author: WETTICK, J.,

text:
    Helfrick v. UPMC Shadyside Hospital

      C.P. of Allegheny County,
    no. GD03-010082.

      Richard T. Haft and Patrick J. Loughren, for plaintiff.

      Eugene A. Giotto, for defendants UPMC Shadyside Hosp., UPMC Rehab. Hosp., Heartland Health Care Center, Health Care and Retirement Corp., Ismail-Breigi and Chu.

      Jeanne Welch Sopher, for defendants Skura and Mieckowski.

      Giles J. Gaea and Alan S. Baum, for defendants Weber, Casey and Levy.

      Lynn E. Bell, for defendant Hall.

      Robert J. Pfajf and Suzanne Oppman, for defendant Levenson.
    October 7, 2003
   WETTICK, J.,

This opinion and order of court addresses two issues: (1) whether a court may open a judgment of non pros for failure to file a certificate of merit entered on the 62nd day following the filing of the complaint only if the plaintiff can meet the three-prong test of Pa.R.C.P. 3051; and (2) does the entry of a judgment of non pros for failure to file a certificate of merit preclude the plaintiff from bringing a second lawsuit on the same causes of action if the statute of limitations has not run.

Pa.R.C.P. 1042.3(a) provides that in an action based on allegations that a licensed professional deviated from the acceptable professional standard, the attorney for the plaintiff shall file with the complaint or within 60 days after the filing of the complaint a certificate of merit signed by the attorney. Pa.R.C.P. 1042.6(a) provides that the prothonotary, upon praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided there is no pending timely filed motion seeking to extend the time to file the certificate.

Plaintiff’s complaint was filed on May 29,2003, raising professional negligence claims against 15 healthcare providers. The 60th day from the filing of the complaint was July 28, 2003. Judgments of non pros were entered on behalf of most defendants, pursuant to praecipes filed by defendants’ counsel, on July 30 and July 31, 2003.

Relief from a judgment of non pros is governed by Rule 3051 which provides that if the relief sought from a judgment of non pros includes the opening of the judgment, the petition shall allege facts showing (1) the petition is timely filed, (2) there is a reasonable explanation or a legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action. The explanatory comment — 1991 to this rule states that this rule “will apply in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by praecipe as of right or by the court following a hearing.” The comment further states that this rule “provides for uniformity in the requirements of the petition to open such a judgment.”

Plaintiff’s petition does not set forth a reasonable explanation or legitimate excuse for the inactivity (the inactivity being the failure of plaintiff’s counsel to file within the 60-day period a certificate of merit or a motion to extend the time for filing the certificate). This will be so in almost every case in which a judgment of non pros is entered for failure to file a certificate of merit. The plaintiff who has a reasonable explanation or legitimate excuse for not being able to timely file a certificate of merit may, instead, file a motion to extend the time for filing the certificate on or before the filing date that the plaintiff seeks to extend. The filing of the motion to extend tolls the time period within which a certificate of merit must be filed until the court rules on the motion. Consequently, an explanation for the inactivity requires an explanation as to why the plaintiff did not within the 60-day period file a motion to extend the time for filing the certificate of merit.

Plaintiff contends that the judgments should be opened because, the attorneys for defendants “ran to court” to enter judgments two days after the 60-day time limit expired. The attorneys for defendants never contacted plaintiff’s counsel to ascertain whether plaintiff had an expert before obtaining their judgments.

This contention is without merit because there is no requirement in the Rules of Civil Procedure for a defendant to give notice to the plaintiff’s counsel before filing a praecipe for the entry of a judgment of non pros for failure to file a certificate of merit. The provisions of Pa.R.C.P. 237.1, which require a defendant to give notice of its intention to file a praecipe for the entry of a judgment of non pros, do not apply. Rule 237.1(a)(1) provides that, as used in this rule, judgment of non pros “means a judgment entered by praecipe pursuant to Rules 1037(a) and 1659.” Thus, Rule 237.1 does not apply to a judgment of non pros entered pursuant to Rule 1042.6 for failure to file a certificate of merit. Furthermore, a note to Rule 1042.6 states that “Rule 237.1 does not apply to a judgment of non pros entered under this rule.”

Plaintiff also relies on Pa.R.C.P. 126 which provides that the court at any stage of any action may disregard any error or defective procedure which does not affect the substantial rights of the parties. However, Rule 126 cannot be used to rewrite Rules of Civil Procedure.

If a court were to apply Rule 126 to a petition to open a judgment of non pros for failure to file a certificate of merit unless the defendant can show prejudice, the petition would almost always be granted. Defendants are not going to be able to show that they were prejudiced by the late filing of a certificate of merit regardless of whether the delay involves 10 days, 30 days, or 90 days. Consequently, the use of a prejudice standard would eliminate the rule’s deadlines for filing certificates of merits. If, on the other hand, the court were to apply Rule 126, using a cause-shown standard, the plaintiff would be no better off than if the court looked only to Rule 3051 which allows relief where there is a reasonable explanation or legitimate excuse for the inactivity.

If trial judges wish to provide relief where there has been a judgment entered shortly after the 60th day and the petition to open is promptly filed, each judge will be creating a new deadline based on that judge’s view of what is fair. One judge may decide to open the judgment whenever the petition, along with a certificate of merit, is filed within seven days of the entry of the judgment of non pros; another may use a 10-day standard. These deadlines would have nothing to do with the language within Rules 1042.6 and 3051. Trial judges would be creating a second safety net (the first being the timely filed motion to extend the time for filing the certificate provided for in Rule 1042.3(d)) where the rules do not do so. This is not a proper application of Rule 126.

Plaintiff also argues that since his petition to open was filed within 10 days of the entry of the judgment of non pros and since he attached certificates of merit to the petition, his petition to open is governed by Pa.R.C.P. 237.3. This rule provides for a court to open a judgment of non pros where the petition is filed within 10 days after entry of the judgment if the petitioner has attached a verified copy of a complaint that states a cause of action. This argument is without merit because Rule 237.3 states that it applies to a petition for relief from a judgment entered pursuant to Rule 237.1 and, as I have previously discussed, Rule 237.1 only applies to judgments of non pros entered pursuant to Rules 1037(a) and 1659.

Plaintiff contends that Rule 237.3 applies because a note to Rule 1042.6 states only that “Rule 237.1 does not apply to a judgment of non pros entered under this rule.” According to plaintiff, it is significant that the note does not also say that Rule 237.3 does not apply. This contention is without merit for several reasons.

First, Rule 237.3 states that it applies only to a judgment of non pros entered pursuant to Rule 237.1. Thus, a note to Rule 1042.6 which says that Rule 237.1 does not apply to judgments entered pursuant to Rule 1042.6 includes other rules that refer to Rule 237.1.

Second, while Rule 1042.6 refers to the entry of a judgment of non pros, none of the rules governing certificates of merit (i.e., Rules 1042.1-1042.8) refer to the opening of a judgment of non pros entered pursuant to Rule 1042.6. There would be no reason for rules that do not refer to the opening of a judgment of non pros to include a note referring to a rule governing the opening of a judgment of non pros that, on its face, does not apply to judgments entered pursuant to Rule 1042.6.

Third, it is clear from the language of Rule 237.1 et seq. that the entire rule applies only to judgments of non pros entered pursuant to Rules 1037(a) and 1659. This is reinforced by a note to Rule 1042.6, the purpose of which is to make it clear that the defendant does not need to provide a notice of intention to file a praecipe for the entry of judgment of non pros. If the Supreme Court had intended for Rule 237.3 to apply to judgments of non pros that do not come within the definition of judgments of non pros covered by Rule 237.1 et seq., it would not have expressed its intention solely by including a note to Rule 1042.6 which never mentioned Rule 237.3.

Plaintiff’s final argument relates only to defendants who had not been served at the time counsel for these defendants filed praecipes for the entry of judgments of non pros for failure to file a certificate of merit. Plaintiff’s counsel contends that a judgment of non pros may not be entered against a party that has not been served.

I disagree. The rules make no reference to service. Rule 1042.3 requires a certificate of merit to be filed within 60 days after the filing of the complaint.

For these reasons, I am denying plaintiff’s petition to open judgments of non pros entered prior to the untimely filing of certificates of merit.

II.

In his petition to open, plaintiff alleges that the statute of limitations has not run. The petition seeks a court order permitting the refiling of the complaint in a second lawsuit instituted prior to the expiration of the statute of limitations. While this is not relief that may be provided in response to a petition to open a judgment of non pros, all parties requested that I address this issue at this time.

