author: SMYTH, J.,

text:
    Commonwealth v. Henry

      C.P. of Montgomery County,
    No. CR-7724-12; 3559 EDA 2013

      Thomas W. McGoldrick, for Commonwealth.

      Craig Hosay, for defendant.
    July 18, 2014
   SMYTH, J.,

Michael Joseph Henry is not himself a “cop killer.” However, by heavily and repeatedly arming one, he contributed to a cop killing, if not in the strictly legal sense of an accomplice, then as a substantial factor, and his crimes led, predictably, to the death of one mourned by his family, community, and region and praised as one of our nation’s finest.

This is Henry’s appeal to the Superior Court of Pennsylvania from judgments of sentence totaling twenty to sixty-six years in prison imposed on him following his open pleas of guilty to charges arising from his acting as a “straw man” to illegally purchase nine firearms on behalf of a man Henry knew was not authorized to possess them. The man to whom Henry transferred the guns later ended up killing a police officer with one of them, as the man had warned Henry might happen. Henry’s appeal contests the total length and discretionary aspects of this lower court’s sentences.

Represented in this matter by the Montgomery County Public Defender, Henry pled guilty to the following crimes: (A) nine counts of intentionally or knowingly making a materially false written statement in the purchase of a firearm under the Pennsylvania Uniform Firearms Act of 1995,18 Pa.C.S. § 6111(g)(4)(h), athird-degree felony for which the Crimes Code, 18 Pa.C.S. § 1103(3), prescribes a maximum sentence of seven years in prison; (B) seven counts of intentionally or knowingly transferring a firearm in violation of 18 Pa.C.S. § 6111(g)(1), a second-degree misdemeanor with a maximum sentence of two years in prison, 18 Pa.C.S. §1104(2); and (C) seven counts of unsworn falsification to authorities under 18 Pa.C.S. § 4904(b), a third-degree misdemeanor with a maximum of one year in prison, 18 Pa.C.S. § 1104(3). After accepting the pleas as knowingly, voluntarily, and intelligently tendered, this court ordered presentence investigative reports under Pa.R.Crim.P. 702(A), (B) (Open Guilty Plea Tr. 25, Mar. 12, 2013) and upon receiving them from the County Probation/Parole Department in June 2013 set the case down for sentencing August 15, 2013.

On August 6, 2013, we notified the parties that due to the large crowd of people expected to attend the sentencing hearing, we had moved it from our regular courtroom in the Montgomery County Courthouse to a larger one, Courtroom “A.” No party registered an objection on the record, either before or at the sentencing proceeding, to its being held in Courtroom “A.”

At sentencing, the court commenced by asking if the parties had any objections or corrections to the psychiatric/ psychological evaluations (PPI) or to the presentence investigative report (PSI), the latter of which had attached to it copies of letters from the slain officer’s brother, mother, and widow. Without objection, we admitted the PSI into the record. (Sentencing Tr. 4, Aug. 15, 2013.)

To outline for the Superior Court in narrative form basic undisputed facts and circumstances surrounding the case, we quote from the PSI (which itself quotes from the police affidavit of probable cause):

On Thursday, September 13,2012, at 5:16 PM, [o] fficers from the Plymouth Township Police Department were investigating a [three-vehicle] accident at 1215 East Ridge Pike in the Conshohocken section of Plymouth Township.
While conducting traffic control at the accident scene, Plymouth Township Police Officers observed [an Infiniti SUV] operated by the suspect [sic], Andrew Thomas, traveling eastbound at a high rate of speed on Ridge Pike. The vehicle was passing stopped traffic in the opposing lane of traffic.
At 5:42 PM, Plymouth Township Police Officer Bradley Fox, and assisting officers, followed the Infiniti SUV from Ridge Pike onto southbound Conshohocken Road. While travelling on Conshohocken Road, the Infiniti struck a [sedan]. Following this crash, Officer Fox observed that the Infiniti sedan [sic] travelled onto Ernest Station Road[,] where the suspect abandoned the vehicle. Officer Fox and his K9 partner pursued Thomas into an industrial area[,] where Thomas fired multiple gunshots at Officer Fox. Officer Fox was struck by gunfire and transported to Montgomery Hospital[,] where he was pronounced dead.
Plymouth Township Police Officers, assisted by responding law[-] enforcement officers, set up a perimeter and began to search the area for the perpetrator. During a K9 search of the area, the body of Andrew Thomas was discovered in a field adjacent to Ernest Station Road. A Beretta 9mm [pjistol, serial number BER593388[,j was found next to his body.
The Montgomery County Detective Bureau initiated an investigation into the homicide of Officer Bradley Fox.
Montgomery County Detective John Finor, a member of the Forensic Services Unit and an expert in the field of [bjallistics and [fjirearms [ijnvestigation, processed the crime scene. Detective Finor recovered fired 9mm shell casings and fired bullets in proximity to the location where Officer Fox was mortally wounded and in the area where Andrew Thomases] body was found. Following ballistics examinations, Detective Finor opined that the recovered fired shell casings and fired bullets were consistent with being fired from the Beretta 9mm pistol bearing serial number BER593388 recovered next to Thomas[’s] body.
The Infiniti SUV was also searched during the crime scene investigation. Detectives examined the Vehicle Identification Number (VIN) and learned that the Infiniti was reported stolen on April 8, 2010, from an automobile dealership in Lower Providence Township, Montgomery County. No additional firearms were recovered during the search of the Infiniti SUV.
OnFriday, September 14,2012, Doctor Erica Williams, a [fjorensic [pjathologist, performed an autopsy on the body of Officer Bradley Fox. Following the autopsy, Doctor Williams opined that Officer Fox died as a result of a gunshot wound to the head and that the manner of death was homicide.
On Friday, September 14,2012, Doctor Erica Williams performed an autopsy on the body of Andrew Thomas. Following the autopsy, Doctor Williams opined that Thomas died as a result of a gunshot wounds to the chest and that the manner of death was suicide.
On Friday, September 14, 2012, Montgomery County Detective Christopher Kuklentz interviewed Jeanette Thomas at 105 Grasmere Road, Lower Merion Township, Montgomery County, PA. Jeanette Thomas is the mother of Andrew Thomas. Jeanette Thomas told detectives that she resides with her son Andrew Thomas at 105 Grasmere Road. She said that she last saw Andrew Thomas in the afternoon of Thursday, September 13, 2012, when he left her home. Jeanette Thomas consented to a cursory search of the residence. During that search, detectives recovered a cellular phone[,] which Jeanette Thomas identified as being owned by her son Andrew.
On Friday, September 14, 2012, Lt. McGowan obtained the Montgomery County Adult Probation file of Andrew Thomas. The file revealed that Thomas listed his home address at 105 Grasmere Road, Bala Cynwyd, PA. Thomas was on [probation for a 2005 [fjorgery arrest by the Upper Merion Township Police Department.
On Friday, September 14, 2012, Montgomery County Detective Lieutenant James McGowan contacted the Pennsylvania State Police regárding ownership of the Beretta 9mm [p]istol, serial number BER593388. Lt. McGowan learned that the firearm was purchased on May 30, 2012, and that the firearm was registered to Michael Joseph Henry. Lt. McGowan also learned that the firearm was not reported stolen.
On Friday, September 14, 2012, Montgomery County Detectives Michael Begley and James Carbo interviewed Michael Joseph Henry. Henry told detectives that he was introduced to Andrew Thomas in April 2012 and that he started to “straw purchase” firearms for Thomas shortly thereafter. Henry said that, in exchange for the purchase of the firearms, Thomas would pay him a cash payment of $500.00 in addition to providing him with the cash for the firearm purchase. Henry detailed the “straw purchase” of [nine] firearms which were registered in his name and delivered directly to Andrew Thomas. Henry said that these “straw purchases” were made at In Site Firearms in Montgomery County and at French Creek Outfitters in Chester County. Henry told detectives that he was unaware of the current location of the firearms [,] which he last saw in the custody of Andrew Thomas.
Henry told detectives that he had discussed with Andrew Thomas the possibility of being stopped by the police. During the conversation, Thomas said that, if he was stopped by the police, he would run and that he wasn’t going back to jail. Andrew Thomas told Henry that he “wouldn’t go alive ” and that he “would shoot a cop[. ”]
On Saturday, September 15,2012, Lt. James McGowan obtained records from In Site Firearms [in Montgomery County]. The records noted the following purchases made by Michael Henry:
In Site Firearms:
April 19, 2012 Colt .45 ACP Serial # GCT34231
May 3, 2012 Colt .45 ACP Defender Serial # DR47133
May 30,2012 Beretta 92 FS Pistol Serial #
BER59388 (Homicide Weapon)
May 30, 2012 Remington 750 30-06 Rifle Serial # D8044546
June 21, 2012 Colt Mustang .380 ACP 7 3/4” Barrel Serial # PL73263
July 31, 2012 Stevens 200 Rifle 300 Winchester Serial # G602244
On Monday, September 17,2012, Montgomery County Detective James Carbo obtained records from French Creek Outfitters [in Chester County]. The records noted the following purchases made by Michael Henry:
French Creek Outfitters:
April 10, 2012 Beretta 92FS 9mm Pistol Serial # BER61887
April 14, 2012 Beretta 92FS INOX 9mm Pistol Serial # BER596082
May 5, 2012 FabriqueNationale 57 5.7X28 Pistol Serial #BER3 86231002
For each purchase Michael Henry made on behalf of Andrew Thomas, Michael Henry indicated on the Application/Record of Sale that he purchased the firearm for himself, and not another individual. Henry purchased these items for Andrew Thomas, making materially false statements on the Application/Record of Sale issued by the Pennsylvania State Police. Additionally, Michael Henry is not a licensed firearms dealer.

