text:
    Hertzog v. Stafford, LLC
    C.P. of Monroe County,
    No. 5757 CIVIL 2012

      Joshua B. Goldberg, for plaintiffs.

      Joseph Pulcini, Jr, for defendant.
    July 10, 2013
   WILLIAMSON,«/.,

This matter comes before us on a motion for summary judgment filed by Cassandra Stafford (hereafter, “defendant”), requesting David and Kimberly Hertzog’s (hereafter, “plaintiffs”) complaint be dismissed because plaintiff husband allegedly signed a release of all claims against all persons involving another party to the underlying facts of this case (but not a named party herein).

Plaintiffs commenced this action by filing a complaint on July 10,2012. On September 17,2012, defendant filed an answer with new matter. With no opposition from plaintiffs, defendant filed an amended answer with new matter on February 18, 2013. The defendant filed the motion for summary judgment currently before this court on May 21, 2013. In their complaint, plaintiffs allege that plaintiff husband was operating a vehicle that was rear-ended by the defendant on July 14, 2010 while she was driving a rental vehicle. Discovery has been completed. Both parties submitted briefs, and oral argument on this matter was held on June 28, 2013. We are now ready to dispose of defendant’s motion summary judgment.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled fact contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951).

Defendant argues that there are no genuine issues of material fact and requests that the court grant summary judgment in its favor. Plaintiff David Hertzog and defendant were involved in a motor vehicle accident. Plaintiff made a claim against Enterprise Car Rentals, in addition to a claim against the defendant. Plaintiff reached terms of a settlement with Enterprise before suit was filed. Defendant alleges that on February 23, 2012, plaintiff David Hertzog signed a “Release of All Claims” with the rental car company, effectively barring any claims the plaintiffs may have against the defendant. We disagree.

In particular, the release provides, in pertinent part:

“[T]he undersigned, David Hertzog, being of lawful age, for the sole consideration of...($15,000) to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/ours/it’s heir, executors, administrators, successors and assigns release, acquit and forever discharge,... [Enterprise]..., it’s/their employees, officers and agents, et. al., and his/her/their/it’s agents, servants, successors, heir, executors, administrators and other persons, firms, corporations, associations, partnerships of and from any and all claims of any type or nature, including but not limited to, any actions, causes of actions, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now had/have or which may hereafter accrue on account of or in any way growing out of any and all known or unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the incident, casualty or event which occurred on or about the 14th day of July, 2010, at or near Monroe County, PA.”

See defendant’s motion for summary judgment, exhibit “C” (emphasis added).

The effect of a release must be determined from the ordinary meaning of its language. Buttermore v. Aliquippa Hosp., 561 A.2d 733, 735 (Pa. 1989). Unless the release provides otherwise, a release of one tortfeasor does not discharge other tortfeasors. Charles v. Giant Eagle Markets, 522 A.2d 1, 4 (Pa. 1987) (citing 42 Pa.C.S. §8236).

Defendant argues that the release, as set forth above, is broad enough to encompass the claims against the defendant in this action because the release is “of any and all claims” from the rental car company “and other persons”, with no holdback as to an action against defendant.

In support of this argument, the defendant cites a litany of Pennsylvania case law. However, each case is distinguishable from the current set of facts. For instance, the release in Buttermore contained the phrases “all other persons...whether known or unknown, suspected or unsuspected...” Buttermore 561 A.2d at 734 (emphasis added). The release in the present case releases “other persons”, not “all other persons.” Furthermore, the Buttermore release contains “whether known or unknown, suspected or unsuspected” language which is not contained in the release at issue in the present case. Accordingly, where the ordinary meaning of the language in the Buttermore release has the effect of releasing all parties known and unknown, the language of the release in this case cannot have the same meaning, because the release does not contain the same language. It is entirely possible to read the language, including “other persons” to mean other persons related to Enterprise. By its plain meaning, the language relates to other persons in the employ or agency of Enterprise, which the defendant herein is neither.

The language of the release in this case is also distinguishable from other cases cited by the defendant. See Ford Motor Company v. Buseman, 954 A.2d 580 (Pa. Super. 2008) (a release given to a particular individual and “any and all other persons whether herein named or not” is applicable to all tortfeasors despite the fact that they are not specifically named); Porterfield v. Trustees of the Hosp. of the Univ. of Pa and Kline, 657 A.2d 1293 (Pa. Super. 1995) (a release to “any and all other persons, firms, corporations, and associations” from all injuries and damages “known and unknown, foreseen and unforeseen” was enforceable against all other tortfeasors). The releases of the aforementioned cases share a common “any and all other persons” language that is absent and distinguishable from the release in the present case.

In addition, when this release is read in context, it is clear that the phrase “other persons” is modified by the language “of and from”, The “of and from”, as it is ordinarily understood, modifies the previous nouns, including “other persons”. Therefore, the release clearly only is effective against claims against the rental car company.

Accordingly, viewing the release in a light most favorable to the non-moving party, this release is not the kind of general release existing in Buttermore. The release does not release and bar all claims relating to the July 14, 2010 accident, just the claims as to the named entities and those other persons related to the named entities listed in the release. As such, summary judgment is not appropriate, and we issue the following order.

ORDER

And now, this 10th day of July, 2013, upon consideration of defendant’s motion for summary judgment, the same is denied.


source: Caselaw Access Project

author: SNITE, J.,

license: Public Domain

text:
    Burlington Coat Factory of Pa., LLC v. Grace Construction Management Company, LLC

      Heather M. Eichenbaum, for plaintiffs.

      Thane C.J. Trotman, for defendant
    July 12, 2013
   SNITE, J.,

On June 14, 2013, this court ruled on cross-motions for summary judgment in the above captioned case. By order dated June 14, 2013, this court granted the summary judgment motion of defendant Grace Construction Management Company, LLC, and denied the summary judgment motion of plaintiffs. On July 11,2013, this court received notice that plaintiffs had filed an appeal to the Superior Court of Pennsylvania from this court’s June 14; 2013 order.