The dismissal of plaintiff’s complaint for failure to file a certificate of merit within the required time is not a ruling on the merits. This requirement of filing a certificate of merit with the complaint or within 60 days thereafter is similar to the requirement of filing a complaint in an action commenced through the filing of a praecipe for a writ of summons. This is a step that the plaintiff must take before the merits of the plaintiff’s claims will be addressed. See e.g., Pa.R.C.P. 1042.4 which provides that where the certificate is not attached to the complaint, the defendant is not required to file a responsive pleading until service of the certificate of merit.

Case law provides that a non pros entered against a plaintiff for failure to file a complaint pursuant to Pa.R.C.P. 1037 does not bar a second action. See 3 Goodrich-Amram 2d §1037(a):7 (footnotes omitted):

“Section 1037(a):7 Effect of non pros upon right to bring second action

“A non pros against a plaintiff is not res judicata, and thus does not bar the plaintiff from commencing another action upon the same cause of action, provided the statute of limitations has not expired, and that the costs of the non pressed action have been paid.”

In Bucci v. Detroit Fire & Marine Insurance Co., 109 Pa. Super. 167, 167 A. 425 (1933), a fire which destroyed the plaintiffs’ property occurred on April 16, 1930; the plaintiffs instituted this lawsuit through a writ of summons filed on October 28, 1931; no statement of claim was filed within 60 days as required by a rule of court; a judgment of non pros was not entered until January 12, 1932, for the plaintiffs’ failure to file a statement of claim. The plaintiffs had paid the costs and instituted a second lawsuit on December 28, 1931.

The lower court dismissed the second lawsuit on the ground that the plaintiffs were seeking to revive an action in direct violation of the purpose and intent of . the rule of court requiring the filing of a statement of claim within 60 days after the institution of the action. The Superior Court reversed.

The Superior Court stated “the legal effect of the non pros could not prevent the entry of a suit for the same cause of action within the statute of limitations.” Id. at 174, 167 A. at 427-28. The court disagreed with the trial court’s ruling that to hold otherwise would annul and render useless the rule of court requiring the filing of a statement of claim within 60 days. “The penalty suffered by the plaintiffs is the delay in the trial of their cause and the payment of costs incurred, yet if the statute of limitations has not expired the non pros of the first action cannot prevent the institution of the second suit.” Id. at 174, 167 A. at 428.

In reaching this decision, the court relied on the following language in the case of Murphy v. Taylor, 63 Pa. Super. 85 (1916):

“Where after a nonsuit [non pros] has been entered the plaintiff brings a second action against the same defendant for the same cause, within a reasonable time, the court will stay the proceedings until the costs of the first suit are paid; but the proceedings will not be quashed.” Bucci, 109 Pa. Super. at 174, 167 A. at 427.

In Gordon-Stuart Ltd. v. Allen Shops Inc., 239 Pa. Super. 35, 361 A.2d 770 (1976), the plaintiffs filed a complaint naming Frantz as one of several defendants. Frantz filed preliminary objections seeking a more specific complaint. The lower court sustained the preliminary objections on March 25,1974, and ordered the plaintiff to file a more specific complaint within 20 days. The plaintiff failed to do so. On October 4,1974, Franz caused a judgment of non pros to be entered against the plaintiffs.

The plaintiffs did not take any action to have the non pros removed. However, on December 24, 1974, they commenced a second action identical to the original action. Frantz filed preliminary objections which included a motion to strike the complaint based on the previous judgment of non pros. The trial court granted the motion. The Superior Court reversed.

The Superior Court ruled that a judgment of non pros was simply a dismissal for want of diligent prosecution and not a judgment on the merits. Thus, the judgment did not preclude the plaintiffs from commencing a second action on the same cause, provided that the statute of limitations had not expired and the plaintiffs had made payment of costs of the former suit:

“Our opinion in Bucci was predicated on the fact that a judgment of non pros is simply a dismissal for want of diligent prosecution and is not a judgment on the merits. In either instance, that is, where the plaintiff is non-prossed for neglecting to file a seasonable complaint, or failing to file an amended pleading, the judgment for the defendant is not on the merits and does not preclude the plaintiff from commencing another suit on the same cause of action, provided that the statute of limitations has not expired and the plaintiff has made payment for the costs of the former suit.” 239 Pa. Super. at 38-39, 361 A.2d at 772. (footnote omitted)

In Bon Homme Richard Restaurants Inc. v. Three Rivers Bank and Trust Co., 298 Pa. Super. 454, 444 A.2d 1272 (1982), the first lawsuit was dismissed pursuant to a local rule providing for termination of cases in which there has been inactivity for a period of at least two years. This local rule was adopted to implement Pa.RJ.A. 1901 which directed each common pleas court to adopt local rules dismissing stale claims. The plaintiff did not petition to reinstate the case.

Thereafter, the plaintiff filed a second lawsuit raising the claims raised in the prior lawsuit. The defendant filed preliminary objections seeking dismissal by virtue of the court order granting the motion to strike entered in the previous proceedings.

The Superior Court affirmed the ruling of the trial court dismissing this second action. The court stated that to allow a second action would make a mockery of the judicial policy that Judicial Administration Rule 1901 was designed to serve.

In Haefner v. Sprague, 343 Pa. Super. 342, 494 A.2d 1115 (1985), the plaintiff commenced a legal malpractice action by summons. He was thereafter served with a riile to file a complaint within 20 days. He failed to do so. The defendants filed a praecipe to enter a judgment of non pros. The plaintiff filed a petition to open which was subsequently denied.

The plaintiff commenced a second action. The defendants filed preliminary objections seeking dismissal based on the entry of the judgment of non pros in the initial action; they relied on Bon Homme Richard Restaurants Inc.

In Haefner, the Superior Court stated that Bon Homme did not apply because “local rules enacted pursuant to Rule 1901 are intended to reach cases inactive for an unreasonable length of time, and may only be dismissed after reasonable notice.” 343 Pa. Super. at 346, 494 A.2d at 1117. The court ruled that the impact of a judgment of non pros entered for failure to file a complaint is governed by the line of cases which follow the reasoning of Bucci v. Detroit Fire & Marine Insurance Co. Inc., cited in Gordon-Stuart:

“The legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations.” 343 Pa. Super. at 347, 494 A.2d at 1118. (citations omitted)

In Hatchigian v. Koch, 381 Pa. Super. 377, 553 A.2d 1018 (1989), the defendants filed an appeal from a district justice judgment and ruled the plaintiff to file a complaint within 20 days pursuant to Pa.R.C.P.D J. 1004(B). Upon failure to do so, the defendants obtained a judgment of non pros. Thereafter, the trial court denied the plaintiff’s motion to set aside the judgment.

Plaintiff instituted a second action raising the same claim. The trial court granted the defendants’ motion for summary judgment based on the ground that a second action could not be instituted. The Superior Court reversed:

“It is settled law that where plaintiff has suffered a judgment of non pros, he may later commence a new action between the selfsame parties and alleging the selfsame cause of action so long as the second action is commenced within the applicable statute of limitations. . . . Since a non pros is not a judgment on the merits, it cannot have res judicata effect....

“Application of this principle to the instant matter compels us to hold that Hatchigian’s present common pleas court action is not barred by the principle of res judicata. We are further persuaded that our resolution is correct because if we were to hold that Hatchigian did not maintain the right to commence his new action throughout the remaining period of the statute of limitations, we would effectively abbreviate his limitations period. The entry of the non pros would place the plaintiff in the same position as if the statute of limitations had run. In contrast a plaintiff who had originally filed a suit in common pleas and been non prossed could still file an identical new action until the limitations period had expired.” Id. at 381, 553 A.2d at 1020. (citations omitted)

Defendants contend that the case law no longer differentiates between a judgment of non pros entered for failure to comply with pleading requirements and a judgment of non pros entered because the claim is stale. According to defendants, the case law now provides that an unopened judgment of non pros bars a second lawsuit even if the statute of limitations has not run. Defendants rely on two cases: Gates v. ServiceMaster Commercial Service, 428 Pa. Super. 568, 631 A.2d 677 (1993), and Schuylkill Navy v. Langbord, 728 A.2d 964 (Pa. Super. 1999).

In Gates, a non pros was entered following two years of inactivity pursuant to Penn Piping Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992). The court’s ruling that the plaintiff would not be permitted to bring a second action even if the statute of limitations had not run is consistent with the case law governing a dismissal of stale claims pursuant to a local rule implementing Judicial Administration Rule 1901. Since a dismissal under Penn Piping required a finding of prejudice (which was presumed where there was inactivity for at least two years), case law would not allow a second lawsuit against a party who obtained dismissal of the first action by establishing prejudice.