(Presentence Investigation Report 2-6 (emphasis added).) For the record, aside from the murder weapon, police never found any of the other eight guns that Henry illegally purchased for Thomas and transferred to him. (Sentencing Tr. 14-15 (testimony of Det. James Carbo).)

The PSI depicted Henry’s statement regarding the offenses as follows:

The defendant was introduced to Andrew Thomas by John Selser in April 2012. The defendant knew John from them both attending the Parkside Methadone Clinic in Philadelphia. The defendant said that he only had contact with Thomas when he purchased firearms for him. He admitted to purchasing all of the aforementioned firearms for Thomas listed in the affidavit of probable cause. He used the money, $500 per firearm purchase, to support his drug addiction. At the time, he was not using heroin due to being on methadone, but was using a lot of Xanax and Klonopin (benzodiazepines), which he said gave him a good high when used with methadone.
The defendant said that Andrew Thomas seemed really paranoid and made him uncomfortable. He tried to “get out” from buying him firearms but Thomas told him he was “in too” because he had already purchased firearms for him, which he took as a threat. The defendant said that Thomas never told him directly that he would kill a cop instead of going to jail, but rather Selser told the defendant that he said it to Selser.
The defendant said that he is sorry for the death of Officer Bradley Fox. He wishes to address the court at the time of sentencing.

(Presentence Investigation Report 6 (emphasis added).)

In addition to reviewing and taking into consideration the PSI, see generally Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988) (“A pre-sentence report constitutes the record and speaks for itself.... Having been folly informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed.”), this court at the sentencing hearing took testimony and evidence from the following sources: for the Commonwealth, testimony from investigating Detective James Carbo, from Officer Bradley Fox’s widow, mother, brother, and father, and from the Plymouth Township Chief of Police; and exhibits consisting of a written record of the Montgomery County Detectives’ interview with Henry, and photographs and a partial video of a ceremony in which President Barack Obama recognized Officer Fox along with other officers from around the country killed in the line of duty; and for defendant, testimony from his sister and from a therapist familiar with him; and exhibits consisting of photographs and letters written to him (by his daughter) or in his support. In addition, the parties stipulated that if called as a witness Detective John Finor, an expert in ballistics and identifying firearms, would testify that the Beretta pistol found next to Thomas’s body at the scene of the murder-suicide was the one Henry had purchased from In Site Firearms May 30, 2012, and transferred to Thomas later that day, and that the bullets and shell casings found at the scene were consistent with having been fired from that weapon. (Sentencing Tr. 6-8.)

As in the case of the P SI, the defense placed no obj ections on the record to any of the Commonwealth’s evidence; in fact, as the exhibits were introduced at the close of the Commonwealth’s case-in-chief, counsel stated, “The defense has received each one. We have no objection to them being entered into evidence.” (Sentencing Tr. 87:21-23.)

With the presentation of evidence concluded, the court entertained the closing arguments of counsel, and also received the parties’ memoranda of law on issues of sentencing merger. Defendant then exercised his right to allocution, apologizing to the Fox family for his actions, citing his troubled past and drug addiction, and invoking the mercy of the court. (Sentencing Tr. 146-50.)

The court recessed briefly to review the defense’s newly-presented legal memo and final exhibits, then returned to the courtroom to pronounce sentence, placing reasons for the sentence on the record in accordance with the Sentencing Code, 42 Pa.C.S. § 9721(b), the sentencing guidelines, 204 Pa. Code § 303.1(d), and the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 704(C)(2), as follows:

After reviewing the memorandum of law, I believe the doctrine of merger does not apply to the felony three and the misdemeanor three, the felony three’s and the misdemeanor three’s, in this particular case. Even if it did, I don’t think it would really upset my sentencing scheme to any great degree.
As we stated on the record, the standard range of the guidelines for the felony three is nine to sixteen months with an aggravated range of up to twenty-five months. The maximum the court can impose by law is three and a half to seven years.
Now, in exercising its discretion, the court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, [and] the gravity of the particular offense as it relates to the impact on the life of the victim and the community so long as the court states of record the factual basis and specifically reads which compels the court to go beyond the sentencing guidelines.
I’m first going to sentence him on I believe count six, which is the felony three, count fifteen, which is the misdemeanor two, and county twenty-three, which is the misdemeanor three; is that correct?
Because they are the three counts that relate directly to the gun that was used in the death of Officer Fox.
Now, it can be said that or it can be argued that the defendant never intended that this gun be used to kill an American hero, and make no mistake about it, Officer Fox is a true American hero. But my analysis takes into [account] the fact that people can be killed that aren’t heroes and every life is precious as far as I’m concerned when I impose sentence today.
On the felony three, count six, I’m imposing a sentence of three and a half to seven years in a State Correctional Institution to date from [October 10th].
On count fifteen, the misdemeanor two, I’m going to impose a sentence of one to two years consecutive to that imposed on count six.
And on count twenty-two, the misdemeanor three, I’m imposing a sentence of six months to a year consecutive to that imposed on count fifteen.
So [by] my calculations that’s sixty months right there. Sixty months, seven plus two, plus one, basically [is] five to ten years.
Now, when I get into the remaining sentences - oh, my reason for doing that, is in the facts of this case, I find that the defendant did, in fact, know that the guns would be used to kill by Andrew Thomas, that if he was ever stopped by the police. He knew Andrew Thomas was not authorized to have a gun. He was a convicted felon. He knew that Andrew Thomas said he would never go back to jail. He knew that Andrew Thomas said he would shoot a cop and Andrew Thomas did, in fact, shoot a cop. I think they are sufficient reasons to deviate from the guidelines.
But I think there are other reason[s] to deviate as well. I will get into that when I discuss the remaining bills of information involving the felony three’s and that would be counts one, two, three, four, five - I’ve already sentenced him on six - count seven, count eight[,] and count nine.
Now, an argument I suppose could have been made, gee, only one of those guns could have been used to kill the cop. We didn’t know that the other guns were going to kill a police officer. But the thing that struck me when I read through these statements, as I look to the statement presented in the evidence by the first witness, “Did you have a conversation with Andrew in his car about being stopped by the police?”
“ANSWER: Yes. He said that he was stopped by the police. He was running. He wasn’t going back to jail. He said he would not go alive and he would shoot a cop.”
Fine. I’ve already discussed those - - some of my reasons for deviating from the guidelines with the sentence I just imposed.
But if you look at the question or two questions above that, “Where did Andrew store the guns?”
“ANSWER: He wouldn’t tell me. He didn’t trust me. He was paranoid.”
Then I go to the PSI where here the defendant said - in the PSI, he said, Thomas never told him directly that he would kill a cop instead of going to jail; but rather the fellow that introduced him to Thomas said he would kill a cop.
Now, that’s an inconsistency with the statement that he gave to the detective. A lot of argument has been made about what an honest person the defendant is. Well, he did not tell the truth when he committed these crimes, and he either didn’t tell truth when he talked to the detective or he didn’t tell the truth when he was answering the questions in this PSI.
But the thing that jumped out at me was when he said that the defendant [sic], Andrew Thomas, seemed really paranoid and made him uncomfortable. The defendant said he tried to get out from buying his firearms but Thomas told him he was, quote, in, too, close quote, because he had already purchased firearms for him which he took as a threat.
Now, here is a chance that he has to get out of it, and he says he is trying to get out of it. He is not so controlled by the drug addiction anymore that he wants to continue selling him drugs [sic]. Regardless of that control, he wants to get out of it. But he won’t get out of it because he is afraid because he, too, might be arrested and he’s afraid of Andrew Thomas because he appears to be paranoid.
So that’s not a person who’s continuing to buy these guns because of this uncontrollable drug addiction. That’s the statement of a person who doesn’t care, doesn’t care about himself, doesn’t care about anybody else.
And when you consider the fact that Andrew Thomas said, I’m not going to be taken alive, I’ll shoot a cop, this defendant is supplying guns to someone who is suicidal and who he thinks is paranoid and he is arming this person to the teeth. And that’s what happens in these mass shootings. These people buy multiple guns. They kill lots of people and they wind up killing themselves or they keep shooting people until they g[e]t shot.
That didn’t happen in this case. But there’s certainly the possibility of that happening when you are selling to someone who says they’re not going to take me alive and I’m going to shoot a cop and you think he is paranoid. You are giving guns to a paranoid person who is suicidal. I find that to be an aggravating factor.
And as the District Attorney pointed out, he placed all of these guns into the underground market, which usually is frequented by criminals because they can’t buy guns and they usually do wind up in the commission of murders and robberies or burglaries or other crimes of violence.
So for those reasons, I am going to impose the following sentences: On count one, twenty-two months, fifteen days to seven years and that’s to run consecutive to count twenty-three.
Count two, three, four, five[,] seven, eight, nine, the same sentence that I just imposed on count one and all to run consecutive with one another. I compute that to be twenty to sixty-six years.
On the misdemeanor two’s, count one [sic], two .years probation commencing today; counts ten, eleven, twelve, thirteen, fourteen, and sixteen, they are all two years probation consecutive to one another and consecutive to count one [sic].
On the misdemeanor three, count seventeen, one year probation consecutive to that imposed on count sixteen.
On counts eighteen, nineteen, twenty, twenty-one, and twenty-three all consecutive one[-] year probations consecutive to one another and consecutive to that imposed on count seventeen.
All right. Thank you, gentlemen.

(Sentencing Tr. 150:19-158:17.)