DISCUSSION

This court adopts, as its opinion on appeal, the order and opinion dated April 30, 2013, which sets forth this court’s reasoning. This opinion is incorporated herein by reference. This court asks that the June 14, 2013 by affirmed.

ORDER

And now, this 14th day of June, 2013, upon consideration of the parties’ cross-motions for summary judgment, the responses thereto, and all other matters of record, and in accord with the opinion issued simultaneously, it is ordered that plaintiff’s motion for summary judgment is denied and defendant’s motion for summary judgment is granted.

It is further ordered that judgment is entered in favor of defendant and against plaintiffs on all of plaintiffs’ claims in this action.

OPINION

Plaintiff Burlington Coat Factory Warehouse Corporation is the parent corporation, and plaintiff Burlington Coat Factory of Pennsylvania, LLC is the subsidiary (collectively, the “BCF Entities”), which operates a store in Philadelphia (the “Store”). Defendant Grace Construction Management Company, LLC (“Grace”) is a contractor who entered into a contract (the “contract”) with “Burlington Coat Factory” to perform renovations to the Store.

Brian Eddis, an employee of one of Grace’s sub-subcontractors, Belfi Brothers, was injured while using the freight elevator at the Store. He and his wife sued the BCF entities and Schindler Elevator Corporation (“Schindler”), which apparently had a contract to service and maintain the freight elevator (the “underlying action”). The parties settled the underlying action with the BCF Entities contributing $35,000 and Schindler contributing $35,000. There was no finding of liability in the underlying action.

When the underlying action was filed, the BCF Entities demanded a defense and indemnification from Grace and its insurance company, but their demand was refused. Grace’s insurance company asserted that its coverage was not primary. As a result, the BCF Entities brought this action against Grace for breach of contract, contribution and indemnity. The parties have cross-moved for summary judgment, which motions are presently before the court.

The main body of the contract between Grace and “Burlington Coat Factory” provides in relevant part as follows:

12. INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless BCF, the Architect, the Engineer, the Architect’s consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting there from, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.

Exhibit Ato the contract between Grace and “Burlington Coat Factory” provides in relevant part as follows:

1. Grace Construction Management Company releases BCF and assumes entire responsibility and liability for any and all claims and/or damages of any nature or character whatsoever arising under the Contract Documents, by operation of law, or in any other manner with respect to work covered by this CONTRACT and agrees to indemnify and save BCF harmless from and against all claims, demands, liabilities, interest, loss, damage, attorneys’ fees, costs and expenses of whatsoever kind or nature, whether for property damage, personal injury, or bodily injury (including death) to any and all persons, whether employees of Grace Construction Management Company, BCF or others, or otherwise, caused or occasioned thereby, resulting there from, arising out of or there from, or occurring in connection therewith. Grace Construction Management Company further agrees to indemnify and save BCF harmless from any and all manner of claims, damages, or suits for infringement or violations of one or more copyrights, patents and/or patent rights, including all costs and expenses (including attorneys’ fees) which BCF may incur or sustain in connection with the same.
2. Grace Construction Management Company shall procure and maintain, at its own expense, the following insurance:
* * *
B. General Liability* Bodily Injury/Property Damage
$1,000,000 Combined Single Limit
$2,000,000 General Aggregate
* * *
D. Name BCF and Landlord as additional Insured
*The General Liability coverage shall include BCF as an Additional Insured and include the “Aggregate Limits per Project” endorsement. This $2,000,000 general Aggregate limit shall by endorsement apply to each project of the Grace Construction Management Company and the $2,000,000 Aggregate endorsement shall be folly available under this CONTRACT with Contractors and shall not be depleted by claims arising from any other project, work, job, sale or delivery. The General Liability coverage shall include contractual liability coverage for the liability that Grace Construction Management Company assumes and/or undertakes (for example, indemnification obligations) under this CONTRACT. Contractors shall also procure and maintain such additional types and minimum limits of insurance as the landlord may require of BCF under the Contract documents between the Landlord and BCF and/or as BCF may require of Contractors hereunder. All insurance coverage shall be written with a carrier with a rating of A minus or better per the then-current A.M. Best Company rating. Before commencing work, and before delivering any materials, articles and/or equipment hereunder, Grace Construction Management Company shall furnish a properly completed Accord Evidence of Insurance addressed to BCF establishing that all the insurance coverage required hereunder is in force and will not be canceled with less than thirty (30) days prior written notice to BCF, such notice to be by Certified Mail. The certificate(s) will list BCF as an additional named insured. Such insurance shall contain no “exclusions” or “deductibles,” except as approved in writing by BCF. Failure of BCF to require the production of such certificates of insurance shall not absolve CONTRACTOR of its obligations in respect thereto. Should Contractors fail to procure and maintain such insurance, BCF shall have the right to procure and maintain same for and in the name of CONTRACTOR, and charge the cost and any related other expenses thereof to Grace Construction Management Company. No payment shall be made on this CONTRACT agreement prior to receipt of certificate of insurance acceptable to BCF.

Although Grace added “Burlington Coat Factory” as an additional insured on its policies, the BCF Entities claim Grace breached the contract because its insurer refused to provide coverage. However, there is nothing in the contract that requires that Grace’s insurance be primary.

The BCF Entities also argue that, under the contract, they are entitled to complete indemnification from Grace “regardless of issues of negligence or fault.” However, neither of the indemnification provisions in the contract contain language expressly requiring Grace to indemnify the BCF Entities for the BCF Entities’ or their agents’ own negligence.

