author: MINORA, J.,

text:
    Alpensjo v. Sandvik Materials Technology, Inc.

      Paul Jennings, Kevin P Foley and Michael J. Foley, for plaintiff.

      Michael J. Ossip, Courtney Wirth Griffin and Marianne J. Gilmartin for defendants.
    February 15, 2013
   MINORA, J.,

Swedish bom plaintiff, Johan Alpensjo (hereinafter “Alpensjo”) moves for partial summary judgment against defendants, Sandvik Materials Technology, Inc. (hereinafter “Sandvik”) asserting, in support of his motion, the theory of collateral estoppel based upon a final judgment rendered by a worker’s compensation judge. For reasons hereinafter articulated, we sustain plaintiff’s motion.

FACTUAL BACKGROUND

This case arises out of a second amended complaint by Alpensjo alleging Sandvik committed wrongful termination of employment as a violation of public policy in the context of a worker’s compensation claim. It also alleges defamation.

Basic facts in this case are not in significant dispute. Plaintiff is a Swedish national who legally entered into the United States via an E2 work visa. Plaintiff’s work visa was facilitated by defendant, Sandvik, his employer, an American subsidiary of Sandvik, Inc. a Swedish company. In 2007, Sandvik provided Alpensjo the requisite employment opportunity and assisted him with the paperwork necessary to secure the E2 work visa. (See transcript of record of John Alpensjo Dep. 6-8, Feb. 15, 2010).

According to Alpensjo’s deposition (Alpensjo Dep. 11:14-23) plaintiff was promoted in 2008 by LisaAntignoli as a result of his proficient management of Sandvik’s bigger global projects.

At Alpensjo Dep. 13:4-22, plaintiff’s supervisor, Lisa Antignoli, wrote an email to the president of Sandvik Materials Technology and others indicating that with regard to Alpensjo she was,

“...also positioning him (Alpensjo) into the high achiever and high potential category within my department as a potential future department manager.”

At Alpensjo Dep. 14:9-25, Lisa Antignoli also wrote a May 21, 2008 email at 4:06 p.m. directed again to the president and others regarding Alpensjo wherein Ms. Antignoli stated,

“...I am proposing to promote a solid member of my department, John Alpensjo...He has come up to the top in my department and exemplified a high level of leadership, initiative and ability to collaborate on a global perspective. I am also positioning him into achiever and high potential category within my department as a potential future department manager. With Bill Coleman gone, John easily steps into this management role.”

Other correspondence indicates that HR manager, Brian Spencer, concurs with Lisa Antignoli’s assessment of Alpensjo’s proven abilities.

On May 22, 2008, president of Sandvik, Peter Frosini, approved a salary increase for Alpensjo. From May22,2008 until the date of an automobile accident on December 11, 2008 that left Alpensjo impaired and unable to work, there is no documentary or testimonial evidence suggesting that Sandvik was unhappy with Alpensjo as their employee. (See Alpensjo Dep. 26:2-6, 27:20-28:25).

While on a work related automobile trip to Connecticut on December 11, 2008, Alpensjo was involved in an automobile accident wherein he sustained personal injury to his right eye, neck and upper back. (See Alpensjo Dep. 29:8-25). The immediate result of the accident left Alpensjo with nausea, light/photo sensitivity, blurred vision, double vision and distorted vision. (See Alpensjo Dep. 30). In addition, Alpensjo also sustained significant headaches.

These conditions left Alpensjo unable to work. Being right eye dominant, his vision issues also left Alpensjo impaired. Sandvik referred Alpensjo to northeast occupational medicine (hereinafter “NEOMED”) and also to Bobbi O’Donnell to coordinate treatment. Alpensjo was told that he must use company doctors for diagnosis and treatment. (See Alpensjo Dep. 42).

Alpensjo attempted a part-time return to work in late January of 2009 at four hours per day. Due to Alpensjo’s eye problems, morning adjustment to daylight was difficult. This caused him to be tardy at traditional work arrival times. He was also told to try to schedule all of his medical needs outside of his four hour window of work.

By the middle of February 2009, Alpensjo was trying to increase his work day to six hours per day. The transition back to work was difficult, and his vision and light problems impaired his ability to read computer screens. Sandvik management was also pressuring Alpensjo to accelerate his return to work. (See Alpensjo Dep. 66).

A January 15, 2009 eye exam at northeast eye revealed continued double vision in Alpensjo’s right eye as well as light sensitivity.

Alpensjo candidly admits at Alpensjo Dep. 71 that after the accident, despite an attempt to work four hours per day, his pre-accident productivity was reduced and he was really only performing two hours of real work in the four hour period.

On March 3, 2009, Alpensjo arrived at Sandvik and was told that he was to have an urgent meeting with Lisa Antignoli and Brian Spencer. (See Alpensjo Dep. 99:14-21). At that meeting, Alpensjo’s employment with Sandvik was terminated. Alpensjo was advised that he had thirty days to leave the countiy. (See Alpensjo Dep. 108:20-25). Alpensjo’s visa expiration date was May 21, 2009.

At plaintiff’s supplemental brief Exhibit 1, a December 16, 2008 letter from Sentry Insurance to Alpensjo shows a claim was made under the Worker’s Compensation Act for a date of loss dated December 11, 2008. The same document at Exhibit 2 shows worker’s compensation first report of injury or illness dated December 15, 2008 as the date the administration was notified.

Although Alpensjo’s E2 visa had expired on May 21, 2009 and Alpensjo had returned to Sweden, a defendant independent medical examination (hereinafter “IME”) was arranged by Sandvik with Dr. Vardie in Philadelphia, Pennsylvania for June 4, 2009. A defense physical examination was also arranged by Sandvik with a Dr. Mauthe for June 8, 2009. Defendant was aware of Alpensjo’s absence from the United States since they had terminated his employment and notified Swedish and United States authorities of his E2 work visa expiring.

Whether this scheduling of Alpensjo’s physical examinations for his worker’s compensation claim was merely clerical error and oversight or Sandvik’s scheme to deny Alpensjo his benefits may be subject to debate. The facts next referenced, however, are not debatable, and are facts that have circumstantial impact.

In the Brian Spencer deposition (transcript of record of Brian Spencer Dep. 158:2-25, Mr. Spencer was asked whether he had written letters to the Swedish Embassy, and the United States Citizenship and Immigration Service in March and April of2009 and he replied, “That is correct.” (See Spencer Dep. 158:9).

Mr. Spencer acknowledged in his deposition that the letters were for two purposes: first, to advise recipients that Sandvik no longer employed Alpensjo, and second, to advise the recipients that due to Alpensjo’s loss of employment, he was no longer eligible to remain in the country under the terms of his visa.

At Spencer Dep. 160, Mr. Spencer quotes his letters, “To support your efforts to repatriate him (Alpensjo). See generally Spencer Dep. 155:167).

Another telling piece of evidence is that Sandvik, a Swedish company subsidiary, never made efforts to reschedule Alpensjo’s IME’s for examination in Sweden by company doctors. This was something well within their capability since defendant is an American subsidiary of a Swedish company.

Yet another item of circumstantial evidence is that on June 16, 2009, Sandvik filed a petition for suspension of worker’s compensation benefits which alleged that Alpensjo had voluntarily removed himself from the work force by relocating to Sweden. Thus making the nature of plaintiff’s removal from the work force a central issue in the worker’s compensation case.

On September 7, 2010, Worker’s Compensation Judge Alan Harris rendered a decision on our plaintiff’s worker’s compensation claim. That decision, which is attached to plaintiff’s motion for partial summary judgment, forms the basis for plaintiff’s argument in support of his motion for partial summary judgment. Plaintiff is alleging that Judge Harris’ decision should act as collateral estoppel on specifically enunciated findings of fact and conclusions of law per the opinion of Judge Harris.

Sandvik opposes Alpensjo’s position and argument. Several admissions in their answer to plaintiff’s motion make their position less persuasive. At response number two (2), Sandvik candidly admits that the opinion of Judge Harris dismissed Sandvik’s petition to suspend Alpensjo’s benefits. They also admit that Alpensjo’s E2 work visa, for which their employment qualified Alpensjo, expired on May 21, 2009. Sandvik also admits in their answer to Alpensjo’s motion at paragraphs numbered two (2) and three (3) that plaintiff’s employment was terminated by Sandvik on March 3, 2009 “for legitimate non-retaliatory reasons.”

