himself from the practice of law following his suspension. Shortly before the suspension, and in anticipation thereof, petitioner formed a partnership with Attorney John Seehousen, who agreed to take over petitioner’s practice during the suspension. While Office of Disciplinary Counsel raised concerns about this activity, the board finds nothing improper occurred. Petitioner ceased practicing law and did not perform any paralegal work for Mr. Seehousen. Any fees received by petitioner from Mr. Seehousen in 2002,2003 and 2004 were earned prior to the effective date of his suspension by the Supreme Court, thus these payments were permitted and in compliance with the Rules of Professional Conduct. All existing clients were notified of petitioner’s suspension. While new clients were not notified, the letters of representation for new clients stated that Mr. Seehousen would be handling the legal matter. Petitioner removed all indicia of his licensure, but for a small plaque on the door of his personal office, which was not visible to clients.

Petitioner fulfilled his Continuing Legal Education credits, and kept apprised of the status of the law in the immigration area by reading legal periodicals and journals. Petitioner expressed credible remorse and acknowledged how painful this episode in his life has been. He takes full responsibility for his criminal conduct. Petitioner is now in control of his life and ready to resume practice.

Petitioner has met with clear and convincing evidence his burden of proving that he is morally qualified, competent and learned in the law. Furthermore, the board finds that petitioner’s readmission will not be detrimental to the bar or the public. For these reasons the board recommends that petitioner be reinstated to the practice of law.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, John J. Hykel, be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Members Raspanti and Nordenberg did not participate in the May 18, 2005 adjudication.

ORDER

And now, September 26,2005, upon consideration of the report and recommendations of the Disciplinary Board dated July 8, 2005, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


source: Caselaw Access Project

author: NANOVIC, P.J.,

license: Public Domain

text:
    Dillow v. Myers

      C.P. of Carbon County,
    no. 00-2100.

      Steven J. Margolis, for plaintiff.

      Mark Sigmon, for defendants.
    November 22, 2005—
   NANOVIC, P.J.,

FACTUAL BACKGROUND

OnNovember 5,1998, at approximately 10:30 a.m., a Culligan water truck owned by the defendant, Funk Water Quality Company, and driven by its employee, the defendant Edward John Myers, rear-ended a truck temporarily parked on the east berm of the Northeast Extension of the Pennsylvania Turnpike in which John Dillow, an employee of the Pennsylvania Turnpike Commission and the plaintiff in these proceedings, was seated. At the time of the accident, plaintiff was acting within the course of his employment as an equipment operator for the commission; the truck in which he was seated had attached to the rear a directional arrow board for traffic control and was being used on that date for alerting and deflecting oncoming vehicular traffic away from Turnpike Commission employees further up the road.

Prior to the accident, Robert Tierney and Charles Supers, two witnesses to the accident, observed the defendant’s vehicle for a distance of almost 20 miles as it traveled northbound on the Turnpike. Both Tierney and Supers were in the same vehicle, Tierney driving and Supers a passenger. During this distance, the two vehicles passed one another several times: when going downhill defendant’s vehicle would gather speed and pass Tierney; when going uphill, defendant’s vehicle slowed and would be passed by Tierney. Tierney testified that he maintained a steady speed between 60 and 65 mph, the latter being the speed limit, and that when Myers passed him traveling downhill, Myers’ speed was “a lot faster” than his. Both Tierney and Supers noted that Myers did not use turn signals when shifting lanes.

Significantly, both Tierney and Supers testified that defendant’s vehicle was “listing heavily to the passenger side” — according to Tierney, at an angle of 20 to 30 degrees off level. Myers died of unrelated causes after the accident, however, prior to his death he told an investigator that “the load was so heavy on the right-hand side of his truck that he had to hold the steering wheel to the left to stay in the right lane.” In this same statement, Myers stated that “there was 8,000 pounds all on the right side.”

After the accident plaintiff learned not only that the truck was heavily loaded on one side — the passenger side — but that the loading racks for holding cylinders in place on the driver’s side were broken. The accident occurred when, after passing a tanker truck, Myers pulled into the right lane and continued going right, off the road, into the rear of plaintiff’s truck. Both Tierney and Supers, and a subsequent investigation by the Pennsylvania State Police, noted no evidence of any attempt by Myers to brake prior to the accident.

As a result of the accident, plaintiff sustained injuries to his neck, head, ear, low back and coccyx. Following a six-day jury trial beginning on November 1, 2004, and ending on November 10, 2004, the jury awarded plaintiff compensatory damages in the amount of $271,000 against both defendants, $100 in punitive damages against Myers’ estate, and $155,000 in punitive damages against Funk. Both sides have filed motions for post-trial relief which we address in this opinion. An additional motion for delay damages by plaintiff and a motion to mold the verdict by defendants will be addressed separately.

DISCUSSION

Punitive Damages

The defendant, Funk Water Quality Company, first contends that because its liability is vicarious, it cannot be held responsible for punitive damages greater than those awarded against its agent, servant and employee, the decedent, Edward John Myers. As previously stated, the jury returned a verdict of $155,000 in punitive damages against Funk and $100 in punitive damages against Myers.

In Pennsylvania, punitive damages can be imposed on an employer based entirely on an employee’s conduct even without any direct evidence of misconduct by the employer. Shiner v. Moriarty, 706 A.2d 1228, 1240 (Pa. Super. 1998), appeal denied, 556 Pa. 701, 729 A.2d 1130 (1998); Lake Shore & M.S. Ry. Co. v. Rosenzweig, 113 Pa. 519, 6 A. 545, 553 (1886) (“the [employer] is liable for exemplary damages for the act of its servant, done within the scope of his authority, under circumstances which would give such right to the plaintiff as against the servant were the suit against him instead of the [employer].”). The imposition of punitive damages on the employer requires only that the employee’s actions must be clearly outrageous, occur within the scope of his employment, and not be done to satisfy a personal motive but in furtherance of the employer’s interests. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa. Super. 90, 132, 464 A.2d 1243, 1264-65 (1983). Consistent with this principle, we charged the jury that if it determined that the actions of Myers were reckless, it could award punitive damages against Funk if (a) the recklessness was clearly outrageous; (b) Myers was acting in the scope of his employment and in furtherance of Funk’s business; and (c) Myers did not act with malicious intent (N.T., vol. Y, p. 203.)

The fundamental question in this case is not so much whether Myers’ conduct was “clearly outrageous” and therefore sufficient to impose vicarious liability on Funk for punitive damages by operation of law, but rather whether the amount of punitive damages awarded vicariously against Funk is necessarily circumscribed by the amount of punitive damages awarded against Myers, the party whose direct tortious misconduct was responsible for the accident. Specifically, in this case Funk claims it was error for the court to admit into evidence and permit the jury to consider Funk’s conduct and financial status as relevant factors in setting the amount of punitive damages awarded.

Conceptually, the amount of punitive damages awarded in a case is rationally related to the underlying purpose for punitive damages. Punitive damages exist to punish and deter egregious behavior. Martin v. Johns-Manville Corp., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985). Once a basis for awarding punitive damages has been established, in determining the size of the award, sufficient to serve this purpose, “the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant” may properly be considered. Dean Witter Reynolds Inc. v. Genteel, 346 Pa. Super. 336, 347, 499 A.2d 637, 642 (1985), appeal denied, 514 Pa. 635, 522 A.2d 1105 (1987) (quoting Restatement (Second) of Torts, section 908, and noting that this section and the comments thereunder have been adopted in Pennsylvania).

Funk does not dispute these well-settled principles but argues that when punitive damages are vicariously imposed, the amount imposed vicariously must be confined to the amount awarded against the party primarily responsible. As argued by Funk, only when liability is premised upon the separate and independent misconduct of the employer, whether or not acting in conjunction with the employee’s misconduct, is it appropriate for the fact-finder to separately assess the employer’s conduct and wealth in determining the amount of punitive damages to be awarded against the employer. In effect, Funk argues that because the purpose of punitive damages is to punish the tort-feasor and to deter him or others like him from similar conduct, if the employer did nothing wrong, and its liability for punitive damages is only vicariously imposed, as a matter of law, the amount of punitive damages awarded against the employer must equal that awarded against the employee.