Defendant, through the Public Defender, filed a post-sentence motion under Pa.R.Crim.P. 720(B) seeking to modify the aggregate sentence of total confinement of twenty to sixty-six years as harsh and excessive. (Post-Sentence Mot. para. 2.) The Commonwealth filed an answer opposing the motion.

On December 3, 2013, the court entered an order denying the motion to modify sentence. On December 5, 2013, we filed an amended order that complied with the requirements for the content of such an order set forth in Pa.R.Crim.P. 720(B)(4). This appeal followed.

Under the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b), we ordered the Public Defender to file a concise statement of errors complained of on appeal. The Public Defender responded by filing a 1925(b) statement raising ten separately-paragraphed claims about why the aggregate twenty- to sixty-six-year sentence of imprisonment imposed was harsh and excessive punishment for the specific offenses of which defendant was convicted and abused the court’s sentencing discretion. (Concise Statement para. l(a)-(j).) We will address these issues in the order they are presented. None provides grounds for disturbing the sentence on appeal.

The first claim raised in the 1925(b) statement is that,

a. The learned trial court abused its discretion when it permitted the Commonwealth, over defendant’s strenuous objections, to present victim impact and other testimony and physical evidence regarding the murder of Plymouth Township Police Officer Bradley Fox where defendant was not charged with any offence directly connected to Officer Fox’s murder, either as an accomplice, co-conspirator, or accessory before or after the fact, making such testimony and evidence irrelevant. A trial court’s consideration of irrelevant factors during sentencing constitutes both an abuse of discretion and a denial of due process of law.

(Concise Statement para. 1(a) (emphasis added).)

Our first response to this argument is that the “strenuous objections” we have highlighted in the passage quoted from the concise statement did not exist. We have reviewed the record of the sentencing hearing again in painstaking detail, and find, in accordance with our recollection, that defendant placed no objections whatsoever on the record to any of the evidence presented by the Commonwealth. (Sentencing Tr. 8-88.) The only contest defendant made to any of the Commonwealth’s evidence was to cross-examine one of the Commonwealth’s six witnesses, Detective Carbo. (Sentencing Tr. 15-38.) In particular, defendant made no challenge to the evidence concerning the circumstances of Officer Fox’s murder or the fact that defendant had illegally procured the murder weapon and transferred it to the perpetrator knowing that he might use it to “shoot a cop”; nor did defendant object on the record in any way to the testimony of the Commonwealth’s five witnesses (his family and chief of police) who testified exclusively about their experiences with Officer Fox, including his father’s testimony about the presidential-memorial service honoring fallen officers and the video and photos of that service the Commonwealth displayed. In fact, 1) the Public Defender explicitly allowed the court to enter the PSI into the record without objection; that document contained a detailed account of the circumstances surrounding the officer’s murder and of defendant’s acquainting with the murderer and supplying him with the murder weapon, as well as the Fox family’s victim-impact letters; 2) the Public Defender stipulated to the testimony of Detective Finor that the murder weapon found at the crime scene near the murderer’s body was the same Beretta pistol defendant had illegally bought for the murderer on May 30, 2012, and transferred to him the same day; and 3) and the Public Defender explicitly did not object to admission into evidence of the Commonwealth’s exhibits, which included the photos and brief video clip of the presidential memorial service introduced during the testimony of Officer Fox’s father, stating, “The defense has received each one. We have no objection to them being entered into evidence.” (Sentencing Tr. 87:21-23.)

Where a defendant fails to object specifically and contemporaneously to evidence admitted and considered by the sentencing court, he waives on appeal any claim the evidence was improperly admitted or considered. Cf. Commonwealth v. Sanchez, 82 A.3d 943, 968-72 (Pa. 2013) (finding waived on appeal several claims of error not raised by specific contemporaneous objection placed on the record at capital trial and sentencing proceedings), petition for cert. filed, No. 13-10660 (U.S. June 16,2014). A party may not revive on appeal an issue waived below by raising the issue in a concise statement of matters complained of on appeal. See, e.g., Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287-89 (Pa. Super. Ct. 2004) (en banc) (unanimous opinion) (holding defendant who fails to object timely and specifically in trial court cannot preserve the issue for appellate review by including the issue in a concise statement of matters complained of on appeal).

In support of the argument that we erred in allowing the Commonwealth “to present victim impact and other testimony and physical evidence regarding the murder of Plymouth Township Police Officer Bradley Fox” (Concise Statement para. 1(a)) the concise statement cites Commonwealth v. Smithton, 429 Pa. Super. 55, 631 A.2d 437 (1993), for the proposition that a sentencing court improperly heard victim-impact testimony from victims of offenses of which the defendant was acquitted, thereby abusing its discretion by hearing irrelevant evidence and requiring vacation of sentence and remand for resentencing; and Commonwealth v. Smart, 387 Pa. Super. 518, 564 A.2d 512 (1989), appeal dismissed, 527 Pa. 405, 592 A.2d 683 (1991), for the proposition that a sentencing court improperly considered more serious offenses of which the defendant had been acquitted, thereby creating the impression the defendant was being sentenced for offenses of which he was found not guilty, requiring vacation and remand. (Concise Statement para. 1(a).) Unlike in Smithton and Smart, no finder of fact acquitted defendant of any crimes related to the murder of Officer Fox, and therefore there are no necessary findings of fact inconsistent with the court’s consideration of the Officer’s death as an unfortunate but foreseeable consequence of defendant’s commissions of the crimes of which he was convicted.

We find more pertinent the argument made in the Commonwealth’s memorandum of law submitted before sentencing. The Commonwealth acknowledges there is little case lawrelating to sentencing forthe “strawpurchase” of firearms, although we note that the United States Supreme Court recently affirmed the conviction under the federal Gun Control Act of 1968, 18 U.S.C. § 922(g), of a straw purchaser of a firearm who falsely answered “yes” on a federal form to a question whether he was the actual purchaser of the gun when he was actually buying it for his uncle, even though the uncle could have legally purchased the weapon himself. Abramski v. United States, 134 S.Ct. 2259 (2014). The Commonwealth, however, analogizes persuasively to the case of Commonwealth v. Curran, 932 A.2d 103 (Pa. Super. Ct. 2007). There the Superior Court affirmed the maximum sentence allowed by law for furnishing alcohol to a minor for a woman with no prior convictions who bought numerous cases of beer for an underage friend. The friend provided the beer at a party, and another young man consumed some of the beer before getting behind the wheel of his car and driving it into a tree, killing two passengers. In justifying the maximum sentence for the crime of which the woman was convicted, the trial court analyzed extensively the chain of events the woman helped set in motion leading to the death of the two passengers, finding that tragic outcome foreseeable in the circumstances, even though she was not charged with any offenses directly stemming from the deaths. In affirming the maximum sentence, the Superior Court quoted extensively the sentencing court’s analysis to the effect that the foreseeability of a series of criminal acts by other parties made more likely by the defendant’s conduct warranted punishing her crime more severely. 932A.2d at 106-07.

We find Curran more apropos to defendant’s case than Smithton and Smart, in which the sentencing court considered crimes of which the defendant was acquitted in fashioning sentence. Even more so than in Curran, defendant had specific information about the dire consequences to which his crimes might lead - defendant bought guns for a man who seemed paranoid and said he would kill a cop - which he in fact did with one of the guns defendant supplied him. Would the law allow increased penalties for one who illegally obtained nuclear material and purveyed it to known terrorists who later used it to kill people with a “dirty bomb,” even though the seller had no direct involvement in or prior knowledge or intent with respect to the specific killing that occurred? We find the situation comparable, and believe the law does allow a sentencing judge to take into account the foreseeable consequences of the particular crimes being sentenced, even if those consequences constitute other crimes in which the person being sentenced had no active or intentional participation.

The concise statement next contends,

b. The learned trial court permitted a circus atmosphere to prevail at the sentencing proceeding by permitting the media to sit in the jury box and scheduling the proceeding for a special court room that could accommodate the large number of police and other law enforcement persons expected to be present, the-presence of both of which unduly influenced the trial court, either directly or subconsciously, to impose a harsher sentence, which was clearly evident when the law enforcement visitors broke into applause when the court finished imposing sentence[.]

(Concise Statement para. 1(b).)

As we have pointed out, defendant never placed on the record an objection to the courtroom in which the sentencing was held, nor did he preserve an objection to a “circus atmosphere” or the location where the spectators were seated. This issue is waived.

Moreover, the scheduling of sentencing in a courtroom larger than the one in which the undersigned regularly-presided was not an abuse of our discretion. Courtroom “A,” though larger than ours, was simply an available courtroom in the Montgomery County Courthouse in which we, as well as most other judges of the Court, had commonly conducted proceedings when circumstances called for it.

Had we, having been alerted to the likelihood of a large crowd at sentencing, allowed it to go on in a smaller venue, no doubt the courtroom would have been packed to the gills and spilling into the surrounding halls and vestibules with press, police officers, and members of the general public, not to mention the numerous witnesses, supporting staff of the parties, and personnel of the Court necessary to the proceeding. With too many people both inside and outside the courtroom for the Court and Sheriff’s Department to exert control over events, a true “circus atmosphere” could have broken out. The spectators who did attend the proceeding in the larger courtroom procured to accommodate them were orderly and caused no disruption in the proceedings whatsoever. Although some of them stood, the more spacious courtroom was adequate to contain the entire crowd comfortably, without placing any undue pressure on the parties or other participants involved in the proceedings. The number or identity of people within the physical constraints of the courtroom did not influence the Court’s sentencing decision. The claim that the Court erred in rescheduling sentencing for a courtroom that could contain the expected crowd is meritless.