From a legal standpoint, Sandvik denies that Judge Harris’ decision should be deemed to be conclusive or be given preclusive effect. Sandvik claims there was no full and fair opportunity to litigate before Judge Harris and further denies identity of issues both of which would and should preclude the use of the doctrine of collateral estoppel. Sandvik also generally denies plaintiff’s characterization of Judge Harris’ decision and claims that the decision should speak for itself.

Also specifically, Sandvik denies that Judge Harris’ decision “squarely presented and resolved the central factual issue of this case, that being whether Alpensjo received a retaliatory discharge.”

Sandvik denies that plaintiff is entitled to partial summary judgment with respect to paragraphs four (4), five (5), seven (7), eight (8), nine (9), ten (10), eleven (11) and twelve (12) of Worker’s Compensation Judge Harris’ findings of fact because matters discussed in those paragraphs were not actually litigated nor were they essential to judgment or determined by a valid final judgment.

Sandvik admits to the use of discovery in worker’s compensation proceedings but denies that the principle of mutuality of estoppel imposing preclusion against Sandvik and in favor Alpensjo should prevail.

To resolve this dispute, we must compare the elements essential to resolving the worker’s compensation carrier’s attempt to suspend benefits versus the elements needed to complete Aipensjo’s case of retaliatory discharge. If the elements are not sufficiently similar, we need go no further since there would fail to be an identity of issues. If the elements are sufficiently similar, then we must next engage in a collateral estoppel analysis. If the collateral estoppel analysis is successful, then we need to determine whether summary judgment elements have been met.

COMPARISON OF ELEMENTS

Worker’s Compensation

There seems to be little underlying dispute that Aipensjo sustained a work related injury from his motor vehicle accident in Connecticut in December of 2008. The issue for the petition by Sandvik to suspend Aipensjo’s benefits was Aipensjo’s failure to appear for the two defense IME’s. If Aipensjo was fired by Sandvik for valid cause, then Aipensjo was forced to leave the United States due to his own misconduct. Therefore, his visa expiration would be his own fault and the operative cause for his failure to appear for two worker’s compensation IME’s.

Conversely, if Aipensjo were discharged and the reasons for termination were retaliatory in nature due to him exercising his statutory right to file a worker’s compensation claim, under those circumstances, Aipensjo would have been effectively forced to leave the United States due to Sandvik’s improper conduct.

Accordingly, the key issue in the underlying worker’s compensation case is the nature of Alpensjo’s termination by Sandvik. Specifically, our inquiry is whether the firing was for valid cause making missing the IME’s culpable for Alpensjo or whether it was a retaliatory firing, discharge or termination, which forced Alpensjo to leave the United States due to his visa expiring and thus making missing the IME’s excusable.

Wrongful Discharge and Defamation

In order for Alpensjo to make actionable his wrongful discharge claim before our court, he must be able to show that his receipt or pursuit of worker’s compensation benefits must have been a factual cause in Sandvik’s motivation to terminate his employment. Shick v. Shirey, 552 Pa. 590, 594, 716 A.2d 1231, 1232 (1998). Although Pennsylvania is generally considered an “at-will employment” state, public policy exceptions do exist and a discharge for seeking worker’s compensation benefits is such an exception. Shick, supra at 1232.

There has been some confusion as to how to assess factual cause in a wrongful termination or wrongful discharge case, and the issue is how to apply causation. Must the retaliatory discharge be motivated by animus as the sole cause, or need the pursuit or receipt of worker’s compensation be merely a determinative cause as opposed to a sole cause?

In Sheridan v. E.I. DuPont de Nemours and Company, 100 F.3d 1061 (1996), a gender discrimination case, the United States Court of Appeals for the Third Circuit decided a plaintiff need only show that gender discrimination was a determinative cause and not the sole cause.

In Rothrock v. Rothrock Motor Sales, Inc., 584 Pa. 297, 883 A.2d 511, 517 (Pa. Super. 2005), our Supreme Court in a worker’s compensation benefits case stated,

“we hold.. .that a Pennsylvania employer may not seek to have a supervisory employee dissuade a subordinate from seeking worker’s compensation benefits. If an employer does so, the supervisory employee shall have a cause of action for wrongful discharge from employment.”

Applying these comparisons to our case, it appears that the factual issue in Rothrock, a worker’s compensation case, is also at issue in our case. What was the reason and nature for Alpensjo’s discharge? Was it afiring for no cause or valid cause or a retaliatory discharge for seeking his statutory entitlement to worker’s compensation benefits? Thus, not only is the core issue between the worker’s compensation case and our case sufficiently similar, it is virtually identical. We so hold thus, concluding our first level of analysis, that the issues between these two cases are the same.

Collateral Estoppel

In a somewhat similar case involving unemployment benefits, Rue v. K-Mart Corporation, 522 Pa. 13, 19-20, 713 A.2d 82, 86 (1998) our Supreme Court concluded that unemployment compensation hearings did not provide a full and fair opportunity to litigate the issues and thus the court denied issue preclusion or collateral estoppel. The Supreme Court’s findings were based upon unemployment hearings being too informal, not allowing for discovery nor following the rules of evidence. Thus unemployment compensation law, in terms of the facts determined, was found to be too informal in their proceedings to apply issue preclusions or collateral estoppel.

However, Justice Newman did address in Rue two other significant issues herein. First, she did a thorough analysis of the elements needed to apply collateral estoppel. Second, she reiterated that this opinion was limited solely to unemployment compensation cases and that it had no bearing on the body of worker’s compensation law to the contrary. Rue, supra at 21 n.4, 552 Pa. at 23, 713 A.2d at 87.

Knowing now from Rue that worker’s compensation proceedings can be used for issue preclusion, we must now do the four part analysis as Justice Newman directs. In Rue, Justice Newman set out the four prongs needed to satisfy the application of the doctrine of collateral estoppel or issue preclusion. Id. at 17.713 A.2d 84. As for the first prong, the issue decided in a prior action must be identical to the one presented in a later action. In our comparison of the elements of our worker’s compensation claim and the wrongful termination claim we have already made that determination. (See discussion supra pp.9-10).

The second prong is that the prior action resulted in a final judgment on the merits. In the present case, prong two has been met. On September 7, 2010, Worker’s Compensation Judge Alan Harris issued a five page opinion with numerous findings of fact and conclusions of law. As part of the basis for his decision, he relied upon a telephone deposition of Alpensjo dated February 15, 2010 which ran two hundred and fifty-eight (258) pages. Additionally, Judge Harris also had Brian Spencer’s two hundred and twenty-six (226) page deposition taken on February 16,2010. Both were made available to our court by plaintiff’s counsel. After review of this evidence, the hearing transcripts, and Judge Harris’ decision, this court is of the belief that the decision rendered by Worker’s Compensation Judge Harris was a final decision since it was never appealed and the time to appeal has expired. Consequently, prong two of the elements for collateral estoppel has been met.

Prong three is not at issue since the parties at the worker’s compensation level were Johan Alpensjo, our plaintiff, and Sandvik, Inc. who was at the worker’s compensation hearing and Sandvik Materials Technology, Inc. a/k/a/ Sandvik Inc. is our defendant herein. Therefore, prong three is met because the parties at both proceedings are either identical or in privity.

Prong four required that the party against whom collateral estoppel is being asserted had a Ml and fair opportunity to litigate the issue in the prior action. Here Sandvik adamantly says such was not the case. As noted above in Rue, the body of case law concerning the preclusive effects of worker’s compensation proceedings remains good law. Id. at 21 n.4, 552 Pa. at 23, 713 A.2d at 87. Further, since worker’s compensation proceedings have preclusive effect, we need only analyze whether there was a full and fair opportunity to litigate the issue.