When carefully considered, at the heart of Funk’s argument is a belief that the perceived harshness of Pennsylvania’s rule permitting a punitive award against a corporation for an employee’s tort in the absence of culpable misconduct by the employer must be tempered by a rule which either (1) restricts the imposition of liability to those situations where the corporation sanctioned its employee’s misconduct or was aware that the employee was unfit for his position, or (2) which otherwise limits the employer’s liability for punitive damages to the amount awarded against the employee. To the extent Funk argues that any liability for punitive damages vicariously imposed on a principal must be limited as provided in section 909 of the Restatement (Second) of Torts, this standard has never been adopted in Pennsylvania notwithstanding the recognized harshness of the traditional rule. Dean Witter, 346 Pa. Super. at 347, 499 A.2d at 643; Delahanty, 318 Pa. Super. at 131, 464 A.2d at 1264. To the extent Funk argues that the amount of punitive damages awarded on the basis of vicarious liability must be computed by application of the section 908 factors to the employee, and not to the employer, this is not the law of this Commonwealth. In Delahanty, in upholding the amount of punitive damages vicariously imposed on an employer, the Superior Court specifically approved the fact-finder’s taking into account in assessing the amount of damages, “not only the [employer’s] wealth but also, the outrageous conduct of the [employer’s] officials, their motive, the relationship between the parties, and the nature and extent of the harm to [plaintiff’s] businesses.” 318 Pa. Super. at 136, 464 A.2d at 1266; see also, Hannigan v. S. Klein’s Department Store, 1 D.&C.3d 339 (Phila. Cty. 1976), appeal denied, 244 Pa. Super. 597, 371 A.2d 872 (1976) (holding that the financial status of a security guard’s employer was relevant in assessing the amount of punitive damages vicariously imposed on the employer).

Whether to award punitive damages and the amount to be awarded are within the discretion of the fact-finder. Dean Witter, 346 Pa. Super, at 347, 499 A.2d at 642. This discretion should not be sacrificed for the sake of the symmetrical simplicity argued by Funk merely because the principal’s liability for punitive damages is vicariously imposed. In those cases where the agent’s misconduct was unexpected and unavoidable by the principal, the jury may well determine that the award of punitive damages assessed against both the agent and principal should be the same. In other cases where a management level official’s misconduct — even though not independently outrageous — facilitated the employee’s actions, the amount of punitive damages awarded against the employer might fairly exceed those awarded against the employee. There may also be situations in which the financial status of the employee exceeds that of the employer and where it would be contrary to the “plainest principles of justice” to automatically assess the same amount of punitive damages against the principal as against the agent. Funk v. Kerbaugh, 222 Pa. 18, 19, 70 A. 953, 954 (1908) (per curiam).

The variables inherent in determining what amount of punitive damages is appropriate are issues of fact, not of law, and for this reason are the proper subject of argument by counsel in their closing to the jury. The jury should be permitted to judge for itself based on the conduct and wealth of each defendant whether to separately assess punitive damages and in what amount. In this case, the jury properly exercised its discretion.

Clearly evident in the jury’s award of $100 in punitive damages against Myers’ estate was its understanding that because of Myers’ death, the penal aspect of punitive damages could serve no useful purpose against him or his estate. Additionally, beyond being advised of Myers’ death, the jury had no information as to the financial status of his estate. As to Funk, its conduct in failing to repair the broken racks for almost a year, making it virtually certain that when fully loaded the cargo weight would be unevenly distributed and would cause the truck to tilt to one side, and the conduct of its route manager, who was a passenger in the truck at the time of the accident, in permitting Myers to operate the truck in this condition on November 5, 1999, were proper factors for the jury to consider in assessing the amount of punitive damages against Funk. The jury was also provided relevant information regarding Funk’s annual income and net worth. Its award of $155,000 in punitive damages against Funk was neither confiscatory in relation to Funk’s net worth and income, nor disproportionate to the amount of compensatory damages awarded.

Amendment of the Pleadings

Prior to trial, defendants conceded negligence. The only question of liability presented to the jury was whether Myers’ conduct rose to the level of recklessness and whether, if reckless, this conduct was attributable to Funk so as to form the basis of an award of punitive damages against the employer. Plaintiff claims that we unduly restricted him in this regard and that under the pleadings and the evidence he was entitled to pursue a direct claim of reckless misconduct against Funk. We disagree.

Plaintiff commenced his action by complaint on October 25, 2000. The complaint consists of one count, against both defendants. In paragraph 9, an introductory paragraph which precedes the sole count of the complaint, plaintiff asserted in conclusory fashion that Funk was legally liable as a result of its negligence, carelessness and recklessness, and that of its agent, and “for its negligent conduct and supervision of the operation of its vehicle.” (emphasis added) Paragraph 9 is later incorporated by reference in Count I which, in paragraph 12, significantly and specifically describes the alleged negligence, carelessness and recklessness of both defendants (i.e., Funk and Myers) as being limited to the manner in which defendants’ truck was operated.

None of the instances of misconduct outlined in paragraph 12 even remotely suggested that Funk was directly liable for failing to adequately determine whether Myers was fit for employment or to operate a motor vehicle, the factual basis for direct liability later claimed by plaintiff in two amended complaints, filed on December 23, 2003, and December 26,2003, respectively, and also in a motion filed on November 1, 2004, for reconsideration of our decision granting defendants’ preliminary objections to both amended complaints.

At trial, plaintiff’s counsel further explained that it was his intent to prove that Funk’s employment and retention of Myers went beyond mere negligence and instead evidenced a wanton disregard for the rights of other motorists. To do this, plaintiff intended to prove that had Funk followed its own procedures in the hiring of new employees, it would have discovered that Myers had three previous motor vehicle violations — two more than three years prior to the accident in question, for failing to stop at a red light, the other of an unknown date and basis— and that in July 1998, after he was employed, Myers had a pending license suspension. (N.T., vol. I, pp. 50-55, 58-59.)

With the above in mind, we concluded that plaintiff’s request to amend his complaint and to establish a direct cause of action against Funk for alleged reckless misconduct after the statute of limitations had run was an attempt to improperly introduce a new cause of action into the case, prejudicial to Funk, and not simply an amplification of the original cause of action. See Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 676 A.2d 1205 (1996), appeal denied, 549 Pa. 695, 700 A.2d 442 (1997) (finding that the structure of the complaint must be examined in ascertaining the true nature of the cause of action asserted and that “a new cause of action arises if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed”). We further concluded that even if we permitted plaintiff’s proffered evidence, the failure to check the driving record of a prospective employee or to conduct a driver background check does not create such a sufficiently high degree of risk of harm to others as to warrant punitive damages. See A.T.S. v. Boy Scouts of America, 13 D.&C.4th 499, 506 (Montgomery Cty. 1992) (plaintiff, a child molestation victim, failed to adequately plead a claim for relief meriting punitive damages where plaintiff failed to assert that the failure to perform a criminal background check of a volunteer was guided by any evil motive or reckless indifference to the safety of others creating a substantial risk to him).

Future Medical Expenses

At trial, plaintiff presented the expert testimony of Dr. Keith Girton, an orthopedist, who testified that the cause of plaintiff’s lower back pain was a fractured or separated coccyx, accompanied by ligamentous injuries and scar tissue, and resulting in a condition known as coccydynia. It is in the nature of this condition for the afflicted person to experience discomfort, particularly when sitting, and to occasionally experience an irritation or exacerbation of symptoms for which “some medical treatment” can be expected from time to time. (Girton deposition, p. 33.) The condition is considered untreatable and, therefore, permanent.

While noting his belief that future medical treatment would at times be required, Dr. Girton further testified that plaintiff’s condition progressively improved when he was treating plaintiff during the period between December 6,2000 and September 20,2001, and that when he last saw plaintiff on September 20,2001, plaintiff had no pain. (Girton deposition, pp. 26-30,33, 57-58.) As to future medical treatment, Dr. Girton testified only that the type of treatment plaintiff received in the past for acute pain — i.e., as needed chiropractic and emergency room treatment when symptoms flare up — would be appropriate for the future. (Girton deposition, pp. 42-44.) Dr. Girton never testified to the expected frequency, duration or expense of future medical treatment. Nor did Dr. Mathew Kraynak, plaintiff’s family physician, who last examined plaintiff on July 23, 2003, and although testifying that plaintiff’s back pain was chronic, meaning it was not expected to go away soon, also testified that as of January 27,2003, plaintiff was using pain medication on a very limited basis. (Kraynak deposition, pp. 52, 81, 83.)