[T]he language of the [first] indemnity provision in no way demonstrates an unambiguous intention by [Grace] to provide indemnification for the negligence of [BCF] as required by the Perry-Ruzzi rule. By agreeing to language stating that [BCF was] indemnified for damages “only to the extent that” the damages were caused by the negligence of [Grace] and its sub-subcontractors, employees and anyone for whom it may be liable, the parties communicated their intent to limit any indemnification to that portion of damages attributed to the negligence of [Grace] and those under its supervision. The chosen language simply does not evince an intent to provide indemnification for damages due to the negligence of other unspecified parties, including [BCF]. Moreover, we read the second part of the provision, which states that the indemnity clause will apply “regardless of whether or not such claim... is caused in part by a party indemnified hereunder,” merely to clarify that any contributory negligence by [BCF] will not bar their indemnification for damages due to [Grace’s] negligence.

The second indemnification provision is less specific than the first, in that it does not contain either the “only to the extent caused by” language, nor the “regardless of whether caused by” language, but it certainly contains nothing stating that Grace will indemnify the BCF Entities for their own negligence. Under either provision, the court cannot determine whether Grace has any duty to indemnify the BCF Entities until their relative fault for Mr. Eddis’ accident is decided.

In order to determine if either of the parties was negligent, there must be some evidence presented of their fault. Grace points to the expert report generated in the underlying action as evidence of negligence by the BCF Entities and their elevator maintenance company. In his report, the expert concluded as follows:

I have concluded Mr. Eddis’s injuries reported at the subject property were caused by BCF’s failure to properly maintain and repair the subject elevator, gate and associated components. My investigation revealed BCF repeatedly ignored requests to repair the gate and doors of the subject elevator, creating an unsafe, unreliable and hazardous condition that resulted in Mr. Eddis’s injuries. I have also concluded Schindler failed to properly repair the subject elevator, specifically the alarm bell prior to the incident resulting in Mr. Eddis’s injuries.
It is evident the incident was caused by a failure of the safety shoe and alarm bell of the subject elevator failed [sic] on the date of the incident or by the gate completely derailing from its track, resulting in the alarm bell not sounding. These conditions and the lack of a proximity edge installed on the subject elevator resulted in Mr. Eddis’s injuries on the date of the incident.

This report and the materials upon which it is based are sufficient evidence to create an issue for trial as to whether the BCF Entities were negligent.

The evidence of Grace’s fault is scant. The BCF Entities assert that Mr. Eddis was performing work for Grace under the contract when he was injured, which appears to be true. They also assert that Grace negligently trained and supervised Mr. Eddis with respect to his use of the freight elevator. The only evidence the BCF Entities point to in support of this claim is the testimony by Grace’s project supervisor in which he admits that he “told the subcontractors’ foremen that Burlington Coat had requested we grab either an assistant manager or the security guard to operate the freight elevators for us.” While this admission may be sufficient evidence of Grace’s (and Mr. Eddis’) duty to obtain assistance before using the elevator, it is not evidence that a breach of that duty caused Mr. Eddis’ damages.

In trying to recover for an action in negligence, a party must prove four elements. They are:

1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor’s breach of the duty and the resulting injury.
4. Actual loss or damage suffered by complainant.
It is beyond question that the mere existence of negligence and the occurrence of injury are insufficient to impose liability upon anyone as there remains to be proved the link of causation. Furthermore, our Supreme Court has stated that “even when it is established that the defendant breached some duty of care owed the plaintiff, it is incumbent on a plaintiff to establish a causal connection between defendant’s conduct, and it must be shown to have been the proximate cause of plaintiff’s injury.”

In this case, there is no evidence, expert or otherwise, that Mr. Eddis’ or Grace’s failure to request assistance, rather than an alleged malfunction of the elevator, was the cause of his injuries. Therefore, there is no evidence that Grace’s breach of duty, or that of anyone other than the BCF Entities, was the cause of Mr. Eddis’ injuries.

Since Grace did not expressly agree to indemnify the BCF Entities for the BCF Entities’ own negligence, and they are the only ones who could be found liable at trial based on the evidence presented, Grace has no duty under the contract to indemnify them for the expenses they incurred in connection with the underlying Eddis action.

CONCLUSION

For all the foregoing reasons, Grace’s motion for summary judgment is granted and the BCF Entities’ motion for summary judgment is denied.

      . According to the allegations of the complaint in the underlying action, “[o]n or about October 1, 2009, Plaintiff, Brian Eddis was transporting material from the loading dock onto the freight elevator using a wheel barrel and as he was preparing to set the wheel barrel down on the floor of the elevator, suddenly and without warning, the elevator doors closed on Plaintiff Brian Eddis striking him on his back and pinning him between the closing doors and the wheel barrel.” Complaint, ¶6.

      . The BCF Entities also joined Grace as an additional defendant in the underlying action and asserted claims against it for contribution and indemnity. Once Mr. Eddis’ claims were settled, those joinder claims were consolidated with the claims in this action.

      . Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 7, 588 A.2d 1.4 (1991) (“The law has been well settled in this Commonwealth [since 1907] that if parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language. No inference from words of general import can establish such indemnification.”)

      . Greer v. City of Philadelphia, 568 Pa. 244, 249-50, 795 A.2d 376, 379-80 (2002).

      . Report of Plick and Assoc, Professional Engineers, dated August 21,2012, pp. 16-17.

      . Deposition of Arthur C. Snellbaker, Jr., dated September 19, 2012, p. 49.

      . Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005).

      . The BCF Entities claim that Mr. Eddis was negligent in failing to push the “stop” button to hold the doors open while he loaded the elevator, but they do not cite to evidence of record indicating that he failed to do so. See BCF Entities’ reply brief, p. 3, ftnt 3.

      . Similarly, there is no evidence that Grace’s alleged negligence in allowing workers such as Mr. Eddis to carry excessively heavy loads caused the elevator to close on Mr. Eddis.


author: JACKSON, /,

text:
    White v. City of Philadelphia

      Kelly Susan Diffily, for defendants/appellants.