As Justice Newman noted in quoting the Restatement of Judgments 2d. at §28, issue preclusion would not be appropriate where:

“A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two [proceedings] or...
[T]he party sought to be precluded did not have an adequate opportunity or incentive to obtain Ml and fair adjudication in the initial action.” (emphasis added).

Our review of the hearing transcripts from the worker’s compensation hearings reveals there was fair opportunity to litigate the issue. Both parties were represented by counsel of their choosing. Both parties had the right to examine and cross-examine witnesses. In addition to testimony, both parties had the right to subpoena evidence, engage in discovery and present documentary evidence. Additionally, the formality of a worker’s compensation hearing and the use of rules of evidence was also present.

Our review of the depositions and the hearing transcripts show an absence of the disqualifications which would prohibit the use of the doctrine of collateral estoppel.

Absent the disqualifications, prong number four has been met and all the elements or prongs necessary to implement the doctrine of collateral estoppel or issue preclusion are met.

Summary Judgment

Our final determination needed to complete our task is to determine whether having decided we have identical factual issues and that the elements or prongs of collateral estoppel or issue preclusion have also been met, whether Alpensjo meets the elements needed to be granted partial summary judgment.

The General Standards for Summary Judgment

The Pennsylvania Rules of Civil Procedure that govern summary judgment instruct in relevant part that the court shall enter judgment whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Under the rules, a motion for summary j udgment is based on an evidentiary record that entitles the moving parly to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to existence of a genuine issue of material fact must be resolved against the moving party. Finally, a court may grant summary judgment only where the right to do so is clear and free from doubt. Pa.R.C.P. 1035.2(1); Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 34, 928 A.2d 186, 195 (2007); Pennsylvania Social Services Union, Local 688 of Service Employees Intern. Unionv. Comm.,_A.3d_, 2012 WL 6217433 (Pa.Ct. Com. PI. Dec. 14, 2012).

It is a violation of the law to terminate an employee for exercising his statutory rights by applying for and/or obtaining worker’s compensation benefits. If such animus was a cause of the employee’s termination, then the plaintiff has established a violation of the law. See Shick and Rothrock and accompanying discussion, supra pp. 10, 12.

Such findings were clearly made in the September 7, 2012 decision of Judge Alan Harris. At finding of fact two (2), Judge Harris notes that on March 4, 2010, he granted Sandvik’s petition for physical examination of Alpensjo for failing to present himself at the IME scheduled before Dr. Robert Mauthe on July 9,2009 after Alpensjo had returned to Sweden. Sandvik was then told by Judge Harris to reset Alpensjo’s IME in Sweden. According to finding of fact three (3), Sandvik never did as Judge Harris directed.

Finding of fact four (4) articulates, using documentary evidence from Sandvik, Sandvik’s repeated efforts at “repatriation” of Alpensj o from here back to Sweden due to his termination of employment no longer permitting an E2 work visa.

Finding of fact five (5) illustrates the nature of Alpensjo’s injuries and how the injuries made his attempts to return to work difficult and unsuccessful, thus making him a viable worker’s compensation claimant. Alpensjo was also found to have left the United States under his sincere belief that he feared he would be arrested if he remained in the United States beyond the expiration of his E2 work visa.

At finding of fact seven (7), Judge Harris determined Alpensj o to be credible, forthright with respect to his testimony, and completely unshaken on cross-examination. The judge therefore accepted Alpensjo’s testimony as fact in its entirety.

At finding of fact eight (8), Judge Harris noted that he also carefully considered the testimony of Brian Spencer and found Mr. Spencer frequently evasive in his testimony. He found Spencer’s allegations that Alpensjo was a problematic employee from the beginning as belied by the fact that Alpensj o was promoted and never told of his shortcomings. He further rejected Spencer’s testimony at finding of fact ten (10).

At finding of fact nine (9), Judge Harris concludes:

“Based upon the credible testimony of Claimant
[Alpensjo] this judge finds as a fact that the Claimant did not leave the United States voluntarily. This Judge finds that the Claimant left at the expiration of his visa because he was fearful that he would be arrested and deported.” (emphasis added).

The judge then concluded with regard to Alpensjo’s injuries that he had sustained a work related injury that left him unable to perform his work duties.

At finding of fact ten (10), the judge found the requisite animus present by, once again, rejecting Mr. Spencer’s testimony that Alpensjo’s termination was a business decision based upon Alpensjo’s poor performance. He concluded that the discharge of Alpensjo was Sandvik’s attempt to “rid the company of an individual who had become a problem due to his work injury.” Judge Harris went on to conclude that following Alpensjo’s work related injury, Sandvik, through Spencer, “embarked on a course of conduct that was calculated to remove the claimant from the company and ultimately from the country.” He cited Spencer’s repeated letters to United States officials stating Spencer’s belief that Alpensjo should be “repatriated.”

At finding of fact eleven (11), Judge Harris opened his paragraph by stating, “The conduct of the Defendant [Sandvik] in this matter towards the Claimant [Alpensjo] has been, in the opinion of this Judge, manipulative and ruthless.” (emphasis added).

Judge Harris further goes on in finding of fact eleven (11) to conclude “It appears to this Judge that the purpose of defendant’s conduct all along was to force the Claimant to leave the United States and go back to Sweden, where the Defendant believed it would have no further liability to the Claimant.”

Based upon all of the above, Judge Harris came to his ultimate finding of fact number twelve (12) wherein he concludes, “This Judge finds as fact that the Claimant did not voluntarily remove himself from the work force by relocating to Sweden.”

Plaintiff also sought collateral estoppel relief regarding conclusions of law three (3) and four (4). To the extent that these conclusions incorporate previous findings of fact, this request, though at least particularly redundant, is granted.

For example, the judge has concluded at finding of fact twelve (12) that Alpensjo did not voluntarily remove himself from the work force by relocating to Sweden. This is a restatement of finding of fact nine (9) wherein the same was stated as twelve but with greater supportive details.

As conclusion of law three (3), the judge repeats facts nine (9) and twelve (12), “it has been found as fact that this Claimant did not leave the United States voluntarily. It has been found as fact that be was terminated by the employer due to his work injury and that the employer then saw to it that he would be forced to leave the United States.”

To the extent that conclusion of law three (3) restates earlier found facts, it is likewise accepted by the court as plaintiff requests despite the redundancy.

Similarly at conclusion of law four (4) the judge restates findings of fact already noted,

“This Judge notes that the Claimant could have continued to legally work in the United States if he had been employed. The fact that he is not employed is a product of his discharge by the Defendant which was predicated on his work injury. The Claimant, was a legal resident of the United States with a Work Visa. He lost his Work Visa because he became unemployed due to his work injury.”

To that extent, they are likewise accepted per plaintiff’s request, though redundant.

Conclusion

These findings of fact by Judge Harris as noted by this court are both critical and central to the conclusion that Alpensjo did not voluntarily remove himself from the United States work force by relocating to Sweden.

These facts meet the four prongs or the four criteria for collateral estoppel. The issues were the same. The worker’s compensation hearings were conducted with sufficient protections and opportunity to be heard by Sandvik. Worker’s compensation proceedings can be used for issue preclusion. The decision by Judge Harris is final. The parties of the worker’s compensation case were identical to those herein and finally Sandvik had a full and fair opportunity to litigate at the worker’s compensation hearing. (See Rue, discussion, supra pp. 10-11).

Accordingly, these factual determinations matter. These facts noted now govern our case. Therefore, plaintiff’s request for partial summary judgment based upon these factual determinations on the basis of collateral estoppel is granted and findings of fact four (4), five (5), seven (7), eight (8), nine (9), ten (10), eleven (11) and twelve (12) and conclusions of the law three (3) and four (4) as decided by Judge Harris are deemed conclusively established between these two parties for purposes of our case as noted in this opinion.

An appropriate order follows.

ORDER

And now, February 15, 2013 plaintiff’s request for partial summary judgment based upon the doctrine of collateral estoppel is granted and findings of fact four (4), five (5), seven (7), eight (8), nine (9), ten (10), eleven (11) and twelve (12) and conclusions of the law three (3) and four (4) are deemed conclusively established between these two parties for purposes of our case in this subsequent action in accordance with and for the reasons noted in the opinion.