The next two issues in the concise statement raise matters that this Court allegedly “totally discounted” or “ignored,” and as our response to them is the same, we shall address them together:

c. The learned trial court violated the mandate of 42 Pa.C.S. § 9721(b) where it totally discounted the uncontested evidence of defendant’s substantial cooperation with law enforcement following his identification to track down the purchasers of the firearms sold by defendant;
d. The learned trial court ignored the fact that [defendant] accepted complete responsibility for his actions; cooperated] with law enforcement to a considerable] degree; waiv[ed] his preliminary hearing; [did] not fil[e] any pre-trial motions; pled open to all charges; and even offered to meet with the family of Officer Fox to afford the family the ability to privately express any feelings that they may have had and to assist them in achieving some degree of closure^]

(Concise Statement para. l(c)-(d).)

These overlapping, stream-of-consciousness claims misstate the case; we neither “totally discounted” nor “ignored” any evidence, whether uncontested or not, although we certainly disagree with the statement’s characterization of some of the evidence. For example, the assertion that defendant “accepted complete responsibility for his actions” is a biased rendition of the facts with which the Court did not concur, based on all the evidence presented. Yes, defendant cooperated with law enforcement to some degree to attempt to “track down” the numerous guns he had recklessly thrust into the black market in the hands of a man who was admittedly “paranoid” and inclinedto “shoot a cop.” But he did so only after this man had tragically fulfilled his prophecy and killed Officer Fox, and after detectives discovered through their own devices defendant was the one who had purchased the murder weapon on the murderer’s behalf. Even after defendant suspected, for good reason, the man was “paranoid” and a potential “cop killer,” defendant did not come forward with the fact that he had supplied the man with numerous guns, enough to go on a rampage and kill untold numbers of people. No, defendant refused to “get out” of buying weapons for the man, despite supposed reservations about doing so, because the man told defendant he was “in too,” hence raising the specter that defendant himself would be held criminally liable should be refuse to accede to the future killer’s irrational wishes. Defendant did not own up to his culpability until after Officer Fox was dead, defendant was discovered as the illicit supplier of the murder weapon, and the eight other firearms disappeared to who knows where, perhaps into the clutches of persons planning other acts of mayhem against society.

In countering assertions that we “discounted” or “ignored” factors that defendant would have preferred we give heightened importance to in sentencing him, we again hark back to the words of the Pennsylvania Supreme Court in Devers, a seminal decision on the duties of the Pennsylvania sentencing jurist:

In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or' any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.

519 Pa. at 102, 546 A.2d 18.

defendant next contends we abused our discretion in sentencing because, “defendant had a prior record score of zero (0) and his only prior offence was for driving under the influence (DUI).” (Concise Statement para. 1(e).) We were aware of defendant’s prior record and prior record score, as they were reflected on the forms prepared for his case under the Sentencing Guidelines. “It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Devers, 519 Pa. at 102, 546 A.2d at 18.

In Curran, the defendant who provided alcohol to a minor had no prior record, not even for the uncharged prior offenses of having done so on previous occasions. The sentencing court, however, found that because of those previous instances of having done the same thing, albeit in circumstances that ended up wreaking less harm, her spotless record had a “glaring exception,” Curran, 932 A.2d at 103, and imposed on her for the crime of which she was convicted the maximum sentence allowed by law, which the Superior Court affirmed.

The next two claims again posit matters we allegedly “discounted and ignored,” namely “defendant’s [twenty-year] history of drug addiction and defendant’s repeated, voluntarily seeking treatment for his drug addiction” (Concise Statement para. 1(f)) and “defendant’s significant traumatic family history in that, by age [fourteen], he assumed the role of a father figure for his family and had been subject to physical abuse by his father, and forced to leave school at the age of [sixteen] to become the breadwinner for his family” (Concise Statement para. 1(g)). We were aware of these factors in sentencing defendant. “[SJentencers are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. ... It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Devers, 519 Pa. at 102, 546 A.2d at 18.

Defendant next claims,

h. The learned trial court violated the sentencing norms and requirements of the Sentencing Code by counting the number of firearms involved in defendant’s offences as an aggravating factor where each firearm involved was the subject of a separate and distinct set of charges to which defendant had pled guilty, thereby counting said offences against defendant twice[.]

(Concise Statement para. 1(h).)

To argue that a sentencing court may not consider the repeated and serial nature or sheer number of offenses being sentenced as an aggravating factor is not itself in keeping with the norms and requirements of the Sentencing Code. A prime example is the death-penalty provision of the Code, 42 Pa.C.S. § 9711, which allows, even mandates, consideration of other offenses, charged or uncharged, committed either prior to or together with the offense being sentenced, as factors elevating the penalty to be imposed from life in prison to death. See, e.g., 42 Pa.C.S. § 9711(d)(6)-(7), (9)-(14). Closer to home, Pennsylvania’s Uniform Firearms Act itself, as amended in 2012, effective after defendant committed his offenses, requires that the penalty for a second or subsequent violation of section 6111 (of which defendant was convicted sixteen times) be raised to a mandatory minimum five years in prison. 18 Pa.C.S. § 6111(h)(1). Though the sentencing procedure reflected in this revised provision of the Uniform Firearms Act may have fallen into question on other grounds after Alleyne v. United States, 133 S. Ct. 2151 (2013) (majority opinion as to Parts I, III-B, III-C, and IV), our courts in interpreting and applying similar mandatory minimum statutes in Pennsylvania have held that each serial offense of which a defendant “has been convicted” (found guilty) and that is being sentenced at the same time constitutes a “second or subsequent” offense, so that no offense is “prior” to another and all are “second or subsequent” to each other, each ergo being subject to an enhanced mandatory minimum sentence and thus, in a way, being “counted twice.” See, e.g., Commonwealth v. Rush, 959 A.2d 945 (Pa. Super. Ct. 2008) (applying mandatory minimum sentences for second or subsequent offenses under Drug Trafficking Sentencing Law, 18 Pa.C.S. § 7508, and concluding all offenses sentenced at the same proceeding are “second or subsequent” to each other and bear the enhanced mandatory minimum for a second or subsequent offense); see also Commonwealth v. Vasquez, 562 Pa. 120, 753 A.2d 807 (2000) (holding enhanced mandatory sentences for second or subsequent drug offenses apply to offenses sentenced at the same proceeding). Because the legislature has provided, in many mandatory minimum sentencing statutes, including those under the Uniform Firearms Act, that two or more offenses sentenced together may each be considered to enhance the penalty for the other, defendant’s argument that this Court erred in considering each of the separate offenses being sentenced as an aggravating factor in imposing sentence for the others is, as the appellate courts have written to define the standard for granting allowance of appeal of the discretionary aspects of sentencing under the Sentencing Code, 42 Pa.C.S. § 9781(b), “contrary to the fundamental norms which underlie the sentencing process.” Commonwealth v. Raybuck, 915 A.2d 125, 127 (Pa.Super.Ct. 2006) (McCaffery, J.).

Defendant’s concise statement next maintains,

i. The learned trial court improperly focused on the death of Officer Fox, who was a decorated veteran of the United States Marine Corps and a dedicated police officer, when imposing sentence with respect to the first portion of sentencing where defendant’s conduct only indirectly was connected to the death of Officer Fox and defendant was not charged with any offence directly relating to the murder of Officer Fox.

(Concise Statement para. l(i).) We perceive this argument to be a reformulation of the first argument raised in the concise statement and addressed above. But for our discussion of the first issue’s having been waived by defendant’s failure to object to the Court’s admitting the Commonwealth’s evidence surrounding the death of Officer Fox, we rely on our discussion of the first argument to dispose of this one as well.

Finally, defendant claims,

j. The learned trial court ignored the fact that a period of more than [three] months had elapsed from the time defendant sold the Beretta pistol to Andrew Thomas and when the confrontation between Thomas and Officer Fox occurred that resulted in Officer Fox’s death.

(Concise Statement para. l(j).) As we said with respect to other issues above, the Court did no such thing as “ignore” the time period between defendant’s transfer of the Beretta to Thomas and Thomas’s cowardly murder of Officer Fox. Moreover, rather than militate against the Court’s sentence and for sentencing leniency, this argument may militate against such favorable consideration. Only time will tell, or it may never tell, whether the other weapons defendant sold Thomas will end up as the tools of other felons in the perpetration of other horrific acts. Whatever the unknown future consequences of his actions, defendant will be left to contemplate this particular one. We will not be adding to his sentence if other guns he illegally bought and sold end up in the news as instrumentalities of future tragedies, with new victims, new crimes, and new unwitting accomplices after the fact. The damage is already done; we tried to account for all the relevant factors raised in imposing an aggregate sentence of imprisonment we deemed just and fitting under the circumstances.

We did not abuse our discretion in sentencing defendant to an aggregate term of imprisonment of twenty to sixty-six years for the twenty-three crimes he committed in buying and selling nine firearms, including the murder weapon, to a known prospective~and as it turns out eventual — killer of a police officer, nor in considering that later crime as a foreseeable possible outcome of defendant’s actions. We respectfully suggest that the honorable Superior Court should affirm the judgment of sentence.


source: Caselaw Access Project

author: RAU, J.

license: Public Domain

text:
    Carl v. Noonan

      Edwin P. Smith, for appellant.

      Gregory Robert Noonan, for appellee.
    July 22, 2014
   RAU, J.