      Alan E. Denenberg and Martin Stanshine, for plaintiff/ appellee.
    July 29, 2013—
   JACKSON, /,

I. FACTUAL AND PROCEDURAL HISTORY

This is an appeal arising out of this court’s order denying defendants’ post trial motions and an entry of judgment in the amount of $100,000.00 stemming from a jury verdict in favor of the plaintiff. This case arose out of an accident between the plaintiff, Gregory White (hereinafter “appellee”) and the defendant, Philadelphia Police Officer Kevin Devlin, (hereinafter “appellant”). At the start of trial, there were three (3) named defendants; the City of Philadelphia, Police Officer Kevin Devlin, (collectively “appellants”) and Police Officer Joseph McCauley. Police Officer Joseph McCauley was dismissed from the case, as agreed. The factual history of the case is as follows:

On November 12, 2008, appellant was operating an unmarked police vehicle northbound on 60th Street while on duty. N.T. 9/28/12 at 8-9. At approximately 1:15 pm, appellant observed appellee walking his bicycle northbound on 60th Street while exchanging pills for U.S. currency with two unknown individuals. N.T. 9/28/12 at 15. Appellee noticed appellant’s vehicle behind him on 60th Street, however, because the vehicle was unmarked, appellee was unaware of appellant’s identity. N.T. 9/28/12 at 22-23,28. Thereafter, appellee began to ride his bicycle westbound on Haddington Avenue away from the two (2) alleged buyers. N.T. 9/27/12 at 32. Appellant also turned westbound on Haddington Avenue and it was at this point that appellee realized that appellant was, in fact, following him. N.T. 9/27/12 at 32-33; N.T. 9/28/12 at 15-17. Still unaware of appellant’s identity, appellee attempted to escape the appellant on his bicycle. N.T. 9/27/12 at 32.

Despite the fact that the appellant was driving an unmarked vehicle, the appellant did not identify himself while pursuing the appellee. N.T. 9/27/12 at 32. Moreover, the appellant did not activate any audio or visual sirens, lights, or alerts while pursuing the appellee. Appellee testified that the appellant drove his vehicle onto the curb striking the rear tire of the appellee’s bike. N.T. 9/27/12 at 32. As a result of the impact, appellee’s ankle bone was “ripped” into pieces. N.T. 9/27/12 at 99-100, 117. The severity of this injury caused the appellee to undergo surgery and on-going treatment. The procedural history of the case is as follows:

The appellee filed a civil action in the Court of Common Pleas, Philadelphia County, Civil Division which was docketed under June Term 2010 (No. 02225). The appellee brought specific claims against appellants alleging negligence, assault, and battery.

On October 9, 2012, the jury found that the appellant was negligent and that his negligence caused appellee’s injuries. It awarded $ 100,000.00 in compensatory damages to the appellee.

That same day, appellants filed post trial motions for judgment notwithstanding the verdict (“JNOV”) and a new trial. On October 10, 2012, a motion for delay damages and a request for bill of cost was filed on behalf of the appellee.

After oral arguments were held on March 18,2013, this court denied appellants’ post trial motions for JNOV and a new trial. This court then granted appellee’s post trial motions for delay damages in the amount of $5,135.42 molding the verdict to $105,135.42. This verdict was entered onto the docket on March 28, 2013.

On April 1, 2013 the appellants filed their appeal docketed as 650 CD 2013 and filed a concise statements of matters complained of on appeal pursuant to Pa. R.A.P. § 1925(b) as outlined below. The ultimate issue presented is whether claims against the appellant should have been allowed pursuant to Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8542 (hereinafter “Tort Claims Act”). This opinion will address this issue and others complained of by the appellants within their statement of particulars. Additionally, this opinion will discuss the denial of appellants’ post trial motions.

II. DISCUSSION

A. Standards of Review

1. Judgment Notwithstanding the Verdict (“JNOV”)

This court’s denial of appellant’s motion for JNOV should be affirmed. As stated in Lockwood v. City of Pittsburgh 561 Pa. 515, 519, 751 A.2d 1136, 1138 (2000);

“Judgment notwithstanding the verdict can be entered only if the movant is entitled to judgment as a matter of law or if the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992). A lower court’s grant or denial of a judgment notwithstanding the verdict will be disturbed only for an abuse of discretion or an error of law. Id.”

As discussed below, the appellants were not entitled to a judgment as a matter of law. The credible testimony presented by the appellee supported the jury’s verdict against the appellants. The appellant pursued the appellee in an unmarked vehicle. Although the appellant was attempting to effectuate an arrest, the appellant’s failure to identify himself during the pursuit and subsequently running into the appellee’s bike was enough evidence to find the appellant negligent. The evidence was not such that two reasonable minds would disagree with the outcome of this case. As such, the trial court’s decision to deny appellants’ motion for JNOV should be affirmed.

2. New Trial

According to Pennsylvania law, our research shows that, the trial court has sound discretion in determining whether to deny or grant a new trial. Peterson v. Shreiner, 822 A.2d 833, 836 (Pa. Super. 2003). So long as the trial court has not abused it’s discretion or committed an error of law, the trial court’s determination in granting or denying a new trial will not be disturbed. Ultimately, a new trial is warranted where the jury’s verdict is inconsistent with the evidence provided in such a way that it shocks one’s sense of justice. Id.

Here, as discussed above, there was sufficient evidence for the jury to find that the appellant was negligent and that his negligence was the factual and proximate cause of the appellee’s severe injuries. The verdict did not shock this court’s sense of justice and we committed no error of law. Consequently, this court properly denied appellant’s motion for a new trial and this decision should be affirmed.

3. Evidentiary Rulings

The appellants alleged that this court erred when excluding from the jury’s consideration evidence of the appellee’s underlying criminal conviction. Appellants argued that during their cross examination of the appellee, the appellants should have been permitted to ask the appellee if he illegally possessed specific quantities of cocaine, Percocet, Xanax, morphine, ecstasy, and valium during the incident. This court ruled that the appellants could only use the phrase “illegal contraband”. This court’s decision to limit the evidence to use of the phrase “illegal contraband” should be affirmed as it was within this court’s sound discretion to do so.