      . Telephonic deposition of Johan Alpensjo datedFebruary 15,2010 for worker’s compensation claim of Johan Alpensjo. B.C. No. 3443054.

      . Spencer dep. Feb. 16,2010.

      . Defamation claim elements are not at issue under the motion for partial summary judgment.


source: Caselaw Access Project

author: MOTTO, J.,

license: Public Domain

text:
    Commonwealth v. Dawson.

      Thomas Minnet, for plaintiff.

      John Bongivengo, for defendant.
    February 1, 2013
   MOTTO, J.,

Before the court for disposition is the defendant’s motion for suppression of evidence. The defendant, Dajuan Marshawn Dawson, has been charged with criminal homicide, aggravated assault, firearms not to be carried, simple assault, and reckless endangering. The defendant contends that evidence which the commonwealth seeks to use against him was seized in violation of his constitutional rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article 1, §8 of the Pennsylvania Constitution. The defendant argues that the search warrant executed by the New Castle Police Department was invalid because it failed on its face to state with particularity the specific apartment within the residence to be searched, and that no exigent circumstances existed to alleviate the need for a valid warrant that properly identified the correct apartment that defendant occupied, which was in fact the subject of the search and seizure of evidence. The commonwealth opposes the instant motion, contending that search warrant was sufficient to authorize the search of defendant’s apartment, even though it did not specifically identify which apartment within the residential structure was to be the subject of the search. The warrant identified the premises as “302 Boyles Avenue...a white duplex.”

On September 13, 2011, New Castle Police were dispatched to the area between 1105 and 1109 Pin Oak Drive in reference to a homicide. The victim, Zarmara Stelter, died as a result of a single gunshot wound to the head. Sergeant David Cumo of the New Castle Police Department was the first detective at the scene and interviewed several witnesses. Sergeant Cumo was advised that a fight had broken out between two females in front of 1107 Pin Oak Drive. The witnesses stated that the victim was attempting to break up the fight when he was shot. The witnesses claimed to have heard only one gunshot. A single Speer brand 9 millimeter shell casing was found in front of the residence, just west of the front walkway.

On September 14, 2011, Jessica Hooks came to the New Castle Police Station to give a statement in reference to the shooting at 1107 Pin Oak Drive. The interview was conducted by Sergeant Kevin Seelbaugh and Sergeant David Cumo of the New Castle Police Department. Within her statement, Ms. Hooks identified the defendant as the alleged shooter. The statement was included in Sergeant Kevin Seelbaugh’s affidavit of probable cause. Ms. Hooks also told new castle police that the defendant was wearing a blue, zip-up hoodie, a white t-shirt, and dark jeans. Sergeant Cumo presented Ms. Hooks with a photo lineup containing the defendant’s photo. Ms. Hooks positively identified the defendant.

Prior to the aforesaid incident, New Castle Police were provided with information regarding the defendant’s residence from Mr. Jarrod Andrews. On August 11, 2011, Mr. Andrews told New Castle Police that the defendant was residing at 302 Boyles Avenue in New Castle. Mr. Andrews informed New Castle Police that he “rents” the defendant his car, and picks up and drops off the defendant at that residence. Mr. Andrews also indicated that he comes and goes from the back door of the residence.

On September 14 and 15, 2011, New Castle Police received several anonymous tips that the defendant was preparing to flee to Detroit, Michigan. The anonymous information also provided that the defendant was hiding in a white duplex on Boyles Avenue. This information was consistent with the information provided by Mr. Andrews.

Relying upon the information provided by Ms. Hooks, Mr. Andrews, and the anonymous tip, Sergeant Seelbaugh requested a search warrant for the residence at 302 Boyles Avenue. The items specified to be searched for were a 9 millimeter handgun, 9 millimeter ammunition, and a blue zip-up hoodie. District Justice Melissa Amodie issued the search warrant on September 15, 2011 at 9:15 AM.

On November 17, 2011, a hearing on the defendant’s instant motion was held before the court. The commonwealth presented testimony of Sergeant Seelbaugh. Sergeant Seelbaugh testified that due to the nature of the charges, the warrant was considered high risk and the New Castle Police Department’s special response team (hereinafter, “SRT”) was activated in executing the search warrant. Sergeant Seelbaugh also testified that information provided by several individuals, as well was photographs of the defendant on Facebook, suggested that the defendant was living inside of a residence with a sharply tilted roof that looked like a living room. Based on this information, Sergeant Seelbaugh indicated that the SRT believed that the defendant was on the second floor of 302 Boyles Avenue.

Sergeant Seelbaugh testified that the SRT utilized a fire escape in the back of the residence to execute the search warrant. The SRT planned to make entry into the residence from the highest level and search down. Sergeant Seelbaugh explained that this method was safer and tactically sound as opposed to attempting to ascend a set of stairs into possible gunfire. The SRT set a perimeter around the building and then used the fire escape to make entiy into what turned out to be a third floor apartment. Sergeant Seelbaugh indicated that the SRT made contact with the occupant of the third floor apartment, whom they quickly realized was not the defendant.

Sergeant Seelbaugh explained that from a tactical standpoint, the SRT had lost the element of surprise. Sergeant Seelbaugh stated that he did not want to risk taking the time to go back for another search warrant, and felt that exigent circumstances existed to allow the team to continue searching for the defendant. The SRT found mail within the defendant’s mailbox that verified that the defendant lived on the first floor. The SRT knocked and announced their presence, and made entry into the first floor apartment.

Sergeant Seelbaugh testified that nobody was in the apartment of the time. Within the apartment, the SRT located and seized a Titan 25 semiautomatic pistol, a Ruger 22 caliber pistol, a twelve gauge shotgun, a black Oakley zip-up hoodie, 7.62 by 39 ammunition, 9 millimeter ammunition, 40 caliber ammunition, several documents with the defendant’s name on them, photographs of the defendant, documents with the name Shankequa McKnight on them, and a pair of blue Nike jeans which were located in the trash. During the course the SRT’s search, Ms. Shankequa McKnight arrived at the residence. Ms. McKnight was served with a copy of the search warrant and affidavit.

The defendant argues that the search warrant was defective because it failed to state with particularity which apartment at 302 Boyles Avenue was to be searched. Furthermore, the defendant argues that the warrant was executed without probable cause. The commonwealth contends that the warrant was proper on its face, and that the instant motion should be denied.

Where a motion to suppress has been filed, the burden is on the commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d, 1030, 1031 (1992).

Under Pennsylvania Rule of Criminal Procedure 205, a search warrant shall be signed by the issuing authority, and shall: “...(2) identify specifically the property to be seized, and; (3) name or describe with particularity the person or place to be searched.” Pa.R.C.P.205. The comment to Rule 205 explains:

Paragraphs (2) and (3) are intended to proscribe general or exploratory searches by requiring that searches be directed only towards specific items, persons, or places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description may suffice. See Commonwealth v. Matthews, 446 Pa. 65, 69-74, 285 A.2d 510, 513-14 (1971).

Pa.R.Crim.P. 205, comment. A practical, common sense approach should be taken in determining whether the place to be searched is specified with sufficient particularity. Commonwealth v. Carlisle, 517 Pa. 36, 41, 534 A.2d 469, 472 (1987).

The defendant cites to Commonwealth v. Carlisle in support of his position. In that case, the defendant was arrested and charged with conspiracy and the operation of lotteries from her apartment. Carlisle, supra, at 39, 470. The search warrant contained only the address of the building and a description of the building itself, though the affidavit stated that the defendant had been operating out of apartment one. Supra, at 38, 470. Only the defendant’s apartment was searched, although the building contained three apartments. Supra, at 39, 471. The defendant moved to suppress evidence seized during the search, arguing that the affidavit in support of the application for the search warrant did not establish probable cause and that the warrant authorized a search of the entire building, which was a broader search than could be justified by the probable cause on which it was based. Supra, at 39-40, 471. The trial court granted the defendant’s motion, and the Superior Court reversed, holding that probable cause did exist and that the warrant was precise enough that a police officer would be able to tell which units he was authorized to search. Supra, at 40, 471.