However, the Gates opinion contains the following dicta:

“The statute of limitations comes into play only in the sense that, if it has not run on the particular cause of action, the plaintiff may seek a reinstatement of the suit with the payment of costs and satisfaction of the tripartite test for opening judgment of non pros. Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63 (1962); Bon Homme Richard Restaurants Inc., supra; Smith v. SEPTA, 297 Pa. Super. 267, 443 A.2d 829 (1982); Commonwealth v. Bailey, 278 Pa. Super. 51, 419 A.2d 1351, 1352 (1980); Corcoran v. Fiorentino, 277 Pa. Super. 256, 419 A.2d 759 (1980); Public Welfare v. Flowers, 46 Pa. Commw. 326, 407 A.2d 896, 897 n.2 (1979); Thompson v. Cortese, 41 Pa. Commw. 174, 398 A.2d 1079, 1082 (1979); cf. Brigham v. Elgin’s of Philadelphia Inc., 406 Pa. 99, 176 A.2d 404 (1962) (Personal injury accident occurred May 1958; suit instituted by writ of summons July 1958; defendant ruled plaintiff to file a complaint August 1958; plaintiff never filed a complaint; non pros entered December 1958; petition to remove non pros filed December 1960; and petition to open denied on grounds that plaintiff did not act with reasonable promptness and there was an absence of compelling equities).” 428 Pa. Super. at 579-80, 631 A.2d at 682-83. (emphasis in original)

None of the cases cited in Gates support the proposition that the plaintiff must obtain reinstatement of the initial suit where the non pros is based on the plaintiff’s failure to comply with the pleading requirements.

Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63 (1962), involved a non pros for failure to file a complaint which was entered after the statute of limitations had run. The only issue the Supreme Court addressed was whether the trial court erred in denying the plaintiff’s request to open the judgment of non pros.

I have already discussed Bon Homme Richard Restaurants Inc., supra: a non pros was entered pursuant to a local rule for two years of inactivity of record; the Superior Court ruled in Haejher that Bon Homme did not alter the case law permitting a plaintiff whose initial lawsuit was non pressed for failure to file a complaint to institute a second action if the statute of limitations has not run.

Smith v. SEPTA, 297 Pa. Super. 267, 443 A.2d 829 (1982), involved the plaintiff’s appeal from the denial of her petition to reinstate an action that was dismissed by a local rule (implementing Judicial Administration Rule 1901) for inactivity of record for more than two years. Also, the statute of limitations had run at the time the action was dismissed.

Commonwealth v. Bailey, 278 Pa. Super. 51, 419 A.2d 1351 (1980), involved a petition to expunge a criminal record which had been dismissed for lack of prosecution. The petitioner filed a new petition identical to the earlier one which the trial court dismissed for failure to appeal from the prior order of court. The Superior Court reversed. It stated the dismissal of the first petition is similar to a judgment of non pros entered in a civil case: “[I]t is well settled that in both of these situations the plaintiff is permitted to commence an identical second action provided the statute of limitations has not expired and the costs of the previous action have been paid.” Id. at 54, 419 A.2d at 1352. (citations omitted)

Corcoran v. Florentino, 277 Pa. Super. 256, 419 A.2d 759 (1980), involved an appeal of a dismissal for inactivity pursuant to a local rule implementing Judicial Administration Rule 1901. Also, the statute of limitations had run.

Department of Public Welfare v. Flowers, 46 Pa. Commw. 326, 407 A.2d 896 (1979), addressed a petition to reactivate a lawsuit dismissed for failure to prosecute for a period in excess of two years pursuant to a local rule adopted to implement Judicial Administration Rule 1901.

Thompson v. Cortese, 41 Pa. Commw. 174, 398 A.2d 1079 (1979), was a mandamus action in which the court ruled that the prothonotary lacked the authority to accept a praecipe to enter judgments based on dismissal orders entered under a local rule implementing Judicial Administration Rule 1901 when there has been no activity of record for a period of two years. The opinion, citing Gordon v. Stuart Ltd. and Bucci v. Detroit Fire & Marine Insurance Co., states: “A non pros does not deny relief in that it is not an adjudication on the merits. Thus, if the statute of limitations has not run, a plaintiff previously non pressed can maintain a second suit upon the identical cause of action, provided only that he pay the costs incurred in the prior action.” 46 Pa. Commw. at 328, 398 A.2d at 1082.

In Brigham v. Eglin’s of Philadelphia Inc., 406 Pa. 99, 176 A.2d 404 (1962), the only issue the court addressed was whether the lower court had abused its discretion in refusing to grant a petition to remove a judgment of non pros filed more than two years after the entry of the judgment.

In summary, the cases cited in Gates that have any bearing on whether a second action may be instituted where the initial action was dismissed, recognize that a second action may be instituted in the situation in which a judgment of non pros was entered for reasons other than staleness or prejudice.

Defendants also rely on Schuylkill Navy v. Langbord, supra, 728 A.2d 964. Ajudgment of non pros was entered dismissing the plaintiff’s initial complaint for failure to appear when the case was called for trial. A second complaint raising the same claims was also dismissed for the same reason.

The Superior Court ruled that a third action could not be instituted. Pa.R.C.P. 218 authorizes a court to enter a non pros when a plaintiff, without a satisfactory excuse, fails to appear at trial. Unless a non pros entered pursuant to Rule 218 is set aside, the plaintiff may not bring a new lawsuit raising the same claims. This ruling is consistent with prior case law holding that a dismissal of the plaintiff’s case for failure to appear at trial is not a voluntary nonsuit for purposes of Pa.R.C.P. 231. See Farabaugh Chevrolet-Oldsmobile Inc. v. Covenant Management Inc., 361 Pa. Super. 234, 522 A.2d 100 (1987).

The court in Schuylkill Navy — rather than basing its ruling on the rules governing a party’s failure to appear at trial — relied on the Gates dicta that a second lawsuit cannot be brought unless the previously entered judgment of non pros has been opened or stricken. However, the court’s opinion recognized that Rule 218 requires a plaintiff to establish a satisfactory excuse for failure to appear, and that the note to the rule requires a plaintiff to seek relief from the judgment under Rule 3051. Therefore, this holding, that a dismissal under Rule 218 for failure to attend trial bars a second action, has no impact on the case law allowing the filing of a second action within the statute of limitations where the prior action was dismissed for failure to comply with the pleading requirements of the Rules of Civil Procedure.

In summary, the dicta upon which defendants rely is not consistent with established case law which allows a plaintiff whose initial suit was dismissed for failure to file a complaint (a situation analogous to failure to file a certificate of merit) to bring a second action if the statute of limitations has not run.

For these reasons, I enter the following order of court:

ORDER

On October 7, 2003, it is hereby ordered that plaintiff’s petition to open judgments of non pros entered on July 30 and July 31, 2003, is denied.

      . In a separate opinion entered in these proceedings on September 29, 2003,1 struck a judgment of non pros dismissing plaintiff’s complaint as to Dr. Levenson. This judgment was entered after plaintiff filed beyond the 60th day a certificate of merit as to Dr. Levenson. I ruled that a judgment of non pros may not be entered if the certificate of merit is filed prior to the filing of the praecipe for the entry of a judgment of non pros.

      . A second complaint has been filed. Defendants will be filing a request to dismiss the new lawsuit based on my denial of plaintiff’s petition to open the judgments of non pros entered in this lawsuit. I will assume responsibility for the new lawsuit, at least until the lawsuit is ready to be tried. Obviously, my ruling in the new lawsuit will follow the ruling that I am making in these proceedings. The ruling in the new lawsuit will create an order that can at some time be challenged in the. appellate courts.

      . Under Pennsylvania case law (International Telephone and Telegraph Corporation v. Philadelphia Electric Co., 250 Pa. Super. 378, 378 A.2d 986 (1977)), a case dismissed for inactivity of record may not be reinstated unless the petition to reinstate is timely filed, there is a reasonable explanation or legitimate excuse for the default, and facts constituting a meritorious cause of action are alleged.

      . The presumption of prejudice following two years of inactivity is no longer the law in Pennsylvania. Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998).

      . The court’s opinion also refers to Rule 3051. However, Rule 3051 does not address the issue of whether a judgment of non pros bars a second lawsuit. It only addresses the procedure and standards for opening a judgment of non pros.


source: Caselaw Access Project

author: GOODHEART, S.J.,

license: Public Domain

text:
    DeMarco v. Robertson

      Bruce Ginsberg, for plaintiffs.

      Frank Gerolamo, William Banton and Jennifer McPeak, for defendants.
    March 21, 2003
   GOODHEART, S.J.,

I. INTRODUCTION

In February of 1997, plaintiff Richard DeMarco was admitted to John F. Kennedy Memorial Hospital in Philadelphia with lower abdominal pain. He underwent a complete abdominal work-up, including a colonoscopy and two CAT scans, which revealed the existence of a mass in his abdomen.

Defendant John Robertson III M.D., who saw Mr. DeMarco during his hospitalization, told Mr. DeMarco that he believed the mass “could be cancerous,” and recommended surgery to remove it.