Prior to closing arguments, plaintiff requested an instruction for future medical expenses. See Pa.S.S.J.I. (Civ) 6.01(B). As to the amount of future medical expenses, plaintiff contended that it was appropriate to average the costs of Dr. Kraynak’s treatment and the chiropractic and emergency room treatment over the two and a half year period between May 9, 2002 and the date of trial (i.e., $3,077.48) and then extrapolate this figure for the balance of plaintiff’s life. Plaintiff’s counsel proposed making this calculation in his closing argument. (N.T., vol. IV, p. 181; vol. V, p. 24.) Plaintiff’s requested instruction was denied and is the subject of a post-trial motion.

The burden of presenting sufficient evidence in support of damages is upon the plaintiff. In meeting this burden: “ ‘[a] claim for damages must be supported by a reasonable basis for calculation; mere guess or speculation is not enough.’ Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 453-54, 197 A.2d 721, 727 (1964). See also, Small v. Flock, 407 Pa. 148, 180 A.2d 59 (1962); Getz v. Freed, 377 Pa. 480, 105 A.2d 102 (1954). ‘If the facts afford a reasonably fair basis for calculating how much plaintiff’s entitled to, such evidence cannot be regarded as legally insufficient to support a claim for compensation.’ Western Show Co. Inc. v. Mix, 308 Pa. 215, 162 A. 667 (1932).” Kaczkowski v. Bolubasz, 491 Pa. 561, 567, 421 A.2d 1027, 1030 (1980).

More specifically, as to future medical expenses:

“It is well-settled that ‘ [a]n item of damage claimed by a plaintiff can properly be submitted to the jury only where the burden of establishing damages by proper testimony has been met.’ Cohen v. Albert Einstein Medical Center, 405 Pa. Super. 392, 410, 592 A.2d 720, 729 (1991). In the context of a claim for future medical expenses, the movant must prove, by expert testimony, not only that future medical expenses will be incurred, but also the reasonable estimated cost of such services. Id. See also, Berman v. Philadelphia Board of Education, 310 Pa. Super. 153, 161-65, 456 A.2d 545, 550-51 (1983). Because the estimated cost of future medical services is not within the layperson’s general knowledge, the requirement of such testimony eliminates the prospect that the jury’s award will be speculative. Cohen, 405 Pa. Super. at 410-11, 592 A.2d at 729.” Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Super. 1997) (en banc), (emphasis added)

In Pennsylvania, although damages need not be proven with mathematical certainty, they must be proven with reasonable certainty. It is incumbent upon plaintiff to “present competent evidence from which the jury can reasonably determine the degree to which future consequences of a present injury are probable and, accordingly, what the amount of any damages award should be.” Martin, 508 Pa. at 165 n.5, 494 A.2d at 1094 n.5. The evidence must be sufficient to make an intelligent estimate, without conjecture.

While we agree that plaintiff presented sufficient evidence to find that he would require occasional, and apparently sporadic, future medical treatment for acute back pain, and that because of the etiology of this pain it is not possible to predict with certainty when treatment will be required, plaintiff failed to present any expert opinion about the estimated duration or frequency of future episodes of acute pain requiring treatment, that they would be the same or similar to that required in the past, or that the level of care or costs of future medical expenses for this treatment would approximate those which had occurred in the past. Without this information, to have permitted plaintiff’s counsel to average and extrapolate past expenses incurred during an arbitrary time period into an estimate of future costs would have permitted counsel to engage in self-serving speculation and conjecture, which is the antithesis of the requisite degree of probability on which damages must be fairly and intelligently based.

Closing Arguments

During closing argument, defendant’s counsel argued that the loading and tilting of defendant’s truck did not create an unsafe or unreasonably dangerous condition, and that, notwithstanding the broken loading racks, the truck had previously been loaded in this same manner and been operated without mishap. (N.T., vol. V, pp. 48-49.) In response, plaintiff’s counsel asserted that defendant’s logic — “we did it numerous times before without incident, therefore, it can’t be reckless” — was flawed and compared the argument to that made by an intoxicated driver involved in a motor vehicle accident who claims his driving was not impaired as evidenced by previous occasions when he had driven in the same condition without incident. (N.T., vol. V, pp. 77-79.) In making this analogy, plaintiff’s counsel clearly disclaimed any suggestion that Myers was intoxicated or that alcohol was involved in this litigation. On the issue of recklessness, at one point in his closing argument, plaintiff’s counsel implied that Funk routinely places on the road 23 other trucks in a similar condition to that driven by Myers, thus evidencing Funk’s deliberate disregard for public safety. (N.T., vol. V, p. 79.)

Defendants timely objected to plaintiff’s counsel’s remarks. As to the first objection, counsel’s analogy was in direct response to comments made by defendants’ counsel and not intended to mislead or inflame the jury. Aiello v. Ed Saxe Real Estate Inc., 327 Pa. Super. 429, 439-40, 476 A.2d 27, 33 (1984), rev’d on other grounds, 508 Pa. 553, 499 A.2d 282 (1985), (whether remarks made by trial counsel in closing arguments are objectionable requires a determination whether they are legitimately responsive to opposing counsel’s closing arguments). As to defendants’ second objection, we immediately issued a curative instruction advising the jury that counsel’s argument on this point was not supported by the record and should not be given any consideration. (N.T., vol. V, pp. 88-89.) Given this curative instruction, there was no undue prejudice to defendants. See Slappo v. J’s Development Associates Inc., 791 A.2d 409, 414 (Pa. Super. 2002) (trial court’s decision on whether or not to grant a new trial requires a two-part analysis: “(1) whether a mistake occurred at trial; and (2) whether the mistake was prejudicial to the moving party.”). We find no merit to defendants’ post-trial motion on either of these two bases.

CONCLUSION

Having carefully reviewed and considered the issues which have been raised in the parties’ respective post-trial motions and which have been briefed and argued, we are convinced that no legal error exists. We further believe the juiy’s verdict was fair and is amply supported by the evidence of record. Accordingly, both plaintiff’s and defendants’ post-trial motions will be denied.

      . The cargo being transported consisted of 120 five-gallon bottles of water and approximately 30 cylinders of water softener. The cylinders of water softener were made of steel, weighing approximately 110 to 120 pounds each. Loading racks were used for holding the cylinders in place but the racks on the driver’s side were either missing or broken, necessitating the placement of the water softener cylinders exclusively on the passenger’s side and water bottles only on the driver’s side. Kyle Gery, a former route driver and manager for Funk who now works in Funk’s Eaglesville headquarters, stated that the truck would lean to the passenger’s side when loaded in this manner. (N.T., vol. I, pp. 171-73, 188-89.) Gery was a passenger in Myers’ truck at the time of the accident to familiarize him with the delivery route.

      . Defendants’ additional argument that Myers’ conduct did not rise to the requisite level of recklessness or outrageousness, and will not support an award of punitive damages, is without merit. “[I]n Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 124, 870 A.2d 766, 772 (2005) (citing with approval Restatement (Second) of Torts, §500, cmt. a, Types of Reckless Conduct (1965)). Comment a describes two types of reckless misconduct: the first is where the “actor knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk”; the second is where the “actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.” Martin v. Johns-Manville Corp., 508 Pa. 154, 171, 494 A.2d 1088, 1097 (1985) (plurality) (Although Martin was a plurality opinion, its discussion and analysis regarding punitive damages has been approved by our Supreme Court. See Hutchison, 582 Pa. at 122, n.7, 870 A.2d at 771 n.7.). “Under Pennsylvania law, only the first type of reckless conduct... is sufficient to create a jury question on the issue of punitive damages.” Id.

      This standard for awarding punitive damages has been met in this case: knowing that the truck was heavily loaded with a disproportionate weight on the passenger side because of the broken loading racks, that this load caused the truck to lean dangerously to the right, and that to compensate for this change in the truck’s center of gravity it was necessary to keep the wheel turned to the left in order to drive in a straight line, Myers nevertheless deliberately drove the truck at a speed and in a manner which posed an unjustifiable and substantial risk to others of which he was aware.