I. INTRODUCTION

Plaintiff-appellant Thomas Carl appeals the grant of summary judgment in this legal-malpractice action where on the day of the scheduled trial the trial judge precluded plaintiff-appellant’s expert evidence based on defendants-appellees’ assertion that they had never been properly noticed of plaintiff-appellant’s expert witness, nor received the expert’s report or qualifications. Plaintiff-appellant Thomas Carl filed a complaint against defendants-appellees Gregory R. Noonan and Walfish and Noonan, LLC (hereinafter “appellee Noonan”), alleging professional negligence and breach of contract in connection with their agreement to represent him in his federal employment-discrimination and other related claims against his former employer. His federal claims were dismissed as being time-barred.'

Shortly before jury selection in this legal malpractice action, alleging claims of negligence and breach of contract, appellee Noonan submitted a combined motion in limine and motion for summary judgment, arguing that appellant Carl could not make out a prima facie case of legal malpractice because he lacked expert evidence. The trial judge precluded appellant Carl’s use of expert testimony, even though appellant Carl did have expert evidence in the form of deposition testimony and had notified appellee Noonan of it. Appellant Carl filed this appeal, contending that the trial court erred by precluding his expert evidence, by considering the motion after the deadline, and by not allowing a response to the motion. The trial judge who handled this matter retired from the bench prior to writing an opinion so it has fallen to this judge to write an opinion in his stead.

Although appellant Carl proffered his expert testimony in a nontraditional manner, it nonetheless did meet legal requirements and summary judgment should not have been granted against him. Accordingly, this judge recommends that the Superior Court remand this case for a trial on the merits.

II. FACTUAL AND PROCEDURAL

BACKGROUND

Appellant Thomas Carl, who is of Irish descent, retained appellee Noonan to represent him in a lawsuit against his former employer, Western-Southern Life Insurance Company, for discrimination “based on religion, national origin, disability, ancestry, and ethnicity” in violation of the Civil Rights Act of 1964 and other laws. (Compl. ¶2.); Carl v. W.-S. Life Ins. Co., 2010 WL 3860432 at n.l, *2 (E.D. Pa. Sept. 30,2010). Appellant Carl alleged that in his sales representative position, he was discriminated against and harassed by his supervisor until he was constructively discharged. Id. at *1. The federal court dismissed all claims for failure to state a claim upon which relief could be granted, in part because the claims were time-barred. Id. at *1, *5.

Appellant Carl then brought this legal malpractice case against appellee Noonan. Appellant Carl alleged that the Equal Employment Opportunity Commission (EEOC) did not mail him his “right to sue” letter at his correct address, and thus he did not receive his “right to sue” letter, but that appellee Noonan did receive the letter at the firm’s address. (Compl. ¶¶ 4-6.) Appellant Carl alleged that appellee Noonan failed to notify him when he received a “right to sue” letter in the employment-discrimination action and failed to file a timely complaint in federal court on his behalf. Appellant Carl alleged that Appellee Noonan’s errors led to his claims being time-barred. (Compl. ¶¶7-8.)

Appellees Gregory R. Noonan and his firm, Walfish and Noonan, LLC, did not have professional liability insurance, and thus represented themselves throughout the course of this case. Appellee Noonan was not disbarred until after the trial judge dismissed the claims against him and his firm.

During discovery in this case, appellant Carl served appellee Noonan with a Notice of Oral Deposition of John McAuliffe, Jr., Esq., an attorney who was to be appellant Carl’s expert witness, to take place on March 13, 2012, stating:

“The scope and purpose of this deposition is to substantially aid the plaintiff in the preparation and trial of this case as provided for in the rules and to perpetuate the testimony of any aged infirm or going [sic] witness, party, physician, expert or records which may in the future be destroyed or otherwise unavailable.”

(See letter, court ex. A.) Appellee Noonan did not appear at the deposition nor did he send any counsel in his stead. (Mot. tr. vol. 1 14:7-8, Jul. 2, 2013.) (See transcript, court ex. B.) Appellant Carl advised appellee Noonan in a letter dated March 15, 2012, two days after the deposition, that Mr. McAuliffe’s testimony would be used as appellant’s expert testimony: “Be advised that the testimony provided by Mr. McAuliffe will be used as our expert testimony in this case and his qualifications are set forth in that deposition.” (See letter, court ex. C.) Appellee Noonan acknowledged receiving that letter. (Court ex. B; mot. tr. vol. 1 17:22-18:2.) At deposition, Mr. McAuliffe testified to his experience as an attorney and specifically to his familiarity with federal discrimination law. (PI. mot. for recons. ex. B, McAuliffe dep. 5:9-6:2, Mar. 13, 2012.) (See deposition, court ex. D.) Mr. McAuliffe further testified that appellee Noonan’s failure to advise appellant Carl of the EEOC’s decision fell below the standard of care for an attorney, and also that his failure to file a state administrative claim on appellant Carl’s behalf fell below the standard of care. (Court ex. D; pi. mot. for recons. ex. B, McAuliffe dep. 7:11-20, Mar. 13,2012.) Mr. McAuliffe testified that appellant Carl could have been successful on the substance of his discrimination claims but for the statute of limitations bar that appellee Noonan caused. (Court ex. D; pi. mot. for recons. ex. B, McAuliffe dep. 8:18-10:1, Mar. 13,2012.)

Over a year passed after the deposition and appellant Carl’s notice to appellee Noonan of his plans to use Mr. McAuliffe as his expert. Then, on June 27, 2013, five days before jury selection was set to take place, appellee Noonan filed a combined motion in limine and motion for summary judgment arguing that appellant Carl did not submit either the curriculum vitae of Mr. McAuliffe or his expert report, in conflict with the Case Management Order (“CMO”), which called for appellant Carl to submit those to the defense no later than September 4, 2012. (See CMO, Court Ex. E.) The same CMO called for all pretrial motions to be filed no later than October 1, 2012. Appellee Noonan’s motion also stated that Mr. McAuliffe served as appellant Carl’s attorney in his federal employment discrimination action and argued that because Mr. McAuliffe was previously appellant Carl’s attorney, he was biased because he would try to protect himself.

The trial judge scheduled oral argument on July 2, 2013, the day that trial was scheduled to begin. Appellee Noonan argued that Mr. McAuliffe was identified only as a fact witness, (Court ex. B; mot. tr. vol. 1 13:23-24, Jul. 2, 2013), that Mr. McAuliffe was identified as an expert only months after the deposition (Court ex. B; mot. tr. vol. 1 14:8-10, Jul. 2, 2013), that appellee Noonan never received his curriculum vitae or expert report (Court ex. B; mot. tr. vol. 1 14:10-12, Jul. 2, 2013), that Mr. McAuliffe would not be present at trial and so there would be no opportunity to cross-examine him (Court ex. B; mot. tr. vol. 1 14:12-13; 20-21, Jul. 2, 2013), and that the defense never knew Mr. McAuliffe would be used as an expert (Court ex. B; mot. tr. vol. 1 14:14-17, Jul. 2, 2013).

Appellant Carl argued that he had given notice that Mr. McAuliffe would serve as his expert and that the deposition transcript served as the report and description of qualifications. (Court ex. B; mot. tr. vol. 1 21:9-12, Jul. 2, 2013.) Appellee Noonan acknowledged during oral argument on July 2, 2013 that the March 15, 2012, letter, sent nearly 16 months earlier, made him “aware” that appellant was “going to use Mr. McAuliffe as their expert witness for malpractice” in the case. (Court ex. B; mot. tr. vol. 1 17:22-18:2.) Appellant Carl wrote in the letter that Mr. McAuliffe’s qualifications and testimony had been covered in the deposition that appellee Noonan had been notified about and chosen not to attend. (See letter, court ex. C.) Mr. McAuliffe’s deposition had been attached to the settlement conference memorandum that named Mr. McAuliffe as “plaintiff’s expert.” (See plaintiff’s settlement conference memorandum, court ex. G.)

At oral argument, the trial judge observed Mr. McAuliffe’s absence from the courtroom. Appellant Carl’s counsel explained that Mr. McAuliffe could not attend on the day of trial because of life-threatening heart problems and stated that he had forwarded a letter from Mr. McAuliffe’s physician to defense counsel to that effect the previous week, on June 25, 2013. (Court ex. B; mot. tr. vol. 1 22:5-20, Jul. 2, 2013.) The trial judge said he also had a physical copy of the doctor’s letter. (Court ex. B; mot. tr. vol. 1 22:15-16, Jul. 2, 2013.)

Nevertheless, the trial judge granted appellee Noonan’s motion that had asserted that they had never been properly noticed of appellant Carl’s expert witness nor received the expert’s report or qualifications. With appellant Carl’s expert precluded, the case was dismissed. The same day, appellant Carl filed a written motion for reconsideration of his expert’s preclusion. The motion was denied.

Appellant Carl appealed. Appellant Carl itemized seven matters complained of on appeal in his 1925(b) statement, which are summarized as follows:

(1) The court erred in granting the motion precluding the expert as there was no legal basis because appellant complied with the rules regarding disclosure of experts (items 3 and 6);
(2) the court erred in considering the motion that was filed late and in violation of the CMO’s deadlines (items 1 and 5);
(3) the court erred in failing to allow appellant Carl to answer the motion (items 2 and 4); and
(4) the “court erred, if grant of the motions was based upon the content of the depositions, since defendants, by not lodging objections to questions at the depositions, waived any objection to the form of the question” (item 7).

In February 2014, this judge ordered briefs from both sides since she had not been the trial judge and wanted to give the parties the opportunity to focus her attention on specific appellate issues and explain any relevant facts or procedural history. The parties accordingly briefed the issues.

III. LEGAL DISCUSSION

The Superior Court has outlined its standard of review of a grant of summary judgment:

“When reviewing a grant of a motion for summary judgment, our review is plenary. We will not disturb the trial court’s order absent an error of law or abuse of discretion. Where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.”