In fact, the mass was not cancerous, and — according to Dr. Richard Goldstein, an expert witness called by the plaintiffs — Dr. Robertson should have realized that fact long before he performed the surgery. Dr. Goldstein stated that he formed that opinion because (a) biopsy results from the February colonoscopy came back negative for cancer, (b) by March 26,1997, as noted by Dr. Robertson, Mr. DeMarco’s symptoms had largely resolved, and (c) a follow-up CAT scan, performed on March 21, 1997 (which Dr. Robertson reviewed on April 4, 1997), had failed to show the presence of the mass at all.

According to Dr. Goldstein, the surgery was completely unnecessary, took far too long, and — because the physicians did not see to it that Mr. DeMarco’s body was properly supported throughout the procedure — resulted in Mr. DeMarco suffering brachial plexus injuries, which caused numbness in both of his hands and arms, and pain in his neck, shoulders, arms and hands, all of which continue to the present day.

Even the defense’s expert orthopedic surgeon, Dr. Karl Rosenfeld, stated that he believed that “the problem that evolved here was strictly from [the] positioning of [Mr. DeMarco’s] arms, and the length of the surgery.” (Rosenfeld deposition transcript, February 27, 2002, at 121-21). Though Dr. Rosenfeld declined to lay blame on any of the defendants specifically, it is clear that he, too, believed that improper monitoring of Mr. DeMarco’s position on the operating table was the primary — if not the sole — cause of his injuries.

This case was tried over several days in March 2002 before the Honorable Legróme Davis and a jury. During the charging conference, with Judge Davis, all parties agreed to dismiss defendants JFK Hospital and Elizabeth Pokropski from the case.

The evidence against the remaining defendants, Dr. Robertson, Harry Thomas M.D. (a surgeon who assisted Dr. Robertson with the surgery) and Zeenee David-Mian M.D. (the anesthesiologist during the operation) was submitted to the jury, which returned a defense verdict, finding no negligence on the part of those defendants.

The plaintiffs then moved for post-trial relief, and upon Judge Davis’ appointment to the federal bench, that motion was assigned to me for disposition.

By order dated February 3, 2003 (and docketed February 6, 2003), I granted the plaintiffs’ motion and awarded a new trial; Dr. Robertson, Dr. Thomas and Dr. David-Mian each filed a timely notice of appeal.

II. DISCUSSION

A. Res Ipsa Loquitur

Because medicine is not an exact science, and the human body is not susceptible to precise understanding, the mere occurrence of an injury does not ordinarily give rise to a presumption of negligence on the part of anyone, and an unfortunate outcome following medical treatment does not automatically bespeak malpractice. 82 A.L.R.2d 1262 at §2 (1962).

By the same token, however, the unusual character of a particular injury suffered while under a doctor’s care may permit an inference to be drawn that the injury could not have occurred unless the doctor was negligent, even though the precise nature of the negligence cannot be shown. This is the principle known as res ipsa loqui-tur — literally, “the thing speaks for itself.”

In Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974), the Pennsylvania Supreme Court adopted the formulation of res ipsa loquitur found in Restatement (Second) of Torts §328D, as the law of the Commonwealth:

“(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when—

“(a) the event is of a kind which ordinarily does not occur in the absence of negligence;

“(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and

“(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

“(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.

“(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.” Restatement (Second) of Torts §328D (1965).

“The doctrine of [res ipsa loquitur] allows an inference of negligence to arise from competent evidence, on the theory that in the ordinary course of events the injury complained of would not have occurred in the absence of negligence.” D’Ardenne by D’Ardenne v. Strawbridge & Clothier Inc., 712 A.2d 318, 321 (Pa. Super. 1998) (emphasis added), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998), quoted in Grandelli v. Methodist Hospital, 777 A.2d 1138, 1147 (Pa. Super. 2001).

In its purest form, “[w]here there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of the defendant is the most plausible explanation for the injury, the doctrine applies.” D’Ardenne, supra at 321; see also, Prosser & Keeton on the Law of Torts §40, at 257 (quoting Roark v. St. Paul Fire & Marine Insurance Co., 415 So.2d 295 (La. App.1982)).

Though Korvette’s was an escalator-injury case, the Superior Court subsequently held that res ipsa loquitur may also be applied in malpractice cases. Jones v. Harrisburg Polyclinic Hospital, 269 Pa. Super. 373, 410 A.2d 303 (1979). Still, “res ipsa loquitur is not often applied in medical malpractice actions; except in the most clear-cut cases, res ipsa loquitur may not be used in a medical malpractice action to abrogate the need for expert testimony or to shortcut the requirement that causation be established within a reasonable degree of medical certainty.” Grandelli, supra at 1147. Res ipsa loquitur may best be described as a bridge over an unavoidable gap in proof of causation where the evidence otherwise points quite strongly to negligence on the part of the alleged tort-feasor; it is not a substitute for proof of negligence in its entirety.

Where a plaintiff proceeds under res ipsa loquitur, and once all three elements of section 328D have been satisfied, it is then for the court to decide whether “reasonable persons may reach different conclusions regarding the negligence of the defendant. . . Leone v. Thomas, 428 Pa. Super. 217, 630 A.2d 900 (1993). If so, the court must instruct the jury accordingly, and the jury must determine, whether or not to apply res ipsa loquitur, and thus infer negligence from the facts presented. Id.

Addressing the elements in reverse order, the evidence in this case makes it clear that Mr. DeMarco’s brachial plexus injury occurred while he was on the operating table at JFK Hospital, undergoing surgery performed by Drs. Robertson and Thomas, with anesthesia administered by Dr. David-Mian.

Obviously, the physicians owed to Mr. DeMarco a duty of care sufficient to “protect [him] against preventable injuries which could reasonably occur during the performance of surgery.” Toogood v. Owen J. Rogal D.D.S., P.C., 764 A.2d 552 (Pa. Super. 2000), alloc. granted, decision pending, 568 Pa. 38, 791 A.2d 1154 (2002). Because brachial plexus injuries are not a normal (or even a common) result of properly performed colon surgery, the third element of section 328D has been satisfied.

Similarly, because Mr. DeMarco was unconscious during his surgery, the possibility that he contributed in any way to the occurrence of his injury has been eliminated, and because the operating room was under the exclusive control of the physicians while the surgery was being performed, it is equally unlikely that the injury resulted from an act or omission on the part of anyone other than one of the defendants. “It is precisely this type of case, one in which an unconscious patient is unable to aver the specific conduct which caused her injury, in which res ipsa loquitur applies.” Jones, supra at 379, 410 A.2d at 307. Thus, the second element of section 328D has also been established.

Finally, it appears from the evidence offered that Mr. DeMarco sufficiently established that his injuries were of a type that do not normally occur absent negligence to satisfy the first prong of section 328D.

Dr. Goldstein, the plaintiffs’ expert witness on colon and rectal surgery, Scott Jaeger M.D., the. plaintiffs’ expert on hand and arm surgery, and Athole Jacobi M.D., the plaintiffs’ anesthesiology expert, all stated that bra-chial plexus injuries do not occur from abdominal surgery in the absence of negligence. As cited above, even the defendant’s expert orthopedic surgeon, Dr. Rosen-feld, blamed the plaintiff’s injuries on the “positioning of his arms, and the length of the surgery . . .” and Dr. Robertson — who testified extensively in defense of his performance — offered no reasonable alternative explanation for Mr. DeMarco’s injuries.

Historically, courts have had difficulty articulating precisely to which types of malpractice cases res ipsa loquitur may be applied. One recurring theme in the res ipsa loquitur cases is that injuries to healthy areas of an unconscious patient’s body during surgery, particularly areas remóte from the field of operation, tend to suggest that negligence was the cause, thus supporting a jury instruction on res Ipsa loquitur, even in cases where direct proof of the specific act or acts of negligence is lacking. 82 A.L.R.2d 1262 at §19.

The extreme (and hypothetical) example of such remoteness of injury is where “a surgeon engaged in removing a tumor from a patient’s scalp would let his knife slip and cut off his patient’s ear, or where he undertook to stitch a wound on his patient’s cheek and by an awkward move would thrust his needle into the patient’s eye. It would be a matter of common knowledge and observation that such things do not ordinarily attend the service of one exercising ordinary skill and experience in the work of surgery because they involve ulterior or extraneous acts or omissions, the judgment of which would not require scientific opinion.” Donaldson v. Maffucci, 397 Pa. 548, 556, 156 A.2d 835 (1959).

Here, sufficient evidence was introduced to allow a jury to reasonably infer that some aspect of the care provided to Mr. DeMarco by the defendants was responsible for the brachial plexus injury that he suffered during the colon resection.

Whether or not the jury would have chosen to apply the inference, of course, is unknown, but — after considering the record of this case carefully — I believe that the jury should have been given that opportunity.