      . Perhaps, in part, because of the harshness of this rule, it is important to note that while public policy prohibits the purchase of insurance coverage to protect against punitive damages attributable to the direct wanton misconduct or recklessness of the employer, an employer can purchase insurance to indemnify itself against vicarious liability for punitive damages. Butterfield v. Giuntoli, 448 Pa. Super. 1, 18, 670 A.2d 646, 655 (1995), appeal denied, sub nom., Butterfield v. Mikuta, 546 Pa. 635, 683 A.2d 875 (1996).

      . At the time of trial, defendants objected generally to any instruction on punitive damages on the basis that the evidence was insufficient to sustain a finding that Myers ’ conduct was outrageous and would justify such an award against either defendant. At that time, defendants did not voice the further objection, now argued, that in assessing the amount of punitive damages against a vicariously liable employer, only the employee’s conduct is at issue and therefore any exemplary award must be based entirely upon the employee’s conduct and an assessment of the employee’s, not the employer’s, wealth. With this in mind, it may well be that the defendants’ present argument has been waived. Kelly v. St. Mary Hospital, 778 A.2d 1224, 1227 (Pa. Super. 2001) (to preserve a claim for review, an appellant’s objection must be timely and precise).

      . Section 909 of the Restatement (Second) of Torts provides:
      “Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
      “(a) the principal or a managerial agent authorized the doing and the manner of the act, or
      “(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
      “(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
      “(d) the principal or a managerial agent of the principal ratified or approved the act.” Restatement (Second) of Torts: Punitive Damages Against a Principal §909 (1965).

      . This fact alone does not preclude an award of punitive damages against an estate. In contrast to compensatory damages whose objective is to make a plaintiff whole, the objective of punitive damages is not to compensate the plaintiff, but to punish the defendant and to deter others from like conduct, “thereby serving a public as well as private interest.” G.J.D. by G.J.D. v. Johnson, 447 Pa. Super. 340, 347, 669 A.2d 378, 382 (1995), aff’d sub nom., G.J.D. by G.J.D. v. Johnson, 552 Pa. 169, 713 A.2d 1127 (1998) (upholding the award of punitive damages against an estate).

      . In chambers, the court was advised that Myers’ estate had no assets and was judgment-proof. (N.T., vol. Ill. p. 66.) That the jury was not advised of this information was not critical to its award of punitive damages against Myers’ estate. Shiner v. Moriarty, 706 A.2d 1228, 1242 (Pa. Super. 1998), appeal denied, 556 Pa. 701, 729 A.2d 1130 (1998) (rejecting the suggestion that evidence of net worth is mandatory to a valid award of punitive damages).

      . See paragraph 9 of plaintiff’s first and second amended complaints.

      . In this motion, plaintiff argued that Funk’s alleged recklessness consisted, in essence, of its failure to check Myers’ driving record before and subsequent to his employment and, in consequence, allowing Myers’ to operate its truck without a valid driver’s license. (Motion, paragraph 19.) (Myers’ license was apparently suspended on October 27,1998, nine days before the motor vehicle accident which is the subject of this suit. (N.T., vol. I, p. 52.).) Plaintiff also argued that defendants were bound by a stipulation of counsel dated December 8,2000, in which the parties agreed that “if at any time during the discovery portion of this case evidence is produced that either one or both of the defendants have acted recklessly, the plaintiff will be permitted to file an amended complaint and include allegations of recklessness and reckless conduct against both defendants, without any opposition from the defendants.” (Stipulation of counsel dated December 8, 2000, ¶2.)
      We found that in the context of the subject of the stipulation, the original complaint filed by the plaintiff, the stipulation was ambiguous: that the stipulation could mean that any amendment at any time alleging any basis of recklessness by either of the defendants would be permitted or, alternatively, that any amendment alleging reckless misconduct was to be confined by the structure of the original complaint in which the nature of the recklessness alleged was confined to the manner in which the vehicle was operated. When the terms of an agreement are not ambiguous on their face but become so in the context of extrinsic or collateral circumstances, parole evidence is admissible to resolve such latent ambiguity. Yocca v. Pittsburgh Steelers Sports Inc., 578 Pa. 479, 498, 854 A.2d 425, 437 (2004).
      Having found ambiguity, the only evidence offered to resolve this uncertainty was that provided by defendants’ counsel who testified that the intent of the stipulation was to bar any issue of recklessness from the case, unless evidence of recklessness with respect to the operation of the vehicle was subsequently discovered, and not with respect to any other issue. (N.T., vol. I, pp. 40-44.) On the basis of this evidence, we concluded that it was the intent of the parties to confine any future amendment to the original cause of action stated in the complaint: the manner in which the vehicle was operated. (N.T., vol. I, pp. 61-62.)
      In discussing plaintiff’s requested amendment, it is important to note that the only evidence of recklessness plaintiff sought to introduce at trial was that with respect to Funk’s employment practices in the hiring and retaining of Myers which, as will be discussed above, did not rise to the level of recklessness. (N.T., vol. I, pp. 49-55.) Only later, in his brief in support of his post-trial motion, did plaintiff argue that Funk’s recklessness also consisted of permitting Myers to operate a truck which it knew or should have known was unsafe because of broken water racks which required the water softener cylinders to be loaded on one side of the truck and, when so loaded, caused the truck to tilt to the passenger side. This additional basis for subjecting Funk to direct liability for punitive damages, we find, has been waived. Spitzer v. Philadelphia Transportation Co., 348 Pa. 548, 36 A.2d 503 (1944) (holding that an offer of proof which fails to state what a witness would have said if permitted to testily, fails to protect the record or preserve for review claimed error).

      . Moreover, even if plaintiff’s evidence was accepted as true, the accident in question was not caused by Myers’ failure to stop at an intersection or to have a valid driver’s license. Consequently, any misconduct by Funic in its employment of Myers on this basis was irrelevant and would have been highly prejudicial if admitted.

      . Literally, pain of the coccyx. (Girton deposition, p. 11.)

      . This figure includes six visits to Dr. Kraynalc’s office by plaintiff between May 9, 2002, and October 22, 2004, at a cost of $480, chiropractic treatment for acute pain (six visits to Healing Hands in July and August 2003 and six visits in February 2004 at a cost of $825, and eight visits to Cohen Chiropractic in August and September 2004, at a cost of $850), as well as treatment he received at the emergency room of the Geisinger Wyoming Valley Hospital on July 21, 2003, at a cost of $469.91, and on July 29,2004, at a cost of $452.57. (Plaintiff’s exhibit 5IQ)-)
      Not only did the number of times plaintiff received chiropractic and emergency room treatment for acute pain during these periods as evidenced byplaintiff’s billings differ from what Dr. Girton testified was appropriate (i.e., three or four occasions in February 2004 and two times a week for two weeks in late July, early August, 2004), the frequency, duration of visits, and cost of treatment varied on each occasion plaintiff received medical care for acute pain. (Girton deposition, pp. 41-42; see also, plaintiff’s exhibit 51(j).) The evidence also indicated that between March 6,2002, and January 27,2003, a period of 10 1/2 months, plaintiff did not have any visits with Dr. Kraynak and that all visits with Dr. Kraynak after February 2002 were not for treatment, but to refill prescriptions for medication. (Kraynak deposition, p. 80; N.T., vol. II, pp. 150-51.)
      Neither Dr. Girton nor Dr. Kraynak testified that the frequency, duration or expense of treatment plaintiff received in the past was the same or similar to that expected in the future. These are not matters of common knowledge, nor was the information provided to the jury on past treatments sufficient for a layperson to reasonably make such inferences about future treatment. Compare Pratt v. Stein, 298 Pa. Super. 92, 137, 444 A.2d 674, 698 (1982) (finding evidence sufficient to award future medical expenses for chiropractic treatment for back spasms attributable to plaintiff’s use of a cane where, because of permanent nature of injury, plaintiff’s need to use a cane in the future would continue and plaintiff’s past treatment consisted of more than 120 visits to the chiropractor over a four-year period at a fixed cost per visit: from this information “the jury could reasonably have inferred that [the plaintiff] would require chiropractic treatment with the same frequency as he had in the past”), with Baccare v. Mennella, 246 Pa. Super. 53, 369 A.2d 806 (1976) (finding that prognosis of future duration and treatment for plaintiff’s lower back pain was too indefinite to allow jury to consider awarding future medical expenses).


author: PAPALINI, J,

text:
    Brito v. MAC International Inc.