The Supreme court noted that a search warrant directed against an apartment house, or other multiple-occupancy structure will be held invalid for lack of specificity if it fails to describe the particular room or sub-unit to be searched with sufficient definiteness to preclude a search of other units. Carlisle, supra, at 40, 471. However, the Supreme Court held that a search warrant should be construed along with the affidavit, rather than construing the search warrant alone. Supra, at 42, 472. In applying a practical, common sense approach, the court reasoned that the officers conducting the search would know which apartment was to be searched based on information provided by both the search warrant and the affidavit, rather than the search warrant alone. Supra, at 43,472.

In Commonwealth v. Kiessling, the Superior Court held that a search warrant that misidentified the location of the premises to be searched in a multi-dwelling building was not invalid. Commonwealth v. Kiessling, 380 Pa. Super. 442, 552 A.2d 270 (1988). in Kiessling, the defendant was convicted for possession of cocaine, possession with intent to deliver cocaine, and possession of marijuana. Id. at 443, 272. The defendant appealed, maintaining that the search warrant was invalid because it described the apartment to be searched as located on the top floor, when in fact the defendant lived on the bottom floor of the building. Id. The defendant argued that a search warrant for a multiple-unit dwelling was invalid for lack of specificity where it failed to describe the particular room or sub-unit to be searched with sufficient definitiveness to preclude the search of other units. Id. at 444, 271.

The Superior Court rejected the defendant’s argument, observing that traditional Fourth Amendment protections are not violated where the error is minimal and is based on information that the police reasonably believed to be accurate. Kiessling, at 445, 272. The court noted that the officers who conducted the search realized the mistake on the warrant almost immediately, and became aware that the defendant’s residence was in fact on the first floor of the building. Id. at 447, 273. The court concluded that the officers’ conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment. Id. at 447, 273, citing Maryland v. Garrison, 480 U.S. 79, 88, 107 S.Ct. 1013, 1019 (1987).

In Commonwealth v. Kaplan, 234 Pa. Super. 102, 339 A.2d 86 (1975), the superior court held that a search warrant directing a search of an apartment house occupied by a number of different tenants, which states the name of the person occupying the apartment to be searched is valid. In Kaplan, the defendant challenged the validity of a search warrant which described the premises to be searched as the third floor front apartment, when in fact the defendant’s apartment was actually the third floor rear apartment of the building. Id. at 104, 87. The court held that the description of the premises in the warrant was sufficient to enable the police to search the correct apartment, despite the slight error. Id. at 105-06, 88; citing Commonwealth v. Fiorni, 202 Pa. Super. 88, 195 A.2d 119 (1963)(holding that it is not necessary to set forth the exact location of an apartment within a building in the search warrant).

In the case subjudice, the search warrant itself describes the premises to be searched as a white duplex located at 302 Boyles Avenue. The search warrant also states that the entrance to the defendant’s apartment was through the rear door. The affidavit of probable cause, however, notes that New Castle Police relied on information provided by Mr. Andrews, who stated that the defendant used the rear door when entering and exiting the residence. The search warrant must be construed in conjunction with the affidavit, rather than by itself, in determining whether New Castle Police had reasonable knowledge of which particular apartment within the building was to be searched. Commonwealth v. Carlisle, supra, at 43, 472.

The facts of the case subjudice are analogous to those within Kiessling, supra, and Kaplan, supra. Here, New Castle Police reasonably believed that the entrance to the defendant’s apartment was located at the rear of the building. Sergeant Seelbaugh also testified that information provided by several individuals and photographs found on Facebook indicated that the defendant’s apartment had a sharp tilted roof, which led them to reasonably believe that the apartment was located on the second floor of the building.

After making contact with what turned out to be the third floor’s occupants, the SRT immediately realized the mistake and reevaluated their plan to execute the warrant. The SRT did not search the third floor apartment. After locating the defendant’s mail in a first floor mailbox, the SRT was able to ascertain which particular apartment within the building was the defendant’s, and executed the search warrant.

Although the search warrant did not accurately describe which level of the building the defendant’s apartment was located, it did particularly describe the person and place to be searched. The information provided to New Castle Police by Mr. Andrews and several other individuals was reasonably relied on and accurate to the extent that the defendant’s apartment was in fact located at 302 Boyles Avenue. Furthermore, the search warrant specified that the items to be located were a 9 millimeter handgun, 9 millimeter ammunition, and a blue, zip-up hoodie. The general, sweeping searches that the Fourth Amendment and Article 1, § 8 were enacted to proscribe are not present in this case. The building was not searched until the defendant’s apartment was located. Once the SRT realized the mistake, they descended from the third floor of the building.

The evidence provided by the commonwealth indicates that New Castle Police had reasonably accurate knowledge of the location of the defendant’s apartment and the items to be seized. This knowledge is supported by statements taken from Mr. Andrews and other individuals and was reasonably relied upon by New Castle Police. That the exact location of the defendant’s apartment within the building at 302 Boyles Avenue was not identified does not invalidate the otherwise valid search warrant.

The defendant also argues that there were no exigent circumstances present to excuse New Castle Police from being required to obtain another warrant. The defendant cites Commonwealth v. Demshock, 854 A.2d 553 (Pa.Super. 2004), arguing that exigent circumstances cannot be found where police create the exigent circumstances themselves. The defendant maintains that New Castle Police created any exigent circumstances when the SRT entered the third floor apartment and lost the element of surprise. However, since the court has determined that the warrant was valid and authorized the search of the residence at 302 Boyles Avenue, New Castle, PA, occupied by defendant is not necessary to determine if exigent circumstances authorized a search and seizure without a valid warrant.

Accordingly, the commonwealth has demonstrated by a preponderance of the evidence that New Castle Police were provided with reasonably accurate information about the location of the apartment occupied by defendant and the specific items to be located therein. That the New Castle Police initially and mistakenly believed that the defendant’s apartment was located on the third floor of the building does when it was on the first floor, not invalidate the otherwise valid search warrant. Therefore, the defendant’s motion for suppression must be denied.

ORDER OF COURT

And now, February 1, 2013, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged, and decreed that the defendant’s motion for suppression of evidence is hereby denied.

The court notes that this case is on the February 2013 trial list.


author: TUCKER, J.,

text:
    Olsen v. SEPTA

      Craig A. Sopin, for plaintiff.

      Thomas P. Wagner, Thomas J. McKenzie and Simona Kasurkin for defendant.
    February 6, 2013
   TUCKER, J.,

I. Procedural History

This matter comes before the court on appeal from an order granting Charles Olsen’s (hereinafter referred to as “appellee Olsen”) motion for summary judgment. Order entered by J. Tucker (11/08/2012). The court, upon consideration of the motion for summary judgment and responses thereto, granted summary judgment in favor of appellee Olsen and against his wife, Bernadette Olsen (hereinafter referred to as “appellant”). Order entered by J. Tucker (11/8/2012). The basis of this judgment is on appeal.

On June 27, 2011, appellant filed a praecipe to issue in the Philadelphia County Court of Common Pleas against the Southeastern Pennsylvania Transportation Authority, First Transit, Inc. t/a Connect, Tiwanda Ross-Coins (hereinafter referred to collectively as “appellee SEPTA”) and appellee Olsen. Prae. to issue writ of summons (06/27/2011), On August 3, 2011, appellee SEPTA filed a rule to file complaint. Rule to file complaint (08/03/2011); rule to file complaint (08/03/2011), August 4, 2011, appellant filed a complaint against appellee SEPTA and appellee Olsen, seeking damages for injuries arising out of an automobile accident between a SEPTA vehicle and a car in which appellant was a passenger, complaint (08/04/2011).

On September 2, 2011, appellee SEPTA filed preliminary objections. Prelim, objections (09/02/2011). Appellee Olsen filed an answer to appellant’s complaint with a cross-claim against appellee SEPTA and a new matter. Answer to complaint filed (09/02/2011). Appellant filed her reply to appellee Olsen’s new matter on September 6,2011. Reply to new matter (09/06/2011). Appellant filed her answer to appellee SEPTA’s preliminary objections, and appellee SEPTA filed its reply to appellee Olsen’s cross-claim. Answer to prelim. Obj. (09/06/2011); reply to crossclaim (09/08/2011).