The Tort Claims Act states that “whenever a plaintiff claims liability under [the Tort Claims Act] evidence is admissible to demonstrate that the plaintiff, at any time during the course of the alleged negligence, was engaged or participating in willful misconduct, including, but not limited to, the illegal possession of controlled substances, firearms or ammunition.” 42 Pa. Cons. Stat. Ann. § 8542 (d). Nevertheless, the trial court has always had the responsibility of weighing the admissibility of relevant evidence when prejudicial. Pa. R.E. 403. Consequently, the trial judge has broad discretion to preclude relevant evidence that may be prejudicial or misleading if the probative value is substantially outweighed by the prejudicial effect. Com. v. Parker, 591 Pa. 526, 919 A.2d 943 (2007).

Subsection (d) of the Tort Claims Act would allow the appellants to admit evidence of the willful misconduct of the appellee, including his illegal possession of controlled substances. This court evaluated the prejudicial effect of allowing the specific testimony particularly referring to the quantity and type of illegal contraband within appellee’s possession. As a result, this court determined that the probative value of such detailed testimony would have been substantially outweighed by the misleading nature of the specific testimony. Therefore, this court held that the appellant could not seek testimony regarding the quantity and type of the contraband in appellee’s possession at the time of the incident. However, this court did allow the appellants to use the phrase “illegal contraband” in order to demonstrate that the appellee was engaged in willful misconduct. Moreover, the appellee openly testified to selling Xanax moments before his accident with the appellant. N.T. 9/27/12 at 22. This court’s decision to deny appellants’ motion should be affirmed.

B. Defendant’s Appeal

As stated above, appellants’ primary allegation is that this court committed an error of law in failing to apply the “in flight” or “fleeing apprehension” exception of the Tort Claims act. However, the appellants expanded this primary allegation into 3 separate issues on appeal. First, appellants argue that the “in flight” or “fleeing apprehension” exception to the vehicle exception of the Tort Claims Act precludes recovery to the appellee because the appellants owe no common law duty of care to the appellee, “a fleeing suspect.” Next, appellants argue that this court wrongfully included a mens rea element to that statute requiring “knowing flight or knowingly fleeing police apprehension.” Lastly, the appellants argue that this court should not have allowed the jury to consider Verdict Sheet, question #7 which asked “[a]t the time of the incident, did the plaintiff, Gregory White know that the defendant, Officer Kevin Devlin, was a police officer and as a result was fleeing apprehension?” This opinion will address the primary allegation complained of by the appellant.

Determining whether a plaintiff was “in flight” or “fleeing apprehension” is question for the jury. Forgione v. Heck, 736 A.2d 759, 761 (Pa. Commw. 1999). The appellants have agreed with this determination. N.T. 9/25/12 at 34. However, this case involves a nuanced issue with the statutory language of the Tort Claims Act exception, particularly with the meaning of “in flight” or “fleeing apprehension.” This court has interpreted the Tort Claims Act “in flight” or “fleeing apprehension” pursuant to the object and purpose of the statute as expressed in previous Pennsylvania cases.

The object to be attained by this exception to the Tort Claims Act was to prevent plaintiffs who choose to flee the police without regard to safety of themselves or others from benefitting from the situation the plaintiff created. See Generally Hawks by Hawks v. Livermore, 157 Pa. Commw. 243, 629 A.2d 270 (Pa. Commw. 1993) (explaining that it is a fleeing suspect who initiates a chase without regard to safety of themselves or others. Therefore, the fleeing suspect should not be able to assert liability against the government resulting from his flight when he could have “accepted any unpleasantness of apprehension”). In fact, the Tort Claims Act includes subsection (d) which allows evidence to be admitted to demonstrate the wrongful conduct committed by the plaintiff. Therefore, it follows that, a plaintiff engaged in wrongful conduct must know they are fleeing the police in order to receive the benefit of fleeing from the police. Here, after engaging in his wrongful misconduct, appellee did not know he was running from the police in order to benefit from his flight. The appellant was driving an unmarked police vehicle in order investigate alleged drug dealers in the neighborhood. N.T. 9/28/2012 at 9-10. Despite the appellant’s intention to be unrecognizable, the appellant then failed to identify himself while pursuing the appellee. Consequently, the appellee believed that he was running from someone who was trying to rob him, not from a police officer. N.T. 9/27/2012 at 64-65. Hence, the appellee was not absconding from police arrest but was attempting to escape from harm. Based on these facts, the jury’s decision was consistent with the object to be obtained by the “in flight” or “fleeing apprehension” exception of the Tort Claims Act. It was reasonable for the jury to find that the appellee was not fleeing apprehension. As such, the jury’s verdict should be undisturbed and this court’s denial of appellants’ post trial motions should be affirmed.

Moreover, “[t]he purpose of a jury charge is to clarify the legal principles at issue. Thus, a jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations.” Rittenhouse v. Hanks, 2001 Pa. Super. 153, 777 A.2d 1113, 1118 (Pa. Super. 2001) (citations omitted). Jury charges are evaluated based on the charge in its entirety to determine whether an error was committed and whether the error was prejudicial. Reilly by Reilly v. Southeastern Pa. Transp., 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985) (citations omitted). Not only does the trial judge have the obligation of clarifying applicable principles of the law for the jury, but the trial judge also has the responsibility of assisting the jury in correctly applying those principles to the issues of the case. Archer v. Pennsylvania R. Co., 166 Pa. Super. 538, 541, 72 A.2d 609, 611 (1950).

As demonstrated above, in order to efficiently apply the “in flight” or “fleeing apprehension” exception of the Tort Claims Act, this court had to adequately assist the jury in determining whether the appellee’s claims fell within the exception. As discussed above, it was the jury’s responsibility to determine if the appellee was fleeing apprehension. In order to decide whether the appellee was fleeing the police, the jury had to determine whether the appellee knew the professional identity of the appellant in order to gain a benefit of the circumstance the appellee created. The verdict sheet was submitted to help the jury accurately apply the principles of law to determine if the appellee was fleeing apprehension. Ultimately, the jury determined that the appellee was not fleeing apprehension because he did not know that the appellant was a police officer. The jury’s verdict should not be disturbed and this court’s denial of appellants’ post trial motions should be upheld.