Long v. Ostroff, 854 A.2d 524, 527-28 (Pa. Super. Ct. 2004) (internal citations and quotations omitted).

A. Expert Evidence

Appellee Noonan claimed summary judgment should be granted because appellant Carl lacked expert evidence, having not timely identified Mr. McAuliffe an expert witness or provided the written curriculum vitae and a report of Mr. McAuliffe. He also argued that Mr. McAuliffe would be biased because he served as appellant Carl’s counsel after appellee Noonan.

In a case that presented strikingly similar circumstances, the Superior Court held that notice of the kind provided in this case, and the use of a deposition as an expert report, are indeed sufficient. Jistarri v. Nappi, 549 A.2d 210, 217 (Pa. Super. Ct. 1988). In Jistarri, the Superior Court discussed Rule 4003.5’s provisions governing discovery of expert testimony:

“Rule 4003.5 provides that a party may, through interrogatories, require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to have the expert state, either in answers to the interrogatories or in a separate report, the substance of the facts and opinions to which he or she is expected to testify and a summary of the grounds for each opinion.”

Id. at217(Pa. Super. Ct. 1988).In this case, the record does not show that appellee Noonan ever sought identification of experts through interrogatories, although the Case Management Order (CMO) did impose a deadline by which appellant Carl had to identify, and submit curriculum vitae and expert reports of, all expert witnesses who were meant to testify at trial.

Appellant Carl did identify the expert witness, both in the notice of deposition that mentioned expert evidence and in the letter sent to appellee Noonan two days after the deposition — months before the CMO deadline, and over a year before appellee Noonan’s motion. In the letter, appellant Carl advised that the deposition, a transcript of which appellee Noonan was free to obtain, contained Mr. McAuliffe’s qualifications and expert evidence — in other words, the substance of a curriculum vitae and expert report, as called for by the CMO. Appellee Noonan acknowledged receiving this letter. (Court ex. B; mot. tr. vol. 1 17:22-18:2.) Mr. McAuliffe was also named as an expert in plaintiffs settlement conference memorandum.

Similarly, in Jistarri, although “the notification procedure ... was hardly ideal,” defendants were not denied notice that the person in question would be called as an expert witness. Id. In Jistarri, plaintiff’s counsel informed defendant’s counsel by letter almost five months prior to trial that a doctor would be offered as an expert witness “and that his opinion testimony would be that which was contained in his deposition.” Id. In this case, appellee Noonan was on notice that Mr. McAuliffe would be appellant Carl’s expert witness for over a year before trial.

The Superior Court in Jistarri explained its reasoning in light of the purpose of the rule on discovery of expert testimony:

“The purpose of Rule 4003.5 is to prevent the unfairness that would occur if one party were unable to counter the expertise of a surprise witness produced at the last minute by the opposing party. The notice provided by appellant in the present case was sufficient to allow appellees to counter the opinion testimony, in whatever form it might be offered, of Dr. Codario.”

Id. (internal citation omitted). Here, similarly, there was no surprise. Appellant Carl did not offer the expert at the last minute, and there would have been no unfairness to appellee Noonan.

Since deciding Jistarri, the Superior Court has provided more guidance as to what would constitute unfair surprise. “Adequate notice to the defendants was not given where plaintiffs’ counsel waited until the day trial commenced to furnish counsel for the defendants a written copy of the expert’s report. We have held that the giving of five months notice that a person will be called as an expert is adequate.” Freeman v. Maple Point, Inc., 574 A.2d 684, 689 (Pa. Super. Ct. 1990) (citing Jistarri, 549 A.2d at 217). Thus, the Superior Court has clearly held that the notice of expert testimony provided in Jistarri — almost identical to the notice provided in this case, in the form of a letter sent long before trial that said that the deposition itself would serve in lieu of a formal report — did not fail to comport with the rules and was sufficient.

Rule 4003.5 provides for fairness and the prevention of last-minute surprise. In this case, the only thing that occurred at the last minute was appellee Noonan’s untimely motion for summary judgment claiming lack of notice of the expert. Appellee Noonan admitted he was aware that appellant Carl had identified Mr. McAuliffe as his expert over a year before trial yet he never objected until he filed his combined motion for summary judgment and motion in limine just five days before trial.

As the Supreme Court of Pennsylvania has explained:

‘’’Abuse of discretion’ is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that appellate court is of opinion that there was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment — one is that clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law.”

Com, v. Powell, 590 A.2d 1240, 1244 n.8 (Pa. 1991) (quoting Black’s Law Dictionary (5th Ed. 1979)). Dismissal of this case was inconsistent with Jistarri and Freeman, and so the case should be remanded for trial on the merits.

Furthermore, this case was dismissed on the grounds that appellant Carl failed to conform to discovery rules for expert evidence. But appellant Carl did comply with the rules, albeit in a nontraditional way. When dismissal occurs owing to a discovery violation, it should occur only in rare, severe circumstances. Pennsylvania Rule of Civil Procedure 4019 allows for dismissal as a discovery sanction. Stewart v. Rossi, 681 A.2d 214, 217 (Pa. Super. Ct. 1996). “However, since dismissal is the most severe sanction, it should be imposed only in extreme circumstances, and a trial court is required to balance the equities carefully and dismiss only where the violation of the discovery rules is willful and the opposing party has been prejudiced.” Id.

Appellee Noonan also argued summary judgment should be granted due to Mr. McAuliffe’s purported bias. But any bias would affect only the weight of his testimony, not its admissibility: “The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995) (emphasis in original).

J During oral argument but not in his written motion, appellee Noonan also claimed summary judgment should be granted because Mr. McAuliffe was absent from the courtroom on the day of trial. Mr. McAuliffe was absent from the courtroom for apparent medical reasons supported by a physician’s letter. Although it is unknown whether this last-minute argument about Mr. McAuliffe’s unavailability on the day of trial played any role in the trial judge’s decision to grant summary judgment, the rules require a hearing to determine if deposition testimony can substitute for the unavailable witness rather than excluding the witness’ testimony. Pa.RC.P. 4020(a)(3) (c); Pa.R.E. 804(b)(1). Alternatively, the trial judge could have continued the trial until Mr. McAuliffe was medically able to testify. Consequently, if the court’s dismissal of the action was on this basis, it was inappropriate.

If a court finds “that the witness is unable to attend or testify because of...sickness,” deposition testimony can be substituted for in-person testimony. Evidence rules permit prior deposition testimony to be used where the witness is unavailable for trial “if the party against whom the testimony is now offered... had an adequate opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Pa.R.E. 804(b)(1). In this case, appellee Noonan received notice of Mr. McAuliffe’s deposition but chose not to attend, did not lodge any objections between the time the deposition was taken and the deadline for pretrial motions even after appellant Carl notified him that he would use it as expert testimony, and waited until just five days before trial to object in the form of the motion.

There is striking factual similarity between this case and a case the Superior Court recently decided. Jones v. Mercy Suburban Hospital (1214 EDA 2013) (Jan. 31, 2014) (unpublished opinion, not binding precedent but persuasive authority, see Super. Ct. I.O.P. 65.37). In a unanimous opinion, the Superior Court held that the trial court abused its discretion in its “decision to dismiss this case on a technicality [,] placing] justice second to arbitrary compliance with procedural rules.” Jones at 9. In Jones, the trial court dismissed the case on the eve of trial when, owing to a medical emergency, plaintiff could not proceed with trial, her experts were unavailable, and she timely requested a continuance, Id. at 5. The Superior Court observed that while delay can be costly, it is “not a reason to deprive either party of its day in court.” Id. at 8. Here, similarly, the action was dismissed when a medical emergency prevented appellant Carl’s expert from appearing at trial. Instead of holding a hearing to determine Mr. McAuliffe’s availability and the propriety of reading his deposition into the record or in the alternative granting a continuance, the trial judge dismissed the case. For the reasons given, the equities did not support this severe result of dismissal. Stewart v. Rossi, 681 A.2d 214, 217 (Pa. Super. Ct. 1996).

B. Case Management Deadlines

The CMO called for pretrial motions to be filed no later than October 1, 2012. The court’s order of January 7, 2013, called for motions in limine to be filed no later than 30 days .before jury selection. Although appellant Carl had timely notified appellee Noonan of his intention to use Mr. McAuliffe as his expert and provided his report and credentials through his deposition, appellee Noonan filed his combined motion in limine and summary judgment motion late. (“Defendants’ (A) motion in limine to limit (i) the introduction of any expert opinion evidence, (ii) the introduction of any testimony of John McAuliffe, Esquire, factual or otherwise, and (B) motion for summary judgment.”) In other words, appellee Noonan’s motion, which argued that appellant Carl had missed deadlines, was itself filed far beyond court-ordered deadlines. Appellee Noonan filed his motion just a few days before trial, on June 27,2013, well after the 30-day deadline. The late motion sought summary judgment because, appellee Noonan argued, appellant Carl could not prove his case without Mr. McAuliffe’s expert evidence, which he argued should be excluded.

In considering late filings “there must be no showing of prejudice as a result of the failure to comply strictly with the rules, and second, there must be a showing of good cause.” White v. Owens-Coming Fiberglas, Corp., 668 A.2d 136, 141 (Pa. Super. Ct. 1995). In White, it was held not to be error on the trial court’s part to consider a motion for summary judgment late (after the commencement of trial), because there was good cause and no prejudice resulted. Id. at 141-42.

In this case, by contrast, appellee Noonan showed no cause for failing to file the motion for summary judgment on time, let alone good cause. Appellee Noonan sought to disguise the motion for summary judgment as a motion in limine, to sidestep its being filed too late. However, the title of the motion itself concedes that it is a “motion for summary judgment,” and one filed almost nine months after deadline. Besides, even if the motion had been a motion in limine it was also late. The court’s January 7, 2013, pretrial order required motions in limine to be filed no later than 30 days before jury selection and it was filed 5 days before the date-certain trial date.