Appellee SEPTA subsequently filed a motion to consolidate the instant case and a second lawsuit arising out of the same events brought by appellee Olsen against Southeastern Pennsylvania Transportation Authority, First Transit, Inc. t/a Connect, and Tiwanda Ross-Goins at court and term number June term, 2011, No. 2545. Mot. to consolidate (09/21/201 l)(Court & term no. 110602529); mot. to consolidate (09/21/201 l)(court & term no. 110602545). Upon consideration of the preliminary objections and the related answer and reply, the court entered an order sustaining appellee SEPTA’s preliminary objections in part, resulting in certain portions of the complaint being stricken. Order entered by J. Panepinto (10/19/2011). Appellee SEPTA thereafter filed its answer with new matter and cross-claim against appellee Olsen, answer (10/28/2011). Appellee Olsen filed his reply to appellee SEPTA’s cross-claim on November 10, 2011. Reply to cross-claim (11/10/2011). The court granted appellee SEPTA’s motion to consolidate on November 21, 2011. Order entered by J. Panepinto (11/21/201 l)(court & term no. 110602529); Order entered by J. Panepinto (11/21/201 l)(court & term no. 110602545). On December 8, 2011, appellee Olsen was ordered to provide full, complete and verified responses to appellee SEPTA’s request for production of documents. Order entered by J. Moss (12/08/2011). A Philadelphia County Compulsory Arbitration Hearing was scheduled and held on April 30, 2012. Arbitration hearing scheduled (02/22/2012).

On April 30, 2012, the arbitration panel filed an award in favor of appellee SEPTA and against appellant. Report and award of arbitrators (04/30/2012). The arbitration panel found in favor of appellant and against appellee Olsen as to liability; however the arbitration panel did not award damages to appellant because she permitted an unauthorized driver to operate her vehicle in violation of 75 Pa. C.S. § 1574. Id.

On May 25, 2012 appellant filed a notice of appeal of the arbitration award. Notice of appeal (05/25/2012). On August 17, 2012 appellant filed a motion to remand the arbitration award. Mot. to remand. (08/17/2012). The court denied appellant’s motion to remand. Order entered by J. New (08/20/2012). On August 28 and 31, 2012, appellee SEPTA and appellee Olsen filed motions for summary judgment, respectively. Mot. for summary judgment (08/28/2012); Mot. for summary judgment (08/31/2012). On September 10, 2012 appellant filed answers to both appellee SEPTA’s and appellee Olsen’s motions for summary judgment. Answer to appellee SEPTA mot. (09/10/2012); answer to appellee Olsen mot. (09/10/2012). The court denied appellee SEPTA’s motion for summary judgment. Order entered by J. Tucker (11/08/2012). The court granted appellee Olsen’s motion for summary judgment. Order entered by J. Tucker (11/08/2012), appellant thereafter filed a partial discontinuance with respect to appellee SEPTA, having settled the matter. Partial discontinuance (11/28/2012).

Appellant filed an untimely appeal to the court’s November 6, 2012 order, docketed November 8, 2012, on December 10, 2012. Appeal to Superior Court (12/10/2012). The court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa. RAP. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (12/13/2012). On December 17,2012, appellant filed a response wherein appellant raises the following issues on appeal, verbatim:

1. The trial court erred in granting appellee, Charles Olsen’s, motion for summary judgment since a bar to recovery by appellant because of appellant’s alleged permissive use of her vehicle by an unlicensed driver pursuant to 75 Pa. C.S. Section 1574(b) would require a finding of guilt by Philadelphia Traffic Court of which there is no evidence of record.
2. The trial court erred in granting appellee, Charles Olsen’s, motion for summary judgment since assuming, arguendo, appellant’s permissive use of her vehicle by an unlicensed driver could serve to preclude her recovery without a finding of guilt pursuant to 75 Pa. C.S. Section 1574(b), the record reflects that she was suffering a diabetic emergency during which she did not possess normal cognitive faculties. Therefore, the question of whether she was culpable under the circumstances under section 1574(b) was a question for a finder of fact.
3. Appellant is unaware of the trial court’s reason(s) for granting summary judgment and dismissing her claims. Therefore, appellant reserves the right to supplement her statement of matters complained of once a copy of the trial court opinion is received.

1925(b) statement (12/17/2012).

II. Facts

On July 6, 2009 at approximately 6:45 p.m. appellant was a passenger in a vehicle owned by appellant and operated by appellee Olsen, which was traveling southbound in the right lane of Verree Road near the intersection of Red Lion Road in Philadelphia, complaint (08/04/2011). About that time, the vehicle collided with a SEPTA para transit vehicle that had also been traveling southbound on Verree Road. Id. At the time of the accident, appellee Olsen was not licensed to operate a motor vehicle. Mot. for summary judgment (08/31/2012). As a result of the accident, both appellant and appellee Olsen sustained personal injuries, which are the basis of their individual claims against appellee SEPTA and appellant’s claims against appellee Olsen, complaint (08/04/2011).

On April 30, 2012, after having been consolidated with another matter, the instant matter was sent to compulsory arbitration; a ruling was entered in favor of appellee SEPTA and against appellant. Report and award of arbitrators (04/30/2012). As between appellant and appellee Olsen, the arbitration panel found in favor of appellant and against appellee Olsen as to liability but awarded no damages, due to the panel finding appellant vicariously liable for appellee Olsen’s negligence pursuant to 75 Pa. C.S. § 1574, for permitting appellee to operate her vehicle despite being an unlicensed driver. Report and award of arbitrators (04/30/2012). The basis of appellant’s motion to remand, also the basis of this appeal, was that a determination of guilt for violation of a summary offense is a condition precedent to j oint and several liability. B ased on this argument, appellant states she could not be found jointly and severally liable for her injuries because no court of competent jurisdiction had made such a determination.

The court disagrees. A discussion ensues:

III. Legal Analysis

a. Appellant did not timely file an appeal pursuant to the Pennsylvania Rules of Appellate Procedure.

It is well settled that an “appeal shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903” Pa.R,A.P. 902. An appeal must be filed within thirty (30) days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903. Filing a motion for reconsideration does not toll the time for taking an appeal Pa.R.A.P. 1701.

Here, the docket reflects that appellant did not file her notice of appeal with the Court of Common Pleas of Philadelphia County within thirty (30) days of the entiy of the November 8, 2012 order. Appeal to Superior Court (12/10/2012). Pa.R.A.P. 903. Appellant is two (2) days too late. Therefore, appellant’s issues on appeal are waived.

b. Notwithstanding waiver, the Court properly dismissed appellant’s claims against appellee Olsen because appellant was vicariously liable for her own injuries pursuant to the Pennsylvania Vehicle Code,

Under the Pennsylvania Rules of Civil Procedure, summary judgment is proper:

1. Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report; or
2. If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P.1035.2. Under this standard, a movant may successfully obtain summary judgment in their favor by demonstrating that the record does not contain sufficient evidence of facts to make out a prima facie cause of action. Id. (Note). In considering a motion for summary judgment, the court views the record in the light most favorable to the non-moving party, and resolves all doubts as to the existence of a genuine issue of material fact against the moving party. Price v. Leibfried, 34 A.3d 1279, 1281 (Pa. Super. 2011).

Section 1574(a) of the Pennsylvania Vehicle Code provides that “no person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type of class of vehicle to be driven.” 75 Pa.C.S. § 1574(a). Section 1574(b) further provides that one who violates Section 1574(a) is “jointly and severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle.” 75 Pa. C.S. § 1574(b). Courts have interpreted the legislative intent behind these provisions to hold the vehicle owner vicariously liable for such damages caused by unauthorized drivers. Terwilliger v. Kitchen, 781 A.2d 1201, 1207 (Pa. Super. 2001) (citing Commonwealth of Pennsylvania, Dep’t of Public Welfare v. Hickey, 582 A.2d 734 (Pa. Cmwlth. 1990)).