B. The Plaintiffs’ Other Allegations of Error

Because I believe that Judge Davis’ refusal to charge the jury on res ipsa loquitur requires a new trial, I will not discuss the plaintiffs’ other allegations of error in detail, except to note that it appears that the admission of portions of a learned treatise, specifically practice guidelines promulgated by the American Society of Anesthesiologists, during the direct examination of defense expert Norig Ellison M.D. was improper, and could support a grant of a new trial, at least as to Dr. David-Mian alone.

Even though some of the ASA guidelines utilized by Dr. Ellison during his testimony post-dated the surgery herein at issue, it appears that defense counsel presented sufficient evidence, through Dr. Ellison’s testimony, for the jury to find that compliance with the newer (and stricter) guidelines in effect in 2000 necessarily constituted compliance with the less-stringent guidelines that were in place in 1997.

Finally, a review of Dr. Ellison’s testimony reveals that his expert opinion was indeed supported by sufficient evidence to make it admissible; in any event, the plaintiffs did not object to its admissibility at the time the opinion was given, and have thus waived this issue.

III. CONCLUSION

I do not vacate a jury verdict lightly, particularly where — as here — I was not the trial judge.

As I stated at oral argument on the plaintiffs’ post-trial motions, the res ipsa loquitur issue “jumped out at me...” while I was reading the record of this case. In fact, in “20-some years sitting on med mal cases, it’s really the first time that I have seen the issue...” so clearly present.

Because I believe that the jury should have been charged on res ipsa loquitur, and because I believe such a charge, if given, could have altered the outcome here, I granted the plaintiffs a new trial, and I ask that the Superior Court affirm my decision accordingly.

      . Even though Majfucci predates Jones, supra, in which the Pennsylvania Supreme Court first announced that res ipsa loquitur could be utilized in medical malpractice cases, this portion of Majfucci opinion remains instructive, even though much of the remainder may no longer accurately state the law.


author: WETTICK JR., A.J.,

text:
    Supervalu Inc. v. Construction Engineering Consultants Inc.

      C.P. of Allegheny County,
    no. GD02-18944.

      Joseph L. Luciana, for plaintiff.

      Brian W. Ashbaugh and Steven P. Engel, for defendant CEC.

      Joseph J. Bonistalli, for defendant Ground Technology Inc./D’Appolonia Engineering Division.

      William J. Moorhead and Julia E. Snow, for defendant Rossman Hensley Inc.

      William S. Ferraro, for defendant Service Engineering.

      Francis X. McTiernan Jr., for additional defendant.
    April 8, 2004
   WETTICK JR., A.J.,

The motion of Construction Engineering Consultants Inc. (CEC) for a ruling that it is not required to file a certificate of merit with respect to its claim against additional defendant Planmark Inc. or, in the alternative, to extend the deadline for filing a certificate of merit is the subject of this opinion and order of court.

Pa.R.C.P. 1042.3(c)(2) excuses a defendant who has joined a licensed professional as an additional defendant from filing a certificate of merit “unless the joinder is based on acts of negligence that are unrelated to the acts of negligence that are the basis for the claim against the joining party.” The parties disagree over the scope of this provision excusing the joining party from filing a certificate of merit.

This is a lawsuit by the owner of a building to recover damages for losses incurred as a result of construction defects. The owner has raised claims against CEC based on CEC’s subsurface investigation of the soil conditions. In paragraph 52 of plaintiff’s complaint, plaintiff alleges that CEC was negligent in the exercise of professional judgment through:

“(a) failure to conduct a geotechnical investigation in accordance with good professional judgment and industry standards;

“(b) failure to provide a proper geotechnical basis and design criteria for the engineered slope and retaining wall system in accordance with good professional.judgment and industry standards;

“(c) failure to provide the geotechnical basis and design criteria for the building foundation in accordance with good professional judgment and industry standards;

“(d) failure to inspect, test and supervise the earthwork and retaining wall construction in accordance with good professional judgment and industry standards;

“(e) failure to supervise, coordinate and check the work of its consultant in accordance with good professional judgment and industry standards; and

“(f) failure to investigate and correct deficiencies in its work in accordance with good professional judgment and industry standards.”

In paragraph 53, plaintiff alleges that this negligence proximately caused or contributed to the property damage and loss of use of property suffered by plaintiff and the costs, expenses, and damages described in the complaint.

CEC’s complaint against Planmark Inc. is based on the following acts of negligence: Planmark should not have changed the location of the supermarket or authorized a different design for a retaining wall, and it should have followed CEC’s recommendations with respect to the design of the foundation.

In paragraph 58 of its complaint, CEC alleges:

“(58) CEC asserts that to the extent plaintiff sustained any of the damages alleged in its complaint, any such damages are solely the result of additional defendant Planmark’s decision to change the location of the supermarket, its decision to authorize a different design for the retaining wall, or its refusal to follow the CEC recommendations with respect to the design for the supermarket foundation.”

Planmark contends that the claims against the original defendant are not related to the claims against Plan-mark because the claims against Planmark will require different evidence and different experts. CEC agrees with Planmark that the claims are not the same. However, it contends that the term “related” should have a broader meaning. The claims are related because both claims will involve the presentation of evidence as to the cause of the collapse and who is responsible for the collapse. Thus, CEC’s claims against Planmark are related to plaintiff’s claims against CEC under the accepted meaning of the term “related.”

I agree with Planmark that Rule 1042.3(c)(2) requires CEC to file a certificate of merit. The language of this provision supports Planmarlc’s position. The issue is not whether the claims are related. This rule, instead, refers to a joinder based on “acts of negligence” that are unrelated to the “acts of negligence” that are the basis for the claims against the joining party. Acts of negligence are not related if they involve different activities and if different expert testimony is required for the defendant to establish its professional negligence claim against the additional defendant.

The purpose of Pa.R.C.P. 1042.1 et seq. is to protect licensed professionals from expending resources to defend professional liability claims that may never be substantiated by expert testimony, by requiring the party raising the claim to obtain a statement from an appropriate licensed professional that there exists a reasonable probability that the care, skill, or knowledge of the party being sued fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. The protection extends to claims raised against licensed professionals by defendants and additional defendants.

A certificate of merit is required whenever the plaintiff raises a professional liability claim (Rule 1042.3 (a)); whenever the defendant files a counterclaim asserting a claim for professional liability (Rule 1042.3 (c)(1)); and whenever the defendant or additional defendant asserts a professional liability claim (Rule 1042.3(c)(2)). A separate certificate of merit must be filed as to each licensed professional against whom a claim is asserted (Rule 1042.3(b)). Thus, the purpose of these rules is to bar any party from pursuing a professional liability claim against a licensed professional unless that party or some other party has a written statement from an appropriate licensed professional supporting a claim that the care, skill, or knowledge exercised by this licensed professional fell outside acceptable professional standards and that the conduct was a cause in bringing about the harm.

For these reasons, I enter the following order of court:

ORDER

On April 8, 2004, it is hereby ordered that:

(1) Defendant Construction Engineering Consultants Inc.’s motion for a ruling that it is not required to file a certificate of merit with respect to its claims against additional defendant is denied; and

(2) Construction Engineering Consultants Inc.’s deadline for filing a certificate of merit in connection with its complaint to join additional defendant is extended until May 4, 2004.

      . This motion was filed within 60 days of Construction Engineering’s filing of the complaint to join Planmark Inc. as an additional defendant.

      . I recognize that in this case CEC’s complaint also incorporates the allegations contained in plaintiff’s complaint. CEC, even if it does not file a certificate of merit, may pursue these claims under the provision of Rule 1042.3(c)(2) that the joining party need not file a certificate of merit where the joinder is based on the same acts of negligence that are the basis of plaintiff’s claim against the joining party. Thus, any judgment of non pros would not include the allegations in CEC’s complaint which expressly incorporate the allegations contained in plaintiff’s complaint.


author: STALLONE, J.,

text:
    Commonwealth v. Bybel

      C.P. of Berks County,
    no. 87-1578.

      Kevin F. Howard, for the Commonwealth.

      MadelynS. Fudeman and Molly K. Starr, for petitioner.
    April 15, 2004
   STALLONE, J.,

On November 2, 1988, a jury found the defendant, Peter A. Bybel, age 83, guilty on charges of third-degree murder, aggravated assault manifesting extreme indifference to the value of human life and aggravated assault involving causing bodily injury with a deadly weapon, arising out of the shooting death of David L. Renninger, age 29, on July 5, 1987.

At trial, the evidence revealed that Mr. Renninger died from a single gunshot wound to his back and that the bullet which caused the wound was fired from a .22 caliber Ranger rifle. The evidence further revealed that a .22 caliber Ranger rifle had been taken from the defendant’s house seven months prior to the shooting and turned over to his daughter and was found once again in the defendant’s house four days following the shooting. The rifle was marked and admitted into evidence at trial as exhibit 25.