Appellee Noonan was aware for over a year before trial that Mr. McAuliffe was slated to provide expert evidence, and that his deposition served as his expert report. Appellee Noonan provided no reasons that would amount to just cause why he waited until just five days before trial to try to disqualify Mr. McAuliffe from providing such evidence. Furthermore, appellant Carl suffered the greatest prejudice a litigant can experience: his case was not heard on the merits. The law requires that the rules for case-management deadlines be strictly followed except where there is good cause for, and an absence of prejudice in, construing them more leniently. Here, there was no good cause for appellee Noonan’s late filing of the motion, and severe prejudice resulted to appellant Carl. Thus, considering appellee’s late-filed motion with such prejudicial consequences to appellant Carl was not in accordance with the law.

C. Lack of Opportunity to Respond

Appellant Carl says that the trial judge erred in deciding appellee Noonan’s motion “without providing an opportunity for plaintiff to file answers thereto,” and by failing to allow appellant “to file answers as was contained in his motion for reconsideration.” Appellant Carl is correct: had appellant Carl been allowed to file a written answer to appellee Noonan’s motion, he could have shown the trial judge that although he had provided notice of his expert and made available his qualifications and testimony in an atypical way, it was nonetheless sufficient under the law. Jistarri v. Nappi, 549 A.2d 210 (Pa. Super. Ct. 1988).

D. Waiver of Objections Related to Deposition

Finally, appellant Carl says the trial judge committed error “if grant of the motions was based upon the content of the depositions, since defendants, by not lodging objections to questions at said depositions, waived any objection to the form of the question.” Any objections to the notice, procedures or questions at the deposition were not made during or shortly after the deposition and were waived long ago. Pa.R.C.P. 4016 & 4017. Here, besides being noticed ahead of the deposition, appellee Noonan has acknowledged being informed by letter shortly after the deposition of appellant Carl’s intention to use Mr. McAuliffe as an expert. He also acknowledged that the letter communicated appellant Carl’s intention to use the deposition as the expert report and curriculum vitae. Appellee Noonan chose not to object to Mr. McAuliffe’s serving as an expert “soon” after this clear notice, instead waiting over a year.

To the extent that there is any issue about the questions asked of Mr. McAuliffe at his deposition or anything else that occurred relating to the deposition, appellee Noonan waived any objection because he was properly noticed of the deposition but chose neither to attend nor to object to any questions asked. Pa.R.C.P. 4016 & 4017; Pa.R.E. 804(b)(1).

IV. CONCLUSION

Appellant Carl’s action was dismissed because the trial judge concluded, as argued in appellee Noonan’s motion, that appellant Carl had provided inadequate notice of the expert evidence he intended to put forward at trial and failed to supply the expert’s curriculum vitae and report. The Superior Court has held that notice essentially identical to the notice provided in this case — a letter, months before trial, declaring that the deposition testimony would serve as the expert’s report — is adequate. Jistarri v. Nappi, 549 A.2d 210 (Pa. Super. Ct. 1988). Because appellant Carl complied with the law in providing sufficient notice of Mr. McAuliffe’s serving as an expert witness and his report and qualifications being available through his deposition testimony, the law required that appellant be permitted to have Mr. McAuliffe serve as his expert witness. Dismissing the case therefore did not comport with the law. This court consequently recommends that the grant of summary judgment be reversed and this action remanded for a trial on the merits.

      . Judge Gary DiVito was the trial judge in this case. The appeal was filed on July 29,2013. Judge DiVito retired from this court in early 2014 prior to writing an opinion in this case. To assist the Superior Court in its review, it fell to this judge to submit an opinion in judge DiVito’s stead by reviewing the facts in the record and the law. This judge is obviously limited to some degree in knowing precisely judge DiVito’s mental impressions or reasoning when he made his decisions so in that regard this opinion is necessarily incomplete.

      . Appellee Noonan was arrested on drug charges in December 2013. Carolyn Davis, Monteo Lawyer Waives Preliminary Hearing on’ Drug Charges, philly.com, http://articles.philly. com/2014-01-05/news/45862144_l_preliminary-hearing-drug-charges-district-judge-margaret-hunsicker (last visited Mar. 28, 2014). Appellee Noonan pied guilty in state court on April 7,2014, to selling oxycodone, criminal use of a communication facility, and dealing in the proceeds of illegal activity. Com, v. Noonan, CP-46-CR-0000130-2014. See also Caroivn Davis, Noonan Pleads Guilty to Selling Oxycodone, philly.com, http://articles.phiiiy.com/2014-0409/news/48974618_l_ oxycodone-carpenter-gregory-noonan (last visited May 30,2014). Appellee Noonan has also been disbarred. Carolyn Davis, Monteo’s Gregory Noonan Resigns from the Bar. PHILLy.com, http://www.philiy.com/philly/news/ iocal/20140307_Montco_s_Gregory_Noonan_resigns._from_the_ bar. html (last visited Apr. 1, 2014). He submitted his statement of resignation from the baron January 10, 2014, asserting that his resignation stemmed both from the criminal drug trafficking charges he faced and from his having dishonestly attempted to defraud a compensation carrier of its third-party subrogation lien. The Supreme Court of Pennsylvania accepted the resignation and disbarred him on February 27, 2014. See order of Feb. 27, 2014, Office of Disciplinary Counsel v. Noonan, No. 140 DB 2013, available at http://www.pacourts.us/assets/ opinions/ Dis-ciplinaryBoard/out/140DB2013-Noonan.pdf (last visited Apr. 1, 2014).

      . The notice says “2010,” apparently in error, but the letter that introduces it, sent in January 2012, says “2012.”

      . The court also issued a pretrial order on January 7,2013, in which it stated that motions in limine were to be filed no later than thirty days before jury selection. Appellee Noonan’s motion in limine was filed beyond that deadline as well. (See order, court ex. F.)


author: LOVECCHIO, J.,

text:
    Estate of Hawkes

      C.P. of Lycoming County,
    No. 41-11-0461
    Aug. 3, 2014
   LOVECCHIO, J.,

This matter came before the court on a petition filed by the Estate of William H. Hawkes, III (“Estate”) to compel Mary Jo Samuel (“Samuel”) to transfer a time share in the Manhattan Club to the Estate. Samuel contended that, as a matter of law, the Estate was not entitled to the relief requested. The relevant facts follow.

On April 18, 2001, a time share in the Manhattan Club was purchased and titled in Samuel’s name. William H. Hawkes, III (“Hawkes”) made more than ninety percent (90%) of the monthly payments to purchase the time share. According to Samuel’s deposition testimony and her statements to agent Ronald Bachman of the Williamsport Bureau of Police, Hawkes didn’t want the property titled in his name and wanted the property in Samuel’s name because it would become community property if it was in his name and his wife divorced him. Hawkes left the marital residence and moved in with Samuel in December 2002, but he and his wife never divorced.

Hawkes died on May 21, 2011. Following his death, several individuals filed claims against the estate, alleging that Hawkes obtained money from them by fraudulent means and used their money for his own personal gain. Samuel also alleged that she was a victim of Hawkes. She filed a lawsuit against the estate with damage claims in excess of $800,000.

The estate filed a petition to compel Samuel to transfer the Manhattan Club time share to the estate. In opposing the petition, Samuel raised the defenses of merger by deed, the statute of frauds, and a claim of offset with respect to her claims for monetary damages. She averred that the time share was titled in her name alone and was never titled in Hawkes’ name, and she paid maintenance expenses, annual fees and taxes on the time share.

DISCUSSION

Samuel first contends that the relief requested by the estate is barred by the doctrine of merger by deed. The court cannot agree.

The doctrine holds that “all warranties and representations in connection with a sale or other transaction made prior to or contemporaneous with a deed are merged into the deed and that unless therein expressly provided for, they are forever lost.” Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771, 775 n.11 (1972); see also Wade v. Huston, 877 A.2d 464, 465 (Pa. Super. 2005). Stated another way, the doctrine provides a general rule that “an agreement of sale merges into the deed and no recovery can be had based upon an earlier agreement.” Pa. Elect. Co. v. Wattman, 620 A.2d 1165, 1170 (Pa. Super. 1995). There are exceptions to the merger rule, however, “when the intention of the parties is otherwise, or where the stipulations in the contract sought to be enforced are collateral to the functions performed by the deed.” Carsek Corp. v. Stephen Schifter, Inc., 431 Pa. 550, 246 A.2d 365, 369 (1968).

The court finds that the doctrine of merger by deed does not apply to the facts and circumstances of this case. The doctrine was designed to govern the relationship between parties on opposite sides of a real estate sale or transaction; it was not designed to permit individuals to hide assets from spouses or creditors. There was no buyer/seller relationship between Samuel and Hawkes. The seller of the time share was T. Park Central LLC (a/k/a The Manhattan Club).

Furthermore, it appears that Hawkes was the actual purchaser of the time share. Documents contained in exhibit C of the estate’s petition clearly show that the down payment and the monthly payments were charged to Hawkes’ credit cards. Samuel’s deposition testimony and her statements to agent Bachman also show that Hawkes made over 90% of the payments on the time share and the only reason the time share was titled in her name was because Hawkes was trying to keep it from being considered marital property in the event his wife divorced him. In other words, Samuel’s own statements show that Samuel was nothing more than a straw purchaser so that the actual purchaser, Hawkes, could hide this asset from his wife.