III. CONCLUSION

Appellants’ post trial motions should be rejected. This court’s evidentiary rulings and jury instructions were appropriate. The evidence supports the jury’s verdict and does not support appellant’s motion for JNOV nor new trial. The application of the “in flight” or “fleeing apprehension” exception to the Tort Claims Act was a question rightfully decided by the jury. The evidence supported a reasonable finding in favor of the appellee consistent with the object to be obtained by the statute. This court should be affirmed and the appellants’ appeal should be denied.

      . At this point, appellant allowed Officer McCauley out of the car to pursue one of the unknown buyers on foot while appellant pursued the appellee by car. N.T. 9/28/12 at 17,20.


author: NEALON, J.,

text:
    Shields v. Fafard

      C.P. of Lackawanna County,
    No. 09 CV 8636

      Neil F. MacDonald and John D. Nardone, for plaintiff.

      Wendy M. Schneider, for defendant.
    August 23, 2013
   NEALON, J.,

Following a verdict of $3,720.00 in this admitted liability case, plaintiff has filed a motion for a new trial on the ground that the defense medical witness was allegedly permitted to testify beyond the fair scope of his pre-trial reports, in contravention of Pa.R.C.P. 4003.5(c), by discussing an MRI report dated May 9, 2009, and an office note authored by plaintiff’s treating physician on November 8, 2008. The trial record reflects that plaintiff failed to timely object to the defense witness’s original testimony concerning those matters, and in the process, waived her objections to that testimony. In addition, the expert’s pre-trial reports did reference the treating physician’s diagnosis and treatment of plaintiff and the fact that an MRI was ordered in May 2009, as a result of which plaintiff was not unfairly surprised by the expert’s reasonable explanation of his written words. More importantly, since plaintiff was subsequently able to secure the medical testimony of an expert witness to rebut the defense expert’s opinions in that regard, she was not prejudiced by the admission of that testimony. Accordingly, her motion for a new will be denied.

I. FACTUAL BACKGROUND

(A) INTRODUCTION

This personal injury suit stems from an automobile accident which occurred on July 24,2008, when a vehicle operated by plaintiff, Marilynn Shields (“Shields”), was struck from behind by an automobile driven by defendant, Christina M. Fafard (“Fafard”). Fafard admitted liability for the accident, and a trial was conducted solely on the issue of damages. (Transcript of Proceedings (“T.P.”) on 4/2/13 at pp. 5-6,51-52). The parties presented conflicting medical testimony regarding the nature and extent of Shields’ injuries that were causally related to the accident, and since the defense medical expert witness conceded that the accident caused soft tissue sprains that resolved shortly thereafter, the jury was instructed that it “must at least award some damages for those undisputed injuries.” (T.P. 4/4/13 at p. 5).

Shields argued at trial that the accident caused a herniated disc at L4-5, required her to undergo a lumbar decompression discectomy, and resulted in permanent residual pain and disability. (T.P. 4/2/13 at pp. 24, 34, 36-39, 42-46; T.P. 4/4/13 at pp. 50-51, 63-69). She further asserted that since the L2-3 disc directly above her surgical site has been forced to bear a greater load following her surgery at the L3-4 and L4-5 levels, the L2-3 disc has become more stenotic and she has developed “next level syndrome.” (T.P. 4/4/13 at pp. 66-67). Shields sought to recover damages for unpaid, past medical expenses totaling $5,952.50, projected future medical expenses of $221,000.00, past and future loss of earnings in the amount of $42,000.00, and past and future non-economic loss. (T.P. 4/4/13 atpp. 69-80).

Fafard maintained that the accident caused minor cervical and lumbosacral sprains and an exacerbation of pre-existing degenerative disc disease, which resolved within six weeks of the accident. (T.P. 4/4/13 at pp. 19-20, 32). Relying upon Shields’ extensive prior treatment for low back pain, including two pre-accident magnetic resonance imaging (“MRI”) scans, Fafard argued that Shields’ disc injury, surgery and continued pain were attributable to her longstanding “pre-existing condition that has evolved overtime.” (T.P. 4/2/13 atpp. 53, 55; T.P. 4/4/13 at pp. 21-22, 25-31). Characterizing the accident as a “very low speed minor impact,” (T.P. 4/2/13 at p. 54), Fafard asserted that only “about $500.00” of Shields’ past medical expenses were attributable to her accident-related injuries, (T.P. 4/4/13 at p. 39), and maintained that no damages should be awarded for any alleged loss of earnings. {Id. at pp. 37-38). Fafard submitted that Shields should be “compensated for the injury that she sustained as a result of this accident, but only as a result of this accident, not because she has continuing problems that are a progression of her pre-existing condition.” {Id. at p. 39).

(B) PRIOR INJURIES AND TREATMENT

Shields admitted during her trial testimony that prior to her accident on July 24, 2008, she was involved in automobile accidents on July 7,2006, and January 4,2007, and injured her neck and low back in those two earlier accidents. (T.P. 4/2/13 at pp. 65-66, 125-126, 130-131). Even prior to the first accident on July 7, 2006, Shields was treating with a neurologist, Dr. Vithalbhai Dhaduk, for radiating low back pain that caused numbness and tingling in her legs. {Id. at pp. 128, 150). In March 2006, Dr. Dhaduk ordered an MRI scan and EMG/nerve conduction study of Shields’ low back, and also performed nerve block injections in her lumbar spine area. {Id. at pp. 128-129). The MRI that was conducted on March 11,2006, revealed broad based, right-sided disc bulging at L3-4 with mild canal stenosis and mild to moderate right-sided foraminal narrowing, broad based disc bulding at L4-5 with a small central disc protrusion causing moderate canal stenosis and mild bilateral foraminal narrowing, and advanced L5-S1 degenerative disc disease with spondylosis and facet hypertrophy resulting in mild to moderate bilateral foraminal narrowing. (Defendant’s exhibit no. 6).