Specific to the issues raised in appellee Olsen’s motion for summary judgment, the court finds the reasoning in Price, supra, controlling, In Price, the Pennsylvania Superior Court addressed the issue of whether a passenger is vicariously liable to herself and thus per se barred from pursuing a claim against a driver in instances where the passenger owned the vehicle and “authorized or permitted” the driver to operate the vehicle knowing that they did not have a valid driver’s license, Price, 34 A.3d at 1281-1283. After determining that there were no genuine issues of material fact as it applied to the vehicle code, the Price court held that the injured passenger in that case could not recover damages from the driver because she was vicariously liable for the driver’s actions. Id. at 1283 (stating “As one vicariously liable for [the driver’s] actions, she cannot recover damages from him. The trial court properly granted summary judgment in [the driver’s] favor”)).

Here, appellant disputes the aforementioned principles. First, appellant opines that Section 1574(b) requires a finding of guilt as a precursor to joint and several liability, meaning that this court lacks jurisdiction if there is no finding of guilt by a court of competent jurisdiction under the vehicle code. Answer to appellee mot/filed (09/10/2012) (“[T]he penalty provision provides that a violator is guilty of a summary offense and shall be jointly and severally liable is in the conjunctive. In other words, in order for [appellant] to be jointly and severally liable she must have been criminally liable (i.e. ‘guilty’)”). Id.

This is a specious interpretation of Section 1574. Section 1574(b) does not preclude joint and several liability absent a finding of guilt, nor does it purport to be a test for determining joint and several liability. Section 1574(b) simply sets forth the legal implications, or penalty, of violating Section 1574(a). If the Legislature had intended Section 1574(b) to lay out the requirements for determining joint and several liability, it would have made some textual commitment to that end.

Second, appellant submits that the well-settled rules of law outlined above are not applicable to the matter sub judice. appellant construes Price, supra, to stand for something other than the principle that one who knowingly authorizes an unlicensed driver to operate his or her vehicle is per se barred from pursuing a claim against the driver. Answer to appellee mot. (09/10/2012). In distinguishing Price from the case before the court, appellant cites several factual observations made by the Price court. Id. However, these observations only informed the court’s understanding of the plaintiff’s state of mind at the time consent was given to operate the vehicle; the plaintiff’s consent to let an unlicensed driver operate her vehicle is the linchpin of the court’s ruling. Price, 34 A.3d at 1281-1283.

In support of this proffered distinction, appellant offers her own testimony to show how the circumstances of her knowledge differed from the plaintiff’s knowledge in Price. This testimony is not helpful to appellant’s argument. In her answer to appellee Olsen’s motion for summary judgment, appellant offers the following testimony:

Mr. McKenzie: Okay. Was there a conversation about who should drive?
Ms. Olsen: Because my sugar dropped real low, I wasn’t thinking clearly, because that’s how I get -1 get very disoriented - and I just said to my husband, you drive. You have to hurry. You have to get me something. Because I was afraid I was going to pass out.
He said, you know I don’t have a license. I said, well, it’s important, I’m afraid I’m going to pass out. I said, it’s only up to the corner. And it was just a bad-I shouldn’t have told him to do it.

Answer to appellee mot. (09/10/2012) (quoting B, Olsen Dep. 22) (01/20/2012)(emphasis added)); mot, for summary j. (08/31/2012). This testimony only further demonstrates that appellant knowingly permitted appellee Olsen to operate her vehicle despite being unlicensed. Id. The record clearly demonstrates, and appellant does not dispute, that appellant knew appellee Olsen was an unlicensed driver and nonetheless knowingly gave him permission to operate her vehicle. Id.

Appellant’s deposition also reveals that she certainly knew the status of appellee Olsen’s license well in advance of the date of the accident. In her deposition she stated:

Mr. McKenzie: How long did your husband not have a license at the time of the accident?
Ms. Olsen: I think it was about a year.

Mot. for summary j. (08/31/2012)(quoting B. Olsen Dep. at 12) (01/20/2012). Appellant further testified:

Mr, McKenzie: You said that your husband’s driver’s license was suspended or revoked for approximately a year before the incident?
Ms. Olsen: Yes.
Mr. McKenzie: Do you know what it was suspended or revoked for?
Ms. Olsen: He was driving a car and the registration lapsed.
Mr. McKenzie: Was he driving your car?
Ms. Olsen: Yeah, it was my car, and the registration lapsed. And a policeman gave him a ticket for his license to be -
Mr. McKenzie: Suspended or revoked?
Ms. Olsen: You know, suspended, yeah, for registration.
Mr. McKenzie: And that was for driving a vehicle that wasn’t registered at the time?
Ms. Olsen: Yeah, and that was in Willow Grove.
Mr. McKenzie: When did you find out that your husband’s driver’s license was suspended or revoked?
Ms. Olsen: When he got the ticket.

Id. atB. Olsen Dep. 15:22-16:18 (01/20/2012).

Lastly, appellant’s deposition reveals that, contrary to her contention that she was not thinking clearly at the time she consented to her husband, appellee Olsen’s driving her vehicle, appellant made a conscious and cogent effort to convince her husband to operate the vehicle. Following her explanation of reasons for asking her husband to drive, quoted above, appellant admits that she told appellee Olsen to drive despite knowing he did not have a valid license:

Mr. McKenzie: I understand. But you actually told him to drive?
Ms. Olsen: Yeah. And it was pretty much against his will.

Id. at B. Olsen Dep. 23:13-16 (01/20/2012). Appellant’s deposition provides ample testimony from which it can be concluded that there is no genuine issue of material fact regarding appellant’s knowledge of appellee Olsen’s status as an unlicensed driver and appellant’s authorization to drive her vehicle in spite of that knowledge. Price, 34 A.3d at 1281-1283

IV. Conclusion

Appellant failed to timely file an appeal of the court’s order granting appellee Olsen’s motion for summary judgment; therefore, appellant’s claims on appeal are waived. Nevertheless, after careful review, the court finds appellant’s claims without merit. First, appellant’s attempt to dispute a well-settled rule of law is unpersuasive. Appellant does not point to any legitimate authority to substantiate her interpretation of the law, and in so doing, concedes the rule of law she seeks to contradict. Second, appellant submits that, the law notwithstanding, material questions of fact existed, precluding summary judgment in favor of appellee Olsen. Not only does the record belie this contention, but appellant also cites portions of her own deposition testimony that undercut the merits of the argument. It is clear from appellant’s testimony that, regardless of her state of mind immediately prior to the accident, appellant knowingly requested that appellee Olsen drive her vehicle despite being fully aware that appellee Olsen did not have a valid driver’s license. There are no genuine issues of fact as to these issues. The court’s ruling should stand.


author: WILLIAMSON, J.,

text:
    Martinez v. Uckele.

      Jennifer R. Sletvold, for plaintiff.

      Gary A. Brienza and James A. Swetz, for defendant.
    January 8, 2013
   WILLIAMSON, J.,

Jacqueline Martinez (hereafter “plaintiff’), as administratrix of the estate of Justin B. Uckele (hereafter “decedent”), and as mother and legal guardian of Justin B. Uckele Jr., a minor, initiated this action by filing a complaint on May 9, 2011. Plaintiff’s complaint alleges that the decedent died as a result of the unlawful actions of Bernard J. Uckele and Concetta Uckele (hereafter “defendants”). Specifically, plaintiff’s complaint alleges that decedent died on June 21, 2009 after being fatally shot by his father, defendant Bernard J. Uckele. Plaintiff also alleges that she and the decedent had plans to marry, and at the time of decedent’s death, plaintiff was pregnant with Justin B. Uckele Jr. (“minor child”). Plaintiff alleges the decedent was the father of Justin B. Uckele, Jr. Plaintiff alleges causes of action for wrongful death and survival against defendants.

Defendants filed an answer and new matter on November 4, 2011. In their answer and new matter, defendants assert that the paternity of the minor, Justin B. Uckele Jr., is unknown to them. Accordingly, on August 23, 2012, plaintiff filed the instant petition pursuant to 23 Pa. C.S.A. §5104 to conduct deoxyribonucleic acid (“DNA”) tests on defendants in order to establish if there is a blood relationship between defendants and the minor, Justin B. Uckele Jr., their purported grandchild. Plaintiff contends that DNA testing is necessary to pursue the wrongful death and survival action in favor of the minor child.