Samuel argues that Hawkes defrauded her of hundreds of thousands of dollars, making it extremely likely that any funds Hawkes may have used to purchase the time share were actually her funds. The court cannot agree. Samuel is not the only individual claiming that Hawkes defrauded her. There are several other individuals who have made similar claims against the estate. There is nothing in the record to show that the money Hawkes may have used to purchase the time share came from Samuel’s funds as opposed to the funds of the other claimants or his own funds.

Even if the doctrine of merger applied, it would only preclude the estate’s claim if the parties intended such a result. See Wade v. Huston, 877 A.2d 464, 465 (Pa. Super. 2005). The intent of the arrangement between Samuel and Hawkes was not to preclude Hawkes from making an ownership claim against Samuel; it was to keep Hawkes’ wife from obtaining an interest in the time share in the event of a divorce. Therefore, the doctrine of merger by deed does not preclude the estate’s claim in this case.

Samuel also contends that the estate’s claim fails due to the statute of frauds. Again, the court cannot agree.

The statute of frauds generally mandates that contracts for the sale of property be in writing. 33 P.S. §1; Rosen v. Rittenhouse Towers, 334 Pa. Super. 124, 482 A.2d 1113,1116 (1984). “The purpose of the statute is to prevent the possibility of enforcing unfounded, fraudulent claims, by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest.” Rosen, 482 A.2d at 1116-1117. The statute of frauds, though, is also subject to several exceptions. One such exception is where a titleholder admits that she entered into an oral contract. Rosen, 482 A.2d at 1117. Similarly, “partial performance, which has benefited the party invoking the statute, will in appropriate circumstances, bar the invocation of the rule.” In re Estate of Brojack, 467 A.2d 1175, 1182 (Pa. Super. 1983).

In her deposition and her statements to agent Bachman, Samuel readily admitted that Hawkes made over 90% of the payments to purchase the time share, but he didn’t want his name on the title so it wouldn’t be a problem if he and his wife divorced. Under the facts and circumstances of this case, the estate is not making a fraudulent claim. Hawkes clearly had an ownership interest in the time share; he just did not want a public record of any such interest.

Samuel’s final argument is that the estate cannot compel her to transfer the time share because she has the right to retain the property by offsetting her damages due to Hawkes’ fraudulent conversion of her own funds. The Estate counters that Samuel already settled and released her claim against the estate; therefore Samuel no longer has a claim for offset.

The court rejects Samuel’s set-off argument for several reasons. Samuel’s claims against the estate relate to Hawkes’ allegedly fraudulent conversion of various insurance policies, annuities, retirement investments, and accounts. Samuel, however, released and discharged the estate from most, if not all, of these claims in the third paragraph of the settlement and release, which Samuel signed on J anuary24,2014 and the estate signed on J anuary 17, 2014. Furthermore, to the extent that any fraudulent conversion claim remains, it is an unsecured claim just like the similar claims made by the other claimants. It appears that the estate is insolvent. The time share was titled in Samuel’s name because she was romantically involved with Hawkes and he was trying to keep the time share from becoming marital property in the event of a divorce. It would be patently unjust and inequitable to deprive the other claimants of a portion of the value this asset when it appears that Hawkes was the true purchaser of this asset and Samuel was the purchaser in name only.

ORDER

And now, this 3rd day of August 2014, the court denies Samuel’s arguments that the Estate cannot prevail on its petition as a matter of law. The parties shall have thirty (30) days within which to submit any additional transcripts, depositions, documents or other evidence so the court can issue a final decision on the merits.

      . Samuel did not brief any choice of laws or statute of limitations issues. Therefore, the court will consider these issues waived.

      . The court was under the impression that the parties had agreed that the facts really were not in dispute and the court would decide this matter on the merits on the documents submitted and the parties’ briefs. Samuel’s brief, however, reads as if the decision was to be more like one on preliminary objections in the nature of a demurrer or a motion for judgment on the pleadings. Therefore, the court will give the parties a further opportunity to submit additional evidence or argument.


author: HODGSON, P.J.,

text:
    Ruddy v. Saitta

      Joseph Carney, for plaintiffs/appellees.

      William MacMinn, for defendants/appellants.
    April 30, 2008
   HODGSON, P.J.,

— David Saitta and Colleen Saitta (appellants), appeal our order dated March 29,2006 in which this court granted Donald and Eleanor Ruddy’s (appellees) motion for summary judgment as well as an easement by necessity through appellants’ land. Appellants further appeal our order dated February 6,2008, determining the location of said easement.

FACTS AND PROCEDURAL HISTORY

The parties to this action are the owners of two adjoining separate tracts of land that are located in Marlborough Township, Pennsylvania. Both properties were at one time owned by Thomas White until 1937 when White conveyed away what is now appellants’ land (the “servient estate”), thereby depriving the remaining land parcel (the “dominant estate”) without access to a public roadway. Thereafter, the dominant estate remained landlocked and was in such a condition when appellees obtained title to it in 1985. Appellants subsequently obtained title to the servient estate in 2001 and appellees thereafter approached them regarding the possibility of an easement so that appellees might have access to the public roadway from their land. Unable to reach a successful resolution, appellees filed an action to quiet title with this court on May 31, 2005, in which they alleged that they were entitled to an easement by necessity through appellants’ land. In their answer, appellants argued that appellees could instead obtain access to the road by traveling over other adjoining land parcels. Appellees then filed a motion for summary judgment, which we granted on March 29,2006, finding that appellees were entitled to an easement by necessity through the servient estate. We further granted the parties 90 days within which to decide the details surrounding the construction of said easement. The parties were unable to reach such an agreement and we accordingly held a hearing on October 11, 2007 and October 31, 2007 concerning the location of the easement. After considering the evidence and proposed routes of both parties, we found appellants’ to be unreasonable and directed the easement to follow the contours of appellees’ proposed driveway. Appellants then filed this instant appeal with the Pennsylvania Superior Court on March 6, 2008. In accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, we directed appellants to file and serve upon us a concise statement of errors complained of on appeal by no later than April 4, 2008. We received said statement on March 27, 2008.

LEGAL DISCUSSION

Initially, appellants argue that this court erred in granting appellees’ motion for summary judgment and finding that appellees were entitled to an easement by necessity over their land. Specifically, appellants maintain that such a finding is unsupported by evidence and ignores material factual disputes regarding the ownership of the adjacent lots of land and whether or not the necessity, which forms the basis for the easement, existed at the time of the severance of title. ’

Summary judgment is governed by Rule 1035 of the Pennsylvania Rules of Civil Procedure which provides that a motion for such judgment may be granted upon finding that the pleadings as well as any depositions, answers to interrogatories and admissions on file, along with affidavits, show that there is no genuine issue regarding material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b). Accordingly, our inquiry is whether there are any facts alleged which establish a genuine issue so that summary judgment should not have been granted.

The Pennsylvania Supreme Court has held that where a conveyance of property creates a situation such that “access to it from the highway cannot be had except by passing over the remaining land of the grantor, then the grantee is entitled to a way of necessity over the lands of his grantor.” Soltis v. Miller, 444 Pa. 357, 359, 282 A.2d 369, 370 (1971). In order for such an easement to arise, the following elements must be met:

“(1) The titles to [both] the alleged dominant and servient properties must have been held by one person.

“(2) This unity of title must have been severed by a conveyance of one of the tracts.

“(3) The easement must be necessary in order for the owner of the dominant tenement to use his land, with the necessity existing both at the time of the severance of title and at the time of the exercise of the easement.” Graff v. Scanlan, 673 A.2d 1028, 1032 (Pa. Commw. 1996).

Upon review of the relevant facts in this case, we find our order granting appellees’ motion for summary judgment was properly entered. Both of the parties’ properties were at one time owned by Thomas White until 1937 when he conveyed the servient estate thereby leaving the dominant estate landlocked as it remains today. As such, appellees are entitled to an easement across the servient estate land in order for them to reach a public freeway. Although appellants maintain that appellees may gain access to Long Road by crossing over other neighbors’ properties, such an argument fails to take notice of the fact that an easement by necessity requires both dominant and servient properties to have shared a unity of ownership at one time. Here, the servient estate is the only land which borders the dominant estate where both entire parcels enjoyed common ownership. Even though appellees’ land also borders a second neighboring parcel of property, part of which was owned by White, access through it by easement cannot be had since the portion of the land bordering the dominant estate was owned by another individual and not by White. This is evidenced by the exhibits attached to appellees’ complaint. On this basis, we properly found appellees are entitled to summary judgment in their favor as well as an easement by necessity over appellants’ land.

Appellants next argue that this court erred in its order dated February 6,2008 identifying the location of appellees’ easement. Specifically, appellants maintain that the location of said easement is inconvenient and unreasonably burdens the servient estate. They further opine that such a finding is unsupported by evidence as it ignores the testimony of appellants’ experts and further fails to comply with township driveway construction ordinances. Upon review of appellants’ arguments, we submit that this court’s order describing the location of appellees’ easement clearly sets forth the reasoning for our decision and, therefore, we need not issue another full opinion in accordance with Rule of Appellate Procedure 1925(a).

We shall address appellants’ claim that we failed to consider local township driveway ordinances in our order granting appellees’ easement.

Clearly, appellees believe that they can obtain waivers of any applicable township ordinances. Otherwise, it would make no sense to submit the easement route which we found to be appropriate. However, since we are not in a position to predict whether any necessary approvals will be granted, we did not address this issue in our order.

CONCLUSION

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

      . Also included in White’s 1937 conveyance was land that is not part of the servient estate.

      . A copy of the court’s order dated February 6, 2008 is attached hereto [not published herein].