Following her prior accidents in July 2006 and January 2007, Shields continued to treat with Dr. Dhaduk for radiating low back pain that caused numbness and tingling in her legs. (T.P. 4/2/13 atpp. 65-66,125-126,130-132). In May 2007, she sought treatment from another neurologist, Dr. Leroy J. Pelicci, who performed an additional EMG/ nerve conduction study. {Id. at pp. 132-133). On May 12, 2007, Shields had a second MRI scan performed, {Id. at pp. 135-135), which revealed “marked narrowing of the L3-L4 disc space” with “significant bilateral neural foraminal encroachment,” “prominent indentations upon the dural sac at L3-L4 and L4-L5 levels,” “concentric protrusion with a central extrusion indenting the dural sac” at the L4-L5 disc space causing a “mild to moderate degree of central canal stenosis,” and a “severely narrowed and desiccated” L5-S1 disc space with “severe degenerative changes of the intervertebral joints, as well as a concentric protrusion” that “extend[ed] within the neural foramina creating a mild degree of encroachment of the structures.” (Defendant’s exhibit no. 1). On April 15, 2008, Shields’ primary care physician diagnosed her with fibromyalgia. (T.P. 4/2/13 at pp. 136-137). Approximately one month before the automobile accident with Fafard, Shields fell and broke her left foot. (Id. at pp. 138, 154).

On July 24, 2008, Shields was involved in the subject accident with Fafard. There was no visible damage to either car, and when Fafard contacted the police to report the accident, “the police said they weren’t going to come because no one was injured.” (T.P. 4/3/13 at pp. 22-24). Shields drove her vehicle from the accident scene and did not seek immediate medical treatment. (T.P. 4/2/13 at p. 79). She eventually treated with her primary care physician four days later on July 28, 2008. (Id. at pp. 80-81).

(C) MEDICAL EVIDENCE

On August 1, 2008, Shields underwent a third MRI study which demonstrated degenerative “retrolisthesis,” “mild facet hypertrophy” and “a broad-based disc bulge” at L3-4 causing “moderate central canal stenosis,” “moderate bilateral facet hypertrophy” and “a broad-based disc bulge in addition to a central disc protrusion” at L4-5 producing “severe central canal stenosis,” and “mild bilateral facet hypertrophy” and “a broad-based disc bulge causing borderline canal narrowing” at L5-S1. (Defendant’s exhibit no. 2). The final impression of the interpreting radiologist was “multi-level central spinal stenosis, most severe at L4-5, related to disc material and posterior element hypertrophy.” (Id. at p. 2). During her subsequent examination by her primary care physician, Dr. Lisa Robertson, on November 10, 2008, Shields had a normal neurologic and musculoskeletal examination which revealed “[n]o spasm bilaterally,” “[n]o tenderness of the spine,” a full range of motion “with no pain,” and normal palpation of the spine and lower extremities. (Defendant’s exhibit no. 7).

During the trial, Shields introduced the expert testimony of her treating physiatrist, Lucian R Bednarz, M.D., and an orthopedic surgeon, Alan R Gillick, M.D., who performed her low back surgery on May 28, 2009. Although other physiatrists in Dr. Bednarz’s practice group began treating Shields on December 4, 2008, and provided physical therapy and injection treatment to her, she did not come under the care of Dr. Bednarz until November 22, 2011, more than two years after her surgeiy. (Trial deposition of Lucian R Bednarz, M.D., dated 4/1/13 at pp. 13, 26-29, 47). Dr. Bednarz testified regarding his treatment of Shields on November 22, 2011; January 23, 2012; March 5,2012; May 7,2012; December 18,2012; and March 18, 2013. (Id. atpp. 47-58).

Dr. Bednarz provided testimony relative to Shields’ third MRI scan on August 1, 2008, and her fourth MRI study on May 8, 2009, and contrasted the radiographic findings reflected on the 2008 MRI scan and the 2009 MRI scan. (Id. at pp. 30-31, 37, 42-46, 88-90). He opined that the MRI scan of May 8, 2009, revealed that the “disrupted disc at L4-5 progressed” and corroborated Shields’ “obvious changes clinically.” (Id. at p. 46). He also testified with respect to a fifth MRI scan that was conducted on March 27, 2013, and stated that it reflected the development of “next level syndrome” at the L2-L3 disc space due to increased stress upon that level which was causing greater central canal stenosis. (Id. at pp. 59-62).

Dr. Bednarz opined that Shields had a “traumatic disc herniation at L4-5,” and stated that all of her treatment by his practice group, Northeastern Rehabilitation Associates, was causally related to the automobile accident on July 24, 2008. (Id. at pp. 73, 83, 93-94). He further testified that Shields will require future medical treatment consisting of physical therapy, epidural steroid injections, and possible surgery at the L2-L3 disc level. (Id. at pp. 63-64, 67-73). On cross-examination, Fafard’s counsel interrogated Dr. Bednarz concerning Shields’ prior accidents and lumbar injuries, as well as her multiple MRI scans on March 11, 2006; May 12, 2007; August 1, 2008; and May 8, 2009. (Id. at pp. 75, 78-80, 82-84, 93). Dr. Bednarz testified that Shields’ herniated disc was established by radiographic proof of the “tear [of] the outer part of the disc,” but he conceded that he could not state when that tear occurred. (Id. at p. 83).