      Joanne W. Rathgeber, for plaintiffs.

      Michael Panichelli, for defendant.
    January 12, 2006
   PAPALINI, J,

Defendant, MAC International Inc., has filed an appeal of our order denying its motion for post-trial relief.

I. FACTUAL HISTORY

(1) The plaintiffs, Reyna Yasquez and her husband Gilbert Brito, commenced suit on May 6,2003, alleging that defendant MAC, who owned the apartment building where they lived, negligently failed to act to evict a sexual pervert, Derek Johnson, who was living in the unit next door without authorization, and who, by his actions, caused physical and emotional distress to the plaintiffs and constructively deprived them of the use of their home.

(2) A jury trial was held in January of 2005. Plaintiffs were represented by Joanne W. Rathgeber, Esquire, and the defendant by Elizabeth McKenna, Esquire. The jury found in favor of plaintiff Reyna Vasquez in the amount of $539,000 and in favor of plaintiff Gilbert Brito in the amount of $40,000, holding that the defendant had been negligent as to both plaintiffs and that the negligence was a substantial factor in bringing about harm to them.

(3) Defendant filed a timely motion for post-verdict relief. Briefs were filed.

(4) On June 6, 2005, we issued an order denying the defendant’s motion.

(5) Defendant filed a timely notice of appeal.

(6) On July 19, 2005, we ordered defendant to file by August 22,2005, a concise statement of the matters that it actually intended to raise on appeal, pursuant to Pa.RA.P. 1925(b). In response, defendant filed an 11-page statement.

II. ISSUES

The defendant contended that the court erred in not granting it a judgment notwithstanding the verdict for the following reasons:

(1) The evidence was not sufficient to establish the prima facie elements of a negligence claim based on a landowner’s duty to business invitees (citing N.T. 1/26/ 05 at 4-7);

(2) The evidence was not sufficient to establish the prima facie elements of a negligence claim based on a landlord’s duty to tenants (citing N.T. 1/25/05 at 152-55);

(3) The evidence was not sufficient to establish the prima facie elements of a contract claim based on the implied warranty of habitability (citing N.T. 10/12/04 at 127-30; N.T. 1/26/05 at 96-97);

(4) The evidence was not sufficient to establish the prima facie elements of a contract claim based on the implied covenant of quiet enjoyment habitability (citing N.T. 10/12/04 at 127-30; N.T. 1/26/05 at 96-97).

The defendant also contended that the court erred in not granting defendant a new trial for the following reasons:

(1) The trial court erred in allowing plaintiffs to introduce, offer evidence of, and otherwise make use of, documents and information concerning Derek Johnson’s alleged prior criminal record in support of their claim that defendant negligently failed to provide security (citing N.T. 1/20/05 at 76-85, 76-88, 89-101, N.T. 1/21/05 at 1-18);

(a) As a matter of law, defendant had no duty to provide security;

(b) Plaintiffs did not establish that Mr. Johnson’s alleged prior criminal record was relevant to its claim that defendant negligently failed to provide security (citing N.T. 1/25/05 at 116, 117-19);

(c) Plaintiffs did not establish that any documents regarding Mr. Johnson’s alleged prior criminal record were admissible as official records (citing N.T. 1/20/05 at 76-77; N.T. 1/25/05 at 116, 117-19);

(d) Plaintiffs did not establish that any documents regarding Mr. Johnson’s alleged prior criminal record were admissible as business records (citing N.T. 1/20/05 at 76-77);

(2) The trial court erred in charging the jury on, and submitting this case to the jury on, plaintiffs’ negligence claims (citing N.T. 1/26/05 at 4-7; N.T. 1/26/05 at 16-17; N.T. 1/25/05 at 152-55);

(3) The trial court erred in charging the jury on, and submitting this case to the jury on, plaintiffs’ contract claims (citing N.T. 1/25/05 at 127-30; N.T. 1/26/05 at 96-97);

(4) The trial court erred in charging the jury on “a trespasser” (citing N.T. 1/26/05 at 13-15, 96-97);

(5) The trial court erred in charging the jury on, and permitting the jury to consider and award, damages for harm such as pain and suffering, emotional distress, embarrassment and loss of life’s pleasures (citing N.T. 1/25/05 at 123-25);

(6) The trial court erred in permitting plaintiffs to introduce into evidence the deposition testimony of Police Officer Wilson (citing N.T. 1/24/05 at 10-15).

III. STANDARD OF REVIEW

A trial court must enter judgment notwithstanding the verdict only if the movant is entitled to judgment as a matter of law or if the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. A lower court’s grant or denial of a judgment notwithstanding the verdict will be disturbed only for an abuse of discretion or an error of law. Lockwood v. City of Pittsburgh, 561 Pa. 515, 519, 751 A.2d 1136, 1138 (2000); Moure v. Raeuchle, 529 Pa. 394, 403, 604 A.2d 1003, 1007 (1992). In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, who must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in favor of the verdict winner. City of New Castle v. Uzamere, 829 A.2d 763, 767 (Pa. Commw. 2003).

The admission of evidence rests within the sound discretion of the trial court. To constitute reversible error, the trial court’s ruling on evidence or jury instructions must not only be erroneous, but it must be harmful or prejudicial to the complaining party. Johnson v. Hyundai Motor America, 698 A.2d 631, 636 (Pa.Super. 1997).

IV. TRIAL EVIDENCE

Plaintiffs Gilbert Brito and Reyna Vasquez had been tenants of Apartment 2-E of the Oxford Towers Apartments, 7210 Oxford Avenue, Philadelphia, Pennsylvania, since March of 1999, when they signed a lease. (NT. 1/20/05 at 38-39.) The building was managed by Defendant MAC. (N.T. 1/20/05 at 28.) Ann Marie Doan was the property manager for MAC. (N.T. 1/21/05 at 113.)

The lease included the following clause: “B. No disturbance to others. The tenant will not do anything to disturb other tenants.” It also contained two other provisions: “Tenant agrees not to conduct illegal activities on the property” and “Tenant’s family and guests agree to obey all laws and rules that apply to tenant.” Finally, the lease provided that if the tenant failed to comply with the provisions of the lease, he could be evicted after five days notice. (N.T. 1/21/05 at 115-17.)

The main door to the building was unlocked and entered into a vestibule. A second door leading inside from the vestibule, was locked. (N.T. 1/20/05 at 39-40.)

Mr. Brito was aware that Mr. Roznowski and a young man lived in the apartment next door to them. (N.T. 1/ 20/05 at 40-41.) Ms. Vasquez once discussed the young man with him. She too knew that he lived next door. She felt that he was either on drugs or alcohol. (N.T. 1/20/05 at 42-43; N.T. 1/21/05 at 84.)

On December 20,2000, at about 2 a.m., Ms. Vasquez was returning home from working a night shift job and was entering her apartment building, when she saw the man from Apartment 2-F masturbating (he ejaculated) in the vestibule at the building’s entrance. Mr. Brito called the police, who arrived about an hour later. An officer took a report, suggested that Ms. Vasquez carry mace and advised them to report the incident to the building management. (N.T. 1/20/05 at 45-47; N.T. 1/21/05 at49.)

On December 28, 2000, Mr. Brito delivered a letter, signed by Ms. Vasquez, detailing that and other incidents, to a secretary, Jennifer Giraldo, in the management office of Oxford Towers. The letter described the perpetrator but did not identify him or indicate that he lived in Apartment 2-F, because Ms. Vasquez was only 99 percent sure and did not want to make accusations about the wrong person. (N.T. 1/20/05 at 48-49; N.T. 1/21/05 at 51-52, 86.) However, Mr. Brito told Ms. Giraldo, and we found his testimony to be credible, that Ms. Vasquez had told him that that “it was the guy living in 2-F. ” (N.T. 1/ 20/05 at 50.) Ms. Giraldo then spoke about an incident of a man running naked in the hallway. (N.T. 1/20/05 at 51.)

Giraldo gave the letter to property manager Ann Marie Doan. (N.T. 1/25/05 at 5, 7.)

Two employees of MAC lived in the apartment house: the vice-president of MAC, Laurie McHugh, and a maintenance man, William Flannagan (Billy). (N.T. 1/20/05 at 61; N.T. 1/25/05 at 10.)