On September 26, 1989, this court sentenced the defendant to a term of five to 10 years in state prison. He thereafter appealed to the Superior Court, which reversed the judgment of sentence and remanded the case back to this court for a new trial. Following the filing of cross-appeals by both the Commonwealth and the defendant, the Supreme Court of Pennsylvania arrested judgment and dismissed all of the charges on the basis that there was no evidence in the trial record to show that the defendant was physically in possession of the rifle on the day of the shooting.

Neither the defendant nor any member of his family requested the return of the rifle at any time during Mr. Bybel’s lifetime. He died intestate on March 3, 1996. In fact, no such request was made until September 12,2003, when the decedent’s son, Nicholas Bybel Sr. M.D. (Dr. Bybel), filed a petition for return of tangible evidence which is the subject of these proceedings. A hearing was held on the petition on November 21, 2003, at which time Dr. Bybel stipulated and agreed that the rifle marked exhibit 25 at trial was the weapon that was used to kill David L. Renninger, as follows:

“Ms. Fudeman:... there are certain matters that I think might be before the court that we are prepared to stipulate. And one is that this — the property we have asked to have returned to Dr. Bybel was in fact the weapon involved in the killing in this case.

“I don’t think that there is any question about that.” N.T., hearing, November 21, 2003, p. 5.

The Commonwealth objected to Dr. Bybel’s request on the grounds that the rifle constituted derivative contraband and, therefore, should not be released to him pursuant to Pa.R.Crim.P. 588, which reads in pertinent part as follows:

“(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.

“(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited. ”

Inasmuch as an estate had never been opened for the defendant, this court did not rule upon the petition immediately but instead continued the matter in order to allow the parties the opportunity to determine who was the rightful owner of the rifle. On January 12,2004, upon petition filed by Dr. Bybel, the orphans’ court entered an order authorizing him to take possession of the rifle, but only in the event that this court were to grant his petition for return of tangible evidence.

Therefore, on February 18, 2004, we held a second hearing on this matter, at which time we heard oral argument from counsel for the parties, along with a moving statement from the victim’s wife, Sharon L. Renninger, who spoke on behalf of her now adult daughters and herself in opposition to the granting of the petition. She said, “I’m not sure I understand the reasons why the family would want the gun returned. That’s beyond my capacity to understand. ” N.T., hearing, February 18,2004, p. 12. She also said, “This murder weapon rewrote all of our lives — it is my feeling that the murder weapon should be destroyed as I felt that it had been long ago. ” N.T., hearing, February 18, 2004, p. 13.

At the conclusion of the hearing, we gave the Commonwealth 10 days to submit a response to Dr. Bybel’s memorandum of law which was filed only the day before this hearing. The Commonwealth’s response was in the form of a petition and rule to show cause why the Commonwealth’s petition for forfeiture of the rifle should not be granted, along with a supporting argument brief. Following our issuance of the rule upon Dr. Bybel, he filed an answer together with his own brief. Ftaving reviewed all of those documents and determined that there were no additional issues of fact which required any further hearings, we now file this opinion in disposition of both Dr. Bybel’s and the Commonwealth’s petitions.

In Commonwealth v. Younge, 446 Pa. Super. 541, 667 A.2d 739 (1995), and Commonwealth v. Pomerantz, 393 Pa. Super. 186, 573 A.2d 1149 (1989), the Superior Court of Pennsylvania has stated that a petition for return of property must be granted where the court is satisfied by a preponderance of the evidence that: (1) the petitioner is entitled to lawful possession of the property, and (2) that the property does not constitute any form of contraband.

In this case, it is clear that Dr. Bybel is lawfully entitled to possession of the rifle, by virtue of the January 12, 2004 order of the orphans’ court. However, that leaves us with the question of whether the rifle constitutes derivative contraband, which has been defined by Commonwealth v. Crosby, 390 Pa. Super. 140, 568 A.2d 233 (1990), and Commonwealth v. Fassnacht, 246 Pa. Super. 42, 369 A. 2d 800 (1977), as property which is not illegal in and of itself but which is used in the perpetration of an unlawful act.

Dr. Bybel contends that the rifle does not constitute derivative contraband because the Supreme Court of Pennsylvania specifically determined that there was an insufficient nexus between the rifle and the defendant, Peter A. Bybel, at the time of the killing and, consequently, dismissed the charges. In opposing the petition, the Commonwealth relies upon Petition of Maglisco, 341 Pa. Super. 525, 491 A.2d 1381 (1985). There, the Superior Court considered whether a pistol which had been used by appellant Maglisco to commit the crime and other rifles owned by appellant Moore were derivative contraband. In finding that the pistol used by appellant Maglisco was derivative contraband even though the charges against Maglisco were ultimately dropped, but that the rifles owned by appellant Moore which were not used to commit the crime were not contraband, the Superior Court noted at pages 530-31, 491 A.2d page 1384, of its opinion that:

“it is the thing itself which is the offender, not its owner

“In the instant case, the pistol was uncontrovertibly fired by appellant Maglisco with a bullet lodging in the leg of her husband. We do not hesitate to conclude that, by a preponderance of the evidence, a crime was committed with the pistol and it is, therefore, derivative contraband.

“This conclusion cannot be reached with regard to the rifles. There was no evidence presented at the forfeiture hearing that the rifles had been used in the commission of any crime”

From the above, it is clear that it is the rifle, and not Mr. Bybel or Dr. Bybel, the present owner of it, which is treated as the “offender” for purposes of forfeiture. Accordingly, whether property constitutes derivative contraband depends not upon who is seeking to recover it but whether it was used in the commission of a crime. And, the fact that Dr. Bybel had nothing to do with the shooting and, therefore, is an “innocent third party” as alleged in his petition, is of no moment whatsoever.

Although the Supreme Court said in the underlying case “that there was no evidence in the trial record to show that the defendant, Peter A. Bybel, was physically in possession of the rifle on the day of the shooting,” the evidence in the trial record is undisputed, as stipulated to by Dr. Bybel, in these proceedings that the rifle was in fact the weapon used to shoot and kill David L. Ren-ninger. Accordingly, we conclude that, because a crime was committed with the rifle, it constitutes derivative contraband and, therefore, cannot be returned to Dr. Bybel.

We also disagree with Dr. Bybel’s contention that the Commonwealth has waived its right to seek forfeiture of the rifle because it did not file its forfeiture petition in a timely manner. Our appellate courts have rejected that very argument on the basis that there is no specific time requirement for the Commonwealth to do so. See Kulbitsky Appeal, 112 Pa. Commw. 477, 536 A.2d 458 (1988).

Wherefore, we enter the following attached order.

ORDER

And now, April 15, 2004, upon consideration and after hearings held, it is hereby ordered that:

(1) The petition for return of tangible evidence filed by Nicholas Bybel Sr., is denied; and

(2) The petition for forfeiture filed by the Commonwealth of Pennsylvania is granted. Accordingly, the .22 caliber bolt action “Ranger” rifle, previously marked and admitted into evidence at trial as exhibit 25, is hereby declared forfeited to the Commonwealth, for appropriate further disposition.

      . Title 18, 18 Pa.C.S. §2502(c) (Supp. 2004).

      . Title 18, 18 Pa.C.S. §2702(a)(1) (Supp. 2004).

      . Title 18, 18 Pa.C.S. §2702(a)(4) (Supp. 2004).

      . All italicized or bold faced language has been added for emphasis only.

      . At the conclusion of the February 18, 2004 hearing, this court stated on the record that it was asking the same question, but had not gotten any response:
      “The Court: . . . what is the reason for wanting this gun returned? What is the reason? And I guess I asked it before. And I’m asking it now. And I’m not getting any response.” N.T., hearing, February 18, 2004, p. 13.

      . At page 530, 491 A.2d page 1383, of its opinion, the Maglisco court states that:
      “In the overwhelming number of cases of this category — which revolve upon the question of the interests of innocent third parties who stand to be penalized, in effect, by the impending forfeitures — the federal courts, including the United States Supreme Court, have upheld the government’s right to enforce the forfeiture, thereby sacrificing the interests of parties who by no stretch of any definition could be said to have contributed to the offense for which the forfeiture was being exacted.”


author: NANOYIC, J.,

text:
    Commonwealth v. Moyer

      C.P. of Carbon County,
    no. 583 CR 02.

      Jean A. Engler, for the Commonwealth.

      George T. Dyckynsky, for defendant.
    March 29, 2004
   NANOYIC, J.,

The defendant in this case, Francis L. Moyer, has filed a motion to suppress evidence, claiming police officers illegally entered his home and arrested him. He also asks that the charges against him for resisting arrest and persistent disorderly conduct arising from this incident be dismissed.