On September 11, 2012, this court issued a rule returnable upon defendants to show cause why the petition should not be granted. On September 21,2012, defendants filed their answer to petition and new matter. On October 4, 2012, plaintiff filed an answer to new matter of defendants. Plaintiff filed a brief in support of petition on October 15, 2012. Plaintiff filed a praecipe for argument on October 19, 2012. Defendants filed a brief contra plaintiff’s petition on November 19, 2012. Arguments were heard on December 3, 2012. Plaintiff filed a supplemental brief on December 10, 2012. Defendants filed a supplemental brief on December 12,2012. We are now ready to dispose of this matter.

DISCUSSION

Plaintiff has petitioned this court pursuant to 23 Pa. C.S.A. §5104 (uniform act on blood tests to determine paternity) to order defendants to submit to a blood test in order to determine the paternity of Justin B. Uckele Jr. The uniform act states, in part, as follows:

“(b) Scope of section.—
(1) Civil matters. — This section shall apply to all civil matters.
(c) Authority for test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parcentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.”

23 Pa. C.S.A. §5104

It is clear from reading the statute that this section applies to all civil matters, and therefore applies to this wrongful death and survival action. It is also clear that the determination of whether or not decedent is the father of Justin B. Uckele Jr. is a material fact in a wrongful death and survival action brought by the representative of Justin B. Uckele Jr., because if the decedent is not Justin B. Uckele Jr.’s father, Justin Jr. would not be able to recover under a wrongful death and survival action.

Less clear is whether the statute permits this court to order the defendants, putative grandparents, to submit to blood tests to determine if their deceased son is the father of Justin B. Uckele Jr. It appears to this court that this case is a matter of first impression within the commonwealth. The statute states that the court may order the mother, child, and alleged father to submit to blood tests. 23 Pa. C.S.A. §5104 (c). However, the next sentence in the statute reads “[i]f any party refuses to submit to the tests...” 23 Pa. C.S.A. §5104 (emphasis added). That sentence could be read to mean that if any party in a proceeding refuses, in addition to mother, child, and alleged father, a court could order relief. The statute does not state that only the mother, child, and alleged father may be ordered to submit to blood tests. Additionally, the statute does not specifically exclude putative grandparents from blood testing.

We find it difficult to believe that the legislature, in drafting the Uniform Act, had this current scenario in mind. In this case, the defendant Bernard Uckele, father of the decedent, was the cause of decedent’s death. At oral argumentinthismatter,weaskedthepartiesifthedecedent’s body was available to be exhumed in order to have DNA tests done on his blood or tissues. In a letter to the court dated December 11,2012, plaintiff’s counsel informed the court that plaintiff believes the defendants had decedent’s body cremated. The defendants did not respond. Not only was defendant Bernard Uckele responsible for decedent’s death, the defendants also had the body cremated. Even if this act was unintentional, it is impossible for decedent’s DNA to be tested in determining the paternity of Justin B. Uckele Jr. The only other way to confirm paternity is through DNA testing of the defendants.

As this particular circumstance has never been determined by Pennsylvania courts, we look to similar situations in other areas of commonwealth jurisprudence. Namely, Pennsylvania Rule of Evidence 804(b)(6) Hearsay Exception: Forfeiture by Wrongdoing. Pa.R.E. 804(b)(6) states, in relevant part:

b) Hearsay exceptions. The following statements as hereinafter defined are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Pa. R.E. 804(b)(6).

In crafting this hearsay exception, it is clear that the intention is to deny someone from profiting favorably from a wrongdoing. Parties cannot hide behind a claim of hearsay when they themselves caused the inability for the witness to testify.

Pennsylvania courts have used the forfeiture by wrongdoing exception to prohibit parties from excluding information from cases where that party’s own actions are both hindering judicial economy, and furthering that party’s own interests. See Commonwealth v. King, 949 A.2d 405 (Pa.Super. 2008) (where victim’s prior statements to officer about defendant’s illegal activities were admissible under forfeiture by wrongdoing exception to hearsay rule, where evidence indicated that defendant shot victim to render him unavailable to testify against defendant in connection with his illegal arms purchases).

Under the Slayer’s Act, a person who causes the death of the decedent cannot inherit or acquire any property or benefit as a result of the death of the decedent. 20 Pa. C.S.A. §8802. Again, the intention is that no one who causes a death should benefit from that death, even if otherwise legally able to do so. The analogy that we are making (and it is by no means a perfect analogy) from these exceptions to the rule is that defendants, who have caused the death of a person, should not benefit from such death under the law. Likewise, defendants should not be allowed to dodge the issue of paternity under the argument that the Uniform Act only allows the mother, child, and alleged father to be ordered to submit to blood testing. To do so would be to allow the defendant Bernard Uckele to hide behind his wrongful act that otherwise prevented the ability of the decedent to be available. In this case, but for the actions of defendant Bernard Uckele in killing the decedent, and the defendants cremating the decedent’s remains, the decedent’s blood and tissue would be able to be used for paternity testing. Furthermore, even if the decedent’s body was available for testing, it would be an unreasonable burden and expense to obtain his DNA, when the defendants in the case can supply the necessary testing.

Defendants cite a California court’s interpretation of a similar statute as persuasive evidence for this court to deny plaintiff’s petition. William M. v. Superior Court, 225 Cal. App. 3d 447 (Ct.App. 1990). In William M, the California court’s interpretation of the evidence code section 892, was that the code did not authorize the court to order the putative paternal grandparents to submit to blood tests. There are several differences between the California case and the present situation. First, William M., was a paternity case. This is a wrongful death and survival action. Second, the putative paternal grandparents in William M. were not responsible for decedent’s death, nor were they responsible for the destruction of decedent’s blood and tissue to prevent the testing for paternity. Third, the grandparents in William M. were not the named defendants and parties to the suit as they are here. Therefore, we do not find the California case persuasive in this instance.

Finally, the interests of justice and judicial economy support granting plaintiff’s petition. Defendants argue that plaintiff has another option by proving paternity by clear and convincing evidence pursuant to 20 Pa.C.S.A. §2107(c)(3). Such a standard may very well require blood tests anyway in order to confirm paternity. See In Re Estate of Greenwood, 402 Pa. Super. 536, 587 A.2d 749 (1991) (dealing with issue of time limitation in action seeking test of father’s blood samples to prove heirship in probate proceeding). In any event, section 5104 states, “[i]f any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or indentity of a child against the party or enforce its order if the rights of others and the interests of justice so require.” 23 Pa. C.S.A. §5104. Defendants have refused to submit to blood tests. They are defendants in this case where the issue of paternity is a central issue and in which they seek to hide behind their son’s death, caused by his own father who is also a defendant in this case. Regardless of however else plaintiffs may be able to prove paternity, there is a statutorily prescribed method available for the court’s use in determining paternity in this case. Therefore, this court finds that the interests of justice and judicial economy support ordering defendants to submit to blood testing.

After reviewing 23 Pa. C.S.A. §5104, and the unique circumstances of the present case, we find that this statute and other similar commonwealth jurisprudence, public policy, and fairness, demand that defendants submit to a blood test to determine the paternity of Justin B. Uckele Jr.

ORDER

And now, January 8, 2013, after reviewing plaintiff, Jacqueline Martinez’s, petition for genetic testing, it is hereby ordered that defendants, Bernard J. Uckele and Concetta Uckele, submit to blood testing to determine the paternity of Justin B. Uckele Jr., a minor, within 30 (thirty) days of the date of this order.

      . Bernard J. Uckele was found guilty of involuntary manslaughter on 9/17/10.

      . “In a civil action in which paternity is a relevant fact, the court may upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, and shall upon motion of any party to the action made at a time so as not to delay the proceedings unduly, order the mother, child, and alleged father to submit to blood tests....” William M. at 450. (Italics added.) Repealed by Stats.1992,c. 162 (A.B.2650), §9, operative Jan. 1, 1994.