After McHugh saw the letter of December 28, 2000, she instructed Ann Marie Doan to make sure the building was secure. McHugh and her husband then made daily building checks of the area late at night, looking for someone walking around. She also instructed Flannagan to keep an eye out. (N.T. 1/25/05 at 57-59.)

However, no one from MAC contacted the plaintiffs about the letter. (N.T. 1/20/05 at 52; N.T. 1/21/05 at 52.)

After the first incident, Ms. Vasquez would phone her husband when she arrived home from work and he would come down to meet her, armed with a weapon, leaving their young son alone in the apartment. (N.T. 1/20/05 at 53-54; N.T. 1/21/05 at 51.)

On March 17, 2001, at about 2:30 a.m., Ms. Vasquez was again returning home from work, when she once again saw the man masturbating in the entrance vestibule. She called her husband on her cell phone. (N.T. 1/ 20/05 at 55; N.T. 1/21/05 at 53.)

Mr. Brito came down to the entrance and, thinking the police officer was the perpetrator, he mistakenly sprayed the officer with mace or pepper spray. Mr. Brito was then punched in the face repeatedly by the officer. He was kept handcuffed in a police car for about a half hour before being released. (N.T. 1/20/05 at 55-58,156-57; N.T. 1/21/05 at 54.) The police told them that the sex crimes unit would contact them. (N.T. 1/20/05 at 58, 152.)

The Plaintiffs were driven to the Special Victims Unit by a police officer a few days later and interviewed by Officer Mimi Wilson, who was not able to ascertain the name of the perpetrator who lived in 2-F. (N.T. 1/20/05 at 59-60, 158; N.T. 1/21/05 at 55-56.)

The plaintiffs did not report this second incident to the apartment management. Ms. Vasquez believed that the police would contact management. (N.T. 1/20/05 at 154; N.T. 1/21/05 at 57.)

On May 19, 2001, at about 3:30 a.m., again returning from work, Ms. Vasquez was parking her car in the building’s parking lot when she saw the same man walk out from behind some bushes and motion to her to come to him. (N.T. 1/20/05 at 68; N.T. 1/21/05 at 61.) She drove to Rite Aid and called her husband and the police. Two female police officers arrived and escorted her first to her apartment and then to Apartment 2-F. The perpetrator was standing at the open door to Apartment 2-F. (N.T. 1/20/05 at 70; N.T. 1/21/05 at 61-62.)

On May 20,2001, Ms. Vasquez presented another letter to MAC, specifically complaining about the tenant in 2-F, which was received by Jennifer Giraldo. (N.T. 1/20/ 05 at 107,115-16; N.T. 1/21/05 at 63.)

MAC never addressed the plaintiffs’ complaint. (N.T. 1/20/05 at 117.)

On July 2,2001, Ms. Vasquez picked Derek Johnson’s photo from an array shown to her at the police station by Officer Wilson, but she was not told the name of the perpetrator. (N.T. 1/20/05 at 105, 159; N.T. 1/21/05 at 64, 90, 91; N.T. 1/24/05 at 48-49, 75, 82.) Derek Johnson was a white male, 31 years old. The police were unable to apprehend Johnson at Apartment 2-F. He was residing at 8273 Jamison Street at the time of his arrest on March 22, 2004. (N.T. 1/24/05 at 86-89.)

After this third incident, plaintiffs requested that they be moved to another building or another apartment in the Oxford Towers complex away from Apartment 2-F. At first, they were told by Jennifer Giraldo that there would soon be another apartment available, and Mr. Brito expressed his desire to take it, but eventually it was rented to another person. (N.T. 1/20/05 at 122-23.) Thereafter, they gave notice of intent to move and ultimately moved at the end of September of 2001. (N.T. 1/20/05 at 124-26.)

Plaintiffs represented evidence that there were many other apartments available, but none were offered to them. (N.T. 1/21/05 at 196-98.) In fact, Ann Marie Doan managed 10 buildings for MAC, with 348 apartments. (N.T. 1/21/05 at 114.)

The named and listed tenant for Apartment 2-F was Olga Roznowski. The person living in Apartment 2-F was Herbert Roznowski, the tenant’s son. Mr. Roznowski had moved in with his mother in 1993 or 1994, to care for her, and at that time, he had notified Lawncrest Reality, the then current management, of the arrangement. (N.T. 1/20/ 05 at 24-25,27-28.) Therefore, he was not the tenant, but was permitted to live there to help his mother.

Ms. Olga Roznowski, the tenant, died in 1999. Mr. Roznowski never notified the landlord of this fact, but just kept paying the rent for his deceased mother at MAC’S office on Bustleton Avenue, where he met Ann Marie Doan and Jennifer Giraldo. (N.T. 1/20/05 at 25, 27-28.)

Mr. Roznowski permitted his stepson, Derek Johnson, to live with him and never notified the landlord of same. (N.T. 1/20/05 at 25-26.)

After Mr. Roznowski received notice that MAC International was the new management company, he never notified MAC that Olga Roznowski had died, that he was living there or that his stepson was living there. (N.T. 1/20/05 at 27-28.)

Therefore, both father and stepson lived in the apartment of the deceased tenant, Olga Roznowski and never notified the landlord, MAC, and the landlord never investigated as to why two people who were not tenants were living in the apartment of Olga Roznowski.

Mr. Roznowski’s stepson, Derek Johnson, had been arrested five times for deviant sexual behavior and subsequently convicted four times, as set forth in detail in footnotes 4 to 6.

If the defendant’s employees had investigated, they would have found that Johnson had been arrested and convicted for other sex crimes, similar to those experienced by Ms. Vasquez.

Pursuant to an incident report from February 24,1997, there had been an episode involving Derek Johnson at 7030 Rising Sun Avenue, which was almost identical to what had happened in the instant case. Johnson pled guilty to indecent exposure and open lewdness, for which he received probation. (N.T. 1/20/05 at 84-85; N.T. 1/ 26/05 at 32.) There was another incident on May 5,2000, relating to Johnson, where his address was given as 7210 Oxford Avenue. (N.T. 1/26/05 at 33.) On March 26, 2001, there was yet another incident at 3199 Ryan Avenue in Philadelphia, where Johnson was caught exposing himself and masturbating near a school. (N.T. 1/20/ 05 at 85-86; N.T. 1/26/05 at 43-45.)

Maty Ann Doan testified that she received the December 28, 2000 letter which Ms. Vasquez had written from Jennifer Giraldo, who told her that Mr. Brito said that the man in question lived on the first floor. Ms. Doan stated that she believed that she left a message for the plaintiffs on their answering machine, but the plaintiffs never received any message. (N.T. 1/20/05 at 52; N.T. 1/ 21/05 at 141, 146.) Ms. Doan conducted no further investigation into the complaint. (N.T. 1/21/05 at 144-46, 148.)

After the May 20, 2001 incident, Ms. Doan went to Apartment 2-F looking for Mr. Roznowski, and a young man, presumably Johnson, answered the door. (N.T. 1/ 21/05 at 129-32.) Ms. Doan telephoned the Special Victims Unit on June 3, 2001. She told Officer Wilson that she had spoken with the alleged offender, whose name she did not know, and that he denied it. (N.T. 1/24/05 at 70.) Thereafter, Ms. Doan did not respond to further police inquiries until June 25,2001, when she left a phone message at the Special Victims Unit stating that she had not learned the name of the occupant of Apartment 2-F. (N.T. 1/24/05 at 61.)

Thereafter, Ms. Doan never attempted to evict Johnson from Apartment 2-F; she never demanded of Mr. Roznowski that he provide the name to her of the young man residing in Apartment 2-F; beyond the alleged answering machine message, she never attempted to contact Ms. Vasquez. (N.T. 1/21/05 at 155-58.)

Laurie McHugh, vice president of MAC, also read the letter of December 28, 2000. She never contacted Ms. Vasquez or the police. (N.T. 1/21/05 at 186-88.)

As to injuries, after the scuffle with the police on March 17, 2001, plaintiff Brito suffered pain in his shoulder, and after an MRI, was diagnosed with tendonitis. He received injections into the shoulder and physical therapy. He was treated by his family doctor, an orthopedic specialist and a pain management specialist. Surgery was recommended. (N.T. 1/20/05 at 67, 137-44.)