FACTUAL BACKGROUND

On November 3, 2002, at approximately 1 a.m., the police received a report of a domestic dispute occurring on the street outside defendant’s home at 241 Carbon Street in Lehighton, Carbon County, Pennsylvania. Officer Scott Prevosnyak and Corporal Neal Ebbert of the Lehighton Borough Police Department arrived at the scene within approximately two minutes of the call. Upon their arrival, a neighbor who had witnessed the incident told the officers that “they” were “going at it again,” presumably referring to the defendant and his girlfriend, Sally Hartman, and that the two had been outside yelling and screaming at one another and that defendant had smashed the window of a vehicle with rain spouting while Hartman was inside. Neither the vehicle nor Hartman were present when the police arrived, however, the police did observe glass on the roadway and eight feet of rain spouting lying on the steps and sidewalk in front of defendant’s home. The neighbor did not know where Hartman had gone but stated that defendant was inside his home. (N.T., pp. 9, 25.)

Prior to this incident, the police were aware that the relationship between defendant and Hartman was volatile and often violent. Numerous protection from abuse orders had been obtained by each against the other. (N.T., pp. 22-23.) Officer Prevosnyak testified that he himself had investigated at least eight or nine prior instances involving domestic violence and property disputes between the two. (N.T., p. 12.) When he responded to one call 10 to 12 months earlier, he arrived to find Hartman with a broken nose. The police were also aware that the two had three young children who resided in the home at 241 Carbon Street.

With the intent of determining the whereabouts and condition of Hartman, the police knocked on the front door of defendant’s home and were met there by defendant. When questioned as to what had happened, defendant denied that anything had happened. When asked to see Hartman in order to check on her welfare, defendant denied that there had been a problem and stated that the police were not needed. When asked for permission to enter the home, defendant began to close the door. As he did so, Corporal Ebbert placed his foot inside the doorway and his arm against the upper half of the door. Defendant pushed from the opposite direction. While defendant pushed to close the door and Corporal Ebbert struggled to keep the door open, the defendant suddenly released the door. When he did so, both Corporal Ebbert and Officer Prevosnyak, who was pushing Corporal Ebbert from behind, plunged headlong into the home where they stumbled into the defendant; all three collided against the wall on the opposite side of the front room. (N.T., p. 63.) There the defendant began swinging and flailing wildly at both officers. The officers attempted without success to calm down and control the defendant and ordered him to cease and desist. Ultimately, defendant was tackled to the ground where he was subdued and handcuffed. Once defendant was under control, Officer Prevosnyak and Corporal Ebbert searched the residence. Hartman was not present; the children were asleep in bed.

Defendant, who by this time was under arrest, was taken outside by the police. While outside, defendant made loud, vocal noises and continued to struggle with Corporal Ebbert. Corporal Ebbert repeatedly ordered defendant to quiet down, requests ignored by defendant. Not until Corporal Ebbert placed defendant up against the police cruiser did defendant calm down. At this point, it was approximately 1:15 a.m.

Later that evening, Hartman returned a call from the police and advised she did not want to press charges. Defendant has been charged with resisting arrest and persistent disorderly conduct.

DISCUSSION

In this case, we must decide whether police are authorized to force their way into the home of a person suspected of abusing his paramour, absent a warrant, when the victim of the abuse is believed to be inside and in danger of further abuse. We must further determine whether defendant’s prosecution for resisting arrest and persistent disorderly conduct is dependent upon the legality of the police’s entry into defendant’s home where, but for that entry, defendant would not have engaged in the conduct with which he is charged.

Validity of Search

Defendant challenges the legality of the police entry and search of his home pursuant to the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. In examining the police’s authority to enter and search defendant’s home, we begin with the premise that a search, without consent, requires probable cause and that warrantless searches are presumed to be unreasonable. Commonwealth v. Walker, 836 A.2d 978, 981 (Pa. Super. 2003). In this case, defendant did not consent to the warrantless entry into his home.

The protections of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution are particularly demanding when an exception to the warrant requirement is claimed with respect to a suspect’s home, the primary refuge from government intrusion. Commonwealth v. Richter, 791 A.2d 1181, 1184 (Pa. Super. 2002). One well-recognized exception, and that relied upon by the Commonwealth in this case, is that of exigent circumstances. Commonwealth v. Griffin, 785 A.2d 501, 505 (Pa. Super. 2001).

In examining the exigent circumstances exception in a case involving a reported domestic dispute, the Superior Court, in an en banc decision, wrote:

“The exigent circumstances exception to the warrant requirement recognizes that some situations present a compelling need for instant arrest, and that delay to seek a warrant will endanger life, limb or overriding law enforcement interests. In these cases, our strong preference for use of a warrant must give way to an urgent need for immediate action.

“In determining whether exigent circumstances exist, a number of factors are to be considered. Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is a strong reason to believe that the suspect is within the premises to be searched, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.

“Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.” Commonwealth v. Richter, supra, 791 A.2d at 1184-85. (quotations and citations omitted)

In dissent, Judge Johnson noted that “[a]ll decisions made pursuant to the exigent circumstances exception [to the warrant requirement] must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances.” Id. at 1188. (quotations and citations omitted) “Ultimately, the exigent circumstances exception is a balancing of an individual’s right to be free from unreasonable intrusions against the needs of law enforcement in investigating a crime quickly, and preventing the disappearance of evidence necessary to convict criminals.” Commonwealth v. Roland, 535 Pa. 595, 608, 637 A.2d 269, 275 (1994) (Montemuro, J., dissenting).

“Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all war-rantless home entries.” Commonwealth v. Santiago, 736 A.2d 624, 631 (Pa. Super. 1999), appeal denied, 561 Pa. 665, 749 A.2d 470 (2000). The “police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). This is particularly true when reviewing a warrantless intrusion into an individual’s home where the expectation of privacy protected under the Fourth Amendment has been held to be greatest. Commonwealth v. Gutierrez, 750 A.2d 906, 909 (Pa. Super. 2000).

“The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their . . . houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘ [a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U.S. 505, 511, 5 L.Ed.2d 734, 81 S.Ct. 679 [683], 97 A.L.R.2d 1277. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639, 653 (1980).

Indeed, “it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home.” Jones v. U.S., 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958).

In Commonwealth v. Wright, our Supreme Court stated:

“It is widely recognized that situations involving the potential for imminent physical harm in the domestic context implicate exigencies that may justify limited police intrusion into a dwelling in order to remove an item of potential danger.” 560 Pa. 34, 40, 742 A.2d 661, 664 (1999).

The volatility of domestic disputes and the threat of imminent violence may, under certain circumstances, justify a warrantless search of a residence to ensure the safety and protection of persons suspected of being abused. Whether such is, in fact, the case depends on the nature, extent and source of the police’s knowledge, the existence of probable cause to believe a victim is in danger, and the severity and immediacy of the harm reasonably suspected. Critical to a determination of exigent circumstances is whether the delay in obtaining a warrant would risk the infliction of serious bodily injury.

We find, and the Commonwealth concedes, that while the police at the time they entered the defendant’s residence had probable cause to believe a crime had been committed in front of defendant’s home and that defendant committed the crime, they did not have grounds to arrest defendant. (N.T., pp. 47, 93-94.) The authority to arrest conferred by section 2711 of the Crimes Code (probable cause arrests in domestic violence cases) did not exist because there was no evidence of recent physical injury to Hartman. Nor generally does the power to arrest exist for a misdemeanor offense committed outside of the presence of the police. Commonwealth v. Smith, 380 Pa. Super. 484, 489, 552 A.2d 292, 294 (1988), appeal denied, 524 Pa. 596, 568 A.2d 1247 (1989); Commonwealth v. Streater, 422 Pa. Super. 502, 619 A.2d 1070 (1993) (en banc), appeal discontinued by 534 Pa. 653, 627 A.2d 731 (1993).

The question then becomes, is the presence of probable cause that a crime of domestic violence has been committed, outside the presence of the police and outdoors, in front of the alleged assailant’s home, sufficient in and of itself to justify a warrantless search of the assailant’s home for the alleged victim, when the police do not know where the victim is, do not know whether the victim has been injured, and do not know whether the victim is in continued danger. The neighbor’s statement to the police that she did not know where Hartman was meant either that she did not know whether or not Hartman was inside the home, or that she knew that Hartman was not in the home and had left the scene but did not know where Hartman had gone.

At best, the information upon which the Commonwealth relies to validate its search of defendant’s home is uncertain and inconclusive. Perhaps Hartman was inside the home, perhaps she wasn’t. While sufficient to support the possibility that Hartman may have been in the home, this level of suspicion is not sufficient to form an objective, reasonable belief at the time police entered defendant’s home that Hartman was probably in the home.