Ms. Vasquez suffered extreme emotional upset after each incident, which upset was of a continuing nature, including depression, stress, frustration, panic and sleeplessness. She did not want to use the laundry in the basement, had panic attacks and could not sleep well. (N.T. 1/20/05 at 121; N.T. 1/21/05 at 51,55.) After the second incident, she spent Fridays and Mondays sleeping at her sister’s home, because those were the days that she was very late coming home from work. This arrangement adversely affected her work. (N.T. 1/20/05 at 68; N.T. 1/ 21/05 at 57-60.) After the third incident, whenever Ms. Vasquez worked late, she slept at her sister’s home. Essentially, she only slept in Apartment 2-E on weekends. (N.T. 1/20/05 at 120, 121.) At the time of trial, she still experienced fear of the dark, she did not use elevators, she felt panic whenever she was on Rising Sun Avenue and tried to avoid the street, and she did not sleep well. (N.T. 1/21/05 at 82.)

After the plaintiffs moved in September of2001, their rent was $200 to $300 higher. They were not able to find another apartment which they could afford. (N.T. 1/20/ 05 at 127-28; N.T. 1/21/05 at 68.)

V. DISCUSSION

A. Judgment N. O. V.

The defendant contended that the evidence was not sufficient to establish the prima facie elements of a negligence claim based on a landowner’s duty to business invitees (citing N.T. 1/26/05 at 4-7) or on a landlord’s duty to tenants (citing N.T. 1/25/05 at 152-55). The defendant also argued that the evidence was not sufficient to establish the prima facie elements of a contract claim based on the implied warranty of habitability (citing N.T. 10/12/04 at 127-30; N.T. 1/26/05 at 96-97) or on the implied covenant of quiet enjoyment habitability (citing N.T. 10/12/04 at 127-30; N.T. 1/26/05 at 96-97).

First, it should be noted that the jury was only asked to determine whether the defendant was negligent. Although we instructed the jury on elements of landlord-tenant law, the jury was not asked to decide if there had been a breach of contract. They were only asked to determine whether the breaches supported a claim of negligence.

In arguing against the defendant’s motion for judgment n.o.v., plaintiffs relied upon the following provisions of the Restatement of the Law, (Second) Torts:

Section 360 provides:

“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”

Section 302B states:

“An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm even though such conduct is criminal.”

Section 448 states:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”

Section 449 provides:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”

In the case at bar, we concluded that plaintiffs had sustained their burden of proving that defendant MAC was negligent and that the negligence was a substantial factor in causing them harm, by presenting credible evidence that: (1) defendant MAC, through its employees Ann Marie Doan and Jennifer Giraldo, was on notice that Herbert Roznowski, who was not the named tenant, was residing in Apartment 2-F; (2) Derek Johnson resided in Apartment 2-F with his stepfather Herbert Roznowski; (3) Derek Johnson was a sexual deviant who committed intentional torts on December 20, 2000, March 17, 2001 and May 19, 2001, that victimized Ms. Vasquez and Mr. Brito; (4) as of December 28, 2000, defendant MAC had notice that a sexual crime had been committed against Ms. Vasquez and that the perpetrator lived in Apartment 2-F; (5) McHugh undertook the responsibility to keep the building safe but took totally inadequate steps to do so; (6) between December 28,2000 and May 20,2001, the defendant took no reasonable steps to identify the perpetrator living in Apartment 2-F; (7) that after May 20, 2001, defendant took entirely inadequate steps to identify the perpetrator living in Apartment 2-F; (8) even after Derek Johnson was identified, defendant took no steps to evict him from the building; (9) plaintiffs were deprived of the quiet enjoyment of their apartment; (10) plaintiffs were forced to vacate their apartment, thereby suffering a constructive eviction; and (11) the plaintiffs both suffered physical, emotional and monetary damages as a result of the defendant’s negligence.

Therefore, we properly denied the defendant’s motion for judgment n.o.v.

B. New Trial

1. Evidence Regarding Derek Johnson

The defendant argued that we erred in allowing plaintiffs to introduce, offer evidence of, and otherwise make use of, documents and information concerning Derek Johnson’s alleged prior criminal record in support of their claim that defendant negligently failed to provide security (citing N.T. 1/20/05 at 76-85,76-88,89-101; N.T. 1/ 21/05 at 1-18) because: (1) as a matter of law, defendant had no duty to provide security; plaintiffs did not establish that Mr. Johnson’s alleged prior criminal record was relevant to its claim that defendant negligently failed to provide security (citing N.T. 1/25/05 at 116, 117-19); plaintiffs did not establish that any documents regarding Mr. Johnson’s alleged prior criminal record were admissible as official records (citing N.T. 1/20/05 at 76-77; N.T. 1/25/05 at 116,117-19) or business records (citing N.T. 1/20/05 at 76-77).

Although there was much argument about the admissibility of evidence concerning other sexual offenses committed by Johnson, in the end the juiy was given a rather sanitized account of Johnson’s history by Mr. Brito and Ms. Rathgeber. (See N.T. 1/20/05 at 84-86; N.T. 1/ 26/05 at 32,33,43-45.) Furthermore, no supporting documents were sent out with the juiy and none were requested by the jury. (N.T. 1/24/05 at 19.)

We properly held that the evidence was admissible to support the plaintiffs’ argument that if the defendant had done any investigation other than walks around the premises, after the plaintiff’s letter of December 28, 2000, they would have learned from public records the address and identity of Derek Johnson.

We correctly ruled that the evidence was based on both the business records and official records exception to the hearsay rule. Furthermore, even if the evidence was inadmissible hearsay, defendant was in no way prejudiced because there has been no allegation that the documents submitted by the plaintiffs were in any way false or inaccurate, or that they did not pertain in fact to the Derek Johnson who resided in Apartment 2-F. We properly denied the defendant a new trial on this issue.

2. Testimony of Police Officer Wilson

The defendant contended that we erred in permitting plaintiffs to introduce into evidence the deposition testimony of Police Officer Wilson (citing N.T. 1/24/05 at 10-15).

Officer Wilson was deposed. Approximately two weeks prior to trial, she delivered a child and was on maternity leave. Neither the Special Victims Unit nor the City Solicitor’s Office would accept plaintiff’s subpoena or permit her to testify because she was not on duty and police department regulations forbid it. (N.T. 1/24/05 at 10-15.) Therefore, we properly ruled that she was an unavailable witness and her deposition testimony was admissible. Pa.R.C.P. 4020(a)(3).

The content of the deposition was relevant and admissible. (See N.T. 1/24/05 at 32-110.)

3. Jury Charge

The defendant argued that we erred in charging the jury on, and submitting this case to the jury on, plaintiffs’ negligence claims (citing N.T. 1/26/05 at 4-7; N.T. 1/26/05 at 16-17; N.T. 1/25/05 at 152-55) and contract claims (citing N.T. 1/25/05 at 127-30; N.T. 1/26/05 at 96-97).

We correctly concluded that the plaintiffs had proven their claim that the defendant was negligent. We properly instructed the jury on negligence, the obligations and duty of care of an occupier of land, and we also properly instructed them on landlord-tenant law only as it pertained to the negligence claim. (N.T. 1/26/05 at 81-83, 90-95.)

Defendant contended that we erred in charging the jury on “a trespasser” (citing N.T. 1/26/05 at 13-15, 96-97).

The defense position was that there was no trespass because the door leading into the vestibule was not locked and was open to the public. (N.T. 1/26/05 at 13.)

We concluded that a trespass could occur even under those circumstances. Derek Johnson was neither a tenant nor a guest of a tenant, because the tenant (Olga Roznowski) was dead. Management never inquired as to whom was living in Apartment 2-F. Therefore, we properly charged the jury on the law regarding a criminal intrusion and trespass. (N.T. 1/26/05 at 92-93.)

Defendant argued that we erred in charging the jury on, and permitting the jury to consider and award, damages for harm such as pain and suffering, emotional distress, embarrassment and loss of life’s pleasures (citing N.T. 1/25/05 at 123-25).

At the charging conference, defense counsel argued that in order to support a claim of emotional distress, plaintiff Vasquez needed a doctor to come in and support her claims of what happened to her as far as not being able to sleep and the fact that she was depressed. Counsel did not argue that it was necessary that plaintiff received treatment in order to recover. (See N.T. 1/25/05 at 124-25.)

In Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970), the Pennsylvania Supreme Court abandoned the requirement of a physical impact in favor of a “zone of danger” rule where the complainant was in personal danger of impact from a negligently created force. The Supreme Court thus established a cause of action for negligent infliction of emotional distress where the complainant’s injury resulted from his or her reasonable fear of injury. See also, Covello v. Weis Markets Inc., 415 Pa. Super. 610, 610 A.2d 50 (1992).

In the case at bar, plaintiff Vasquez did not suffer an impact. However, she was certainly within the zone of personal danger and shock when she witnessed Derek Johnson masturbating within a few feet of her person.

Therefore, she was entitled to recover damages for emotional distress.

Ms. Vasquez’ sister, Frances Morales, graduated from a university with a degree in psychology, continued her education in the field and had been working at the Northeast Community Mental Health Center in Philadelphia. (N.T. 1/21/05 at 98-99.)

The court permitted her to testify about the demeanor of her sister during the period in question: that she was sad, weepy, in a bad temper, afraid of the dark and unable to sleep. (N.T. 1/26/05 at 101-102.)

Mr. Brito testified, without objection, that his wife suffered from “depression, stress, frustration, panic” and she was not sleeping well. (N.T. 1/20/05 at 121.)

A co-worker of plaintiff’s, Elasa Oballas, testified without objection, that after the second incident in March of 2001, she sensed that Ms. Vasquez “was in a depression. She was very afraid.” (N.T. 1/21/05 at 106.)

In Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 590, 798 A.2d 742,752 (2002), our Supreme Court said that: “The law is well established that expert testimony is not necessary where the cause of an injury is clear and where the subject matter is within the experience and comprehension of lay jurors. As the Superior Court so aptly noted, laypersons are certainly capable of comprehending, without the assistance of an expert, appellees’ mental and emotional damages....”

We correctly held that the testimony of plaintiff Vasquez, supported by the testimony of her husband, sister and co-worker, was sufficient to support a jury instruction on emotional distress, embarrassment and loss of life’s pleasures. (N.T. 1/26/05 at 89-90.)

Mr. Brito suffered a physical injury as a result of his mistaken confrontation with the police on March 17, 2001. He too was entitled to compensation for his pain and suffering, emotional distress and loss of life’s pleasures for the period of his disability.

For the reasons set forth above, the defendant’s motion for post-trial relief was denied.

      . Our page references to N.T. of January 20, 2005, are to the volume that includes opening statements.

      . Plaintiff Vasquez testified that the incident occurred on Saturday, which would make it December 23 not December 20, 2000.

      . This unit of the Philadelphia Police Department is actually called the Special Victims Unit. (N.T. 1/24/05 at 32.)

      . Johnson was sentenced on September 25, 2001.

      . Although no details were placed in evidence, court records indicate that Johnson was convicted of loitering and prowling and given two years probation. He was sentenced to an additional year of probation in 2003, pursuant to a violation of probation hearing.

      . Criminal records reveal that Johnson was also arrested on September 13,2002, and convicted in February 10,2003, of indecent exposure, luring a child and other similar offenses and sentenced to less than one year in county jail. On June 14, 2005, he was arrested for indecent exposure, open lewdness and disorderly conduct and awaits trial.


author: KISTLER, J,

text:
    Commonwealth v. Miller

      C.P. of Centre County,
    no. CP-14-CR-1052-2005.

      Lance Marshall, for Commonwealth.

      Casey McClain, for defendant.
    November 14, 2005
   KISTLER, J,

Presently before this court is Seth M. Miller’s (defendant) petition for writ of habeas corpus. This petition relates to a recent driving under the influence charge and defendant’s refusal to submit a blood sample.

FACTUAL BACKGROUND

On April 26,2005, Trooper Rogers of the Pennsylvania State Police responded to a one vehicle accident on State Route 322 in Harris Township, Pennsylvania. The driver of the vehicle was defendant. After denying he had imbibed any alcoholic beverages, defendant later admitted to drinking “about four beers.” (N.T. June 22, 2005 p. 8.) Trooper Rogers administered field sobriety tests to defendant. Defendant failed each test. Trooper Rogers then read defendant his Miranda warnings and the implied consent warnings to extract a blood sample. Trooper Rogers read aloud to defendant the old DL-27 form, but not the updated DL-26 form. Trooper Rogers warned defendant that his license would automatically be suspended if he were to refuse the blood test, but failed to warn defendant of possible jail time and a fine as indicated in the updated DL-26 form. Having heard the penalty for refusal pursuant to the DL-27 form, defendant opted to refuse the blood test. Defendant now challenges the Commonwealth’s sufficiency of evidence relating to the driving under the influence with refusal charge based on the theory that Trooper Rogers should have read him the DL-26 form, not the DL-27 form.

DISCUSSION

“A pretrial petition for writ of habeas corpus is similar in purpose to a preliminary hearing. . . . The focus of a pretrial habeas corpus petition is on whether the Commonwealth possesses sufficient evidence to require a defendant to be held in government custody until he may be brought to trial.... A petition for writ of habeas corpus ‘is the proper means for testing the finding that the Commonwealth has sufficient evidence to establish a prima facie case.’ ” Commonwealth v. Lutz, 443 Pa. Super. 262, 266, 661 A.2d 405, 407 (1995) (citations omitted) (emphasis in original) quoting Commonwealth v. Morman, 373 Pa. Super. 360, 363, 541 A.2d 356, 357 (1988).

In license suspension cases under section 1547(b) of the Vehicle Code, the Commonwealth must establish that the driver involved: “(1) was arrested for driving while under the influence of alcohol; (2) was asked to submit to a breathalyzer test; (3) refused to do so; and (4) was specifically warned that a refusal would result in the revocation of his driver’s license.” PennDOT v. O’Connell, 521 Pa. 242, 248-49, 555 A.2d 873, 876 (1989).

“It shall be the duty of the police officer to inform the person that: (i) the person’s operating privilege will be suspended upon refusal to submit to chemical testing; and (ii) if the person refuses to submit to chemical testing, upon conviction or plea of violating section 3802(a)(1), the person will be subject to penalties provided in section 3804(c).” 75 Pa.C.S. § 1547(b)(2).

The DL-27 form, read if a driver violates section 3808(a)(2), addresses the illegal operation of a vehicle without an ignition lock. The DL-26 form, however, addresses a violation of section 3802 of the Vehicle Code. Section 3802 applies to the general impairment of a driver. The DL-27 form conspicuously states in large bold letters “Do Not Use This Form When 3802 DUI is Suspected (Use DL-26 instead).” Under the terms of the DL-27 form, a driver is faced with a penalty of at least a six-month license suspension. Under the terms of the DL-26, a driver faces a penalty of 12- to 18-month license suspension.

In the present case, Trooper Rogers read defendant the incorrect implied consent form. As stated earlier, the penalties for refusing a blood test under the DL-27 and the DL-26 forms are different. While Trooper Rogers advised defendant that a refusal of the blood test would result in a mandatory license suspension, he failed to inform defendant about the mandatory jail time and fine. This court believes these additional penalties are vital pieces of information for a driver in deciding whether to refuse or consent to a blood test.

The Commonwealth argues all it is required to prove is that defendant refused a chemical analysis of his blood. However, this court strains to see how defendant could refuse the terms and penalties of an improperly read form, as different penalties attach to different implied consent forms. Simply proving defendant refused a blood analysis fails to address the issue of penalty. For example, a defendant may choose to refuse a blood analysis if he or she will lose their license for six months. But, the same defendant may choose to consent to the same blood test if refusal would result in a license suspension of one year, as well as face jail time and a fine. As such, this court determines defendant did not give appropriate refusal of the implied consent form because Trooper Rogers read defendant the improper form.

ORDER

And now, November 14, 2005, defendant Seth M. Miller’s petition for writ of habeas corpus is hereby granted, as such count no. 1 of the information is dismissed.

      . Prior to the new driving under the influence law being enacted in February 2004, the only penalty for refusal of a blood test was a license suspension. The officer was required to inform a motorist that if he or she refused a blood test, their license would automatically be suspended. The form an officer was to read was the DL-27 form. Now, after February 2004, an officer must warn a motorist that if he or she refuses a blood test, their license will automatically be suspended and, if convicted, face mandatory jail time and a fine. The form an officer must now read is the DL-26 form.