Constitutionally, probable cause to search requires a fair probability that contraband or the items searched for will be found in a particular place. Commonwealth v. Torres, 564 Pa. 86, 96, 764 A.2d 532, 537 (2001). “Probable cause [to arrest] exists when the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.... Mere suspicion is not a substitute for probable cause.” In the Interest of O.A., 552 Pa. 666, 676, 717 A.2d 490, 495 (1998); see also, Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed.2d 1879 (1949) (probable cause is a “practical non-technical standard”). “It is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable cause for a warrantless arrest.” Commonwealth v. Quiles, 422 Pa. Super. 153, 167, 619 A.2d 291, 298 (1993) (enbanc). (emphasis in original) In this case, at the time the police entered defendant’s home, they did not possess probable cause to believe that a crime had been, was being or would be committed inside the home or that Hartman was in imminent danger of further abuse or in urgent need of medical attention.

This absence of probable cause is fatal to the Commonwealth’s claim that exigent circumstances justified warrantless entry into defendant’s home. “Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment.” Commonwealth v. Roland, 535 Pa. at 599, 637 A.2d at 270. Exigent circumstances alone, unaccompanied by probable cause, cannot justify the search. Nor can the good faith belief of the police that Hartman might have been in the home and might be in danger. See Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (rejecting, on state constitutional grounds, good faith exception to the exclusionary rule). At the same time, the absence of probable cause to believe Hartman was inside defendant’s home when the police entered necessarily and critically undermines the Commonwealth’s assertion of exigent circumstances.

Resisting Arrest

Having determined that the officers were not justified in entering defendant’s home by force, the next question to be addressed is whether a defendant can be convicted of resisting arrest for physically opposing an illegal search of his home. The elements of resisting arrest are set forth in section 5104 of the Crimes Code:

“A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.” 18 Pa.C.S. §5104.

In Commonwealth v. Biagini, 540 Pa. 22, 655 A.2d 492 (1995), the court found in the context of a police officer’s investigation of a public disturbance that defendant’s physical resistance to the officer while inside defendant’s home could not sustain a charge of resisting arrest since the arrest, being unsupported by probable cause, was illegal. Id. at 32, 40, 655 A.2d at 497, 501. In Biagini, the only element under consideration was the lawfulness of the arrest. With respect to this element, the court held that a “lawful” arrest, in contrast to an “unlawful” one, is an essential element of the offense of resisting arrest. Id. at 38, 655 A.2d at 500.

The same reasoning dictates that when the search of a residence is without probable cause, even though undertaken in good faith, police who are not lawfully present in a suspect’s home are not lawfully discharging their duties at the time the homeowner physically resists an illegal and forcible entry into his home. Under such circumstances, the arrest is illegal and will not support the charge of resisting arrest. We hasten to add that even under such circumstances, if the homeowner, by the nature or extent of his resistance, “attempts to cause or intentionally or knowingly causes bodily injury to a police officer ... in the performance of duty” such conduct will support a charge of aggravated assault pursuant to 18 Pa.C.S. §2702(a)(3). Commonwealth v. Biagini, 540 Pa. at 34, 655 A.2d at 498. (emphasis in original) “[Tjhere does not exist in Pennsylvania a right to resist arrest, [in] any circumstances.” Id. at 36, 655 A.2d at 499.

Disorderly Conduct

The defendants in Biagini argued, as does the defendant here, that it was the unlawful actions of the police which provoked their responses and that, since the initial encounter was an “unlawful arrest,” all of the criminal charges which arose as a consequence of that arrest should be dismissed. The Supreme Court rejected this argument.

It is not the law of this Commonwealth that we “focus upon the initial actions of the police officers as a catalyst for all that flowed therefrom,” and, if such actions were improper, that we suppress all evidence which was subsequently obtained, or exempt from criminal liability all conduct of a defendant which follows. To do so would impose upon the police responsibility for a defendant’s own conduct. Commonwealth v. Biagini, supra (only where the legality of the arrest is an element of the offense charged will an unlawful arrest act to bar the prosecution of such offense). Therefore, our conclusion that the officers’ entry into defendant’s home was improper is not a defense to criminal charges arising from defendant’s conduct which occurred after such entry and for which the prima facie elements of the crimes charged have been made out. See also, Commonwealth v. Britt, 456 Pa. Super. 633, 691 A.2d 494 (1997) (reversing trial court’s order suppressing all evidence related to an incident in which defendant was prosecuted for aggravated assault and reckless endangerment when, in a violent and reckless manner, after being unlawfully detained, he fled from police officers who had properly identified themselves, injuring one officer), appeal denied, 549 Pa. 695, 700 A.2d 437 (1997).

The charge of persistent disorderly conduct at issue here provides:

“(a) Offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

“(1) engages in fighting or threatening, or in violent or tumultuous behavior;.. .

“(b) Grading. — An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience, or if he persists in disorderly conduct after reasonable warning or request to desist. Otherwise disorderly conduct is a summary offense.” 18 Pa.C.S. §5503(a)(l) and (b).

It is apparent from this definition that a lawful search is not an element of this offense. Equally apparent is that “being both vulgar and loud to a police officer, while in a private residence, does not constitute disorderly conduct.” Commonwealth v. Biagini, 540 Pa. at 27-28, 655 A.2d at 495. However, it is defendant’s conduct while outside his home which supports this charge.

There is no dispute that defendant fought with the police and, by Officer Prevosnyak’s account, continued to struggle loudly and violently while being taken to the police car, to the point that Corporal Ebbert placed defendant on top of the police cruiser to again subdue him. Officer Prevosnyak testified that the defendant was repeatedly told to calm down and quiet down, both inside and outside the house. Defendant’s behavior once outside the house clearly created a public annoyance, inconvenience or alarm, or recklessly created a risk thereof; it occurred in a residential neighborhood after 1 a.m. Therefore, a prima facie showing of each element of persistent disorderly conduct has been made out.

CONCLUSION

In accordance with the foregoing, the charge of resisting arrest, Count I of the information, will be dismissed. The balance of defendant’s motions to suppress and to quash the information will be denied.

ORDER

And now, March 29, 2004, upon consideration of defendant’s motions to suppress and to quash information, and after hearing thereon, it is hereby ordered and decreed that Count I of the information (resisting arrest) be and is hereby quashed and said charge, that of resisting arrest, be and is hereby dismissed.

In all other respects, defendant’s motion is denied.

      . 18 Pa.C.S. §5104.

      . 18 Pa.C.S. §5503(a)(1).

      . To be precise, the home at this location is a double home with one side being numbered as 241 Carbon Street and the other 243 Carbon Street, both sides being owned by defendant. When the police knocked on the door at 241 Carbon Street, defendant appeared at the door of 243 Carbon Street, the other half of the home, and told the officers they were at the wrong home. A common porch fronts both homes. The officers walked across this porch and met defendant at the door of 243 Carbon Street.

      . Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution protect against unreasonable searches and seizures. Probable cause is the standard by which reasonableness is measured under these constitutional mandates. Commonwealth v. Petroll, 696 A.2d 817, 825 n.5 (Pa. Super. 1997), aff’d, 558 Pa. 564, 738 A.2d 993 (1999). The determination of probable cause is based upon the “totality of the circumstances” test set forth by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by the Pennsylvania Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

      . To argue in the context of police conduct which exceeds lawful authority that defendant’s resistance was directed at preventing the police from searching his home, rather than preventing his arrest, is without merit. In essence, such argument asserts that the resistance for which the Defendant is being charged is that against the officer’s “discharging any other duty" element of resisting arrest, rather than that of the officer’s “effecting a lawful arrest.” This same position was taken by the dissent in Biagini, and rejected by the majority. In the dissent’s view, the majority ignored the element of preventing the discharge of any other duty as an alternate element of resisting arrest and improperly concentrated on the element of the lawfulness of the arrest.Id. at 39-40, 655 A.2d at 501. (emphasis in original) In the dissent’s view, even though the arrest was illegal, because the police were acting within the scope of their employment (i.e., the investigation of a public disturbance), the defendant’s resistance satisfied this element of the offense. The reasoning of the majority prohibits unlawful police conduct from simultaneously serving as the basis of the “discharge of any other duty” element of resisting arrest.

      . In this case, as noted by the Commonwealth, while there appears to be sufficient evidence to justify a charge of aggravated assault on the police officers during their struggle with defendant, the police have not filed a charge for aggravated assault..The court in Biagini also noted the distinction between the legality of the arrest and the manner of executing the arrest. When the police engage in the use of excessive/deadly force in making an arrest, the right of self-defense allows an individual to protect himself in this extreme situation. Commonwealth v. Biagini, 540 Pa. 22, 36, 655 A.2d 492, 499 (1995).