Dr. Gillick testified that he first examined Shields on May 13, 2009, following a referral by Dr. Bednarz’s partner, Dr. Paul Horchos. (Trial deposition of Alan P. Gillick, M.D., dated 2/22/13 at p. 11). Not unlike Dr. Bednarz, Dr. Gillick was questioned on direct examination about Shields’ 2008 and 2009 MRI scans. (Id. at pp. 14-15, 17-18). He testified that he diagnosed Shields with spinal stenosis at L3-4 and L4-5 with a right-sided disc herniation at L4-5, as a result of which he performed bilateral lumbar decompression surgery at the L3-4 and L4-5 disc levels, with a right-sided L4-5 discectomy. (Id. at pp. 19-20, 23-26). When he last examined Shields on July 6, 2009, she “was doing excellent” and stated that she “was virtually pain free,” and Dr. Gillick’s office note on that date indicated that his “prognosis was optimistic.” (Id. atpp. 29, 33, 71).

Based upon the history that Shields had provided to Dr. Gillick, his physical examination of her and his review of her post-accident diagnostic studies, Dr. Gillick opined that Shields’ herniated disc was caused by the automobile accident on July 24, 2008. (Id. at pp. 18-19, 23, 44-45, 61-62). On cross-examination, Dr. Gillick acknowledged that Shields had not advised him of her prior automobile accidents and low back injuries, nor was he ever provided with her medical treatment records which predate July 24, 2008. (Id. at pp. 47-52, 70-71). Fafard’s counsel also questioned Dr. Gillick extensively concerning the third MRI scan on August 1, 2008, and the fourth MRI scan on May 8, 2009. (Id. at pp. 54-64).

Fafard presented the expert testimony of Michael C. Raklewicz, M.D., who examined Shields pursuant to Pa.R.C.P. 4010. Without objection by Shields, Dr. Raklewicz testified regarding Shields’ MRI report dated May 8, 2009, and compared the findings reported on that study with the results of an earlier MRI scan on August 1, 2008. (Trial deposition of Michael C. Raklewicz, M.D., dated 2/27/13 at pp. 37-38). Dr. Raklewicz stated that unlike the 2008 MRI scan, the 2009 MRI study demonstrated a new finding comprised of a large disc herniation with extensive caudal migration. Specifically, Dr. Raklewicz testified as follows:

Q. And what does that [2009] MRI report of the lumbar spine indicate to you when you compare it to the condition reported in the August 2008 MRI report?
A. Well, at L3-4, again, there’s retrolisthesis, disc bulge eccentric, superimposed right foraminal and far lateral disc protrusion, severe central canal stenosis. At L3-4, there’s been a natural progression of the spinal stenosis, moderate to severe, moderate left neural foraminal narrowing. Again, that would appear to be just a progression of these other three MRIs.
However, at L4-5, there’s a radically different reading...., there is a large superimposed central right paracentral and right lateral disc extrusion demonstrating approximately 1.7 centimeters of caudal migration into the right lateral recess significantly compressing the thecal sac and severely compressing the right L5 nerve root. There is moderate to severe neural foraminal narrowing bilaterally.
So now, this is a completely different nature. This is a massive — the final reading is — a massive right paracentral lateral disc extrusion at L4-5 with extensive caudal migration. In other words, a disc has squirted out of the disc space and squirted out laterally and into the — compressing the thecal sac. This is completely different than these other three MRIs.
Q. Is that a new finding since the August 2008 MRI report?
A. Yes.
Q. Was that condition present immediately following the July 2008 automobile accident that we’re here about today?
A. Well, this MRI was taken — the August 1, 2008, MRI — was taken...within a month, certainly, of the auto accident. And, no, this is spinal stenosis, spinal lumbar spondylosis.
This MRI, which is ten months later, or thereabouts, after this MRI, and, what, ten months after the accident, now shows a massive right paracentral lateral disc extrusion with extensive caudal migration. That’s a completely — that’s a horse of a different color. Now you have a large herniated disc.

{Id. atpp. 38-40).

As noted above, Shields did not lodge a timely objection to any of the above-quoted testimony. However, after Dr. Raklewicz was then asked whether “the massive disc extrusion occurred as a result of the July 2008 automobile accident,” and Dr. Raklewicz replied “no, that’s not possible” because the “MRI immediately after the accident” in August 2008 did not reveal a large disc extrusion with compression on the L5 nerve root, counsel for Shields objected on the basis that “the testimony the doctor just provided is well beyond anything that’s in his report.” {Id. atpp. 40-41).

Dr. Raklewicz also testified concerning the November 2008 records of Shields’ treating physician, Dr. Lisa Robertson. Without objection, Dr. Raklewicz was questioned regarding the records of Dr. Robertson’s examination and treatment of Shields on November 10, 2008, less than four months after the accident on July 24, 2008. {Id. at pp. 44-45). Dr. Raklewicz testified that Dr. Robertson reported “a normal musculoskeletal exam,” which included “normal palpation, no tenderness to spine, no joint restrictions, normal lower extremities” and normal strength testing. {Id. at p. 45). However, when Dr. Raklewicz was then asked if Dr. Robertson “noted that [Shields] was without pain and able to move without any limitations as of November 10, 2008,” Shields objected to that question as “completely leading” and addressing a medical record that Dr. Raklewicz did not reference in his pre-trial reports. (Id. at pp. 45-47).

Dr. Raklewicz was subsequently asked whether it was “possible for the condition noted on the May 2009 MRI to have existed at the time that the November 2008 physical exam” was performed by Dr. Robertson, and Shields asserted “a standing objection” to any such testimony as being beyond the fair scope of Dr. Raklewicz’s pretrial reports. (Id. at pp. 48-49). Dr. Raklewicz replied that he could not “imagine a patient having normal range of motion and a normal examination or straight leg raising” test with “a massive right paracentral disc extrusion at L45,” which “would cause significant distress to a patient.” (Id. at pp. 49-50). Dr. Raklewicz testified that in the course of his experience as an orthopedic surgeon, he has never had a patient who presented with “such a massive extrusion or herniation,” but nonetheless had a normal examination and did not report pain. (Id. at p. 50).

Dr. Raklewicz opined that the accident caused a temporary “exacerbation of pre-existing...cervical and lumbar spondylosis,” which would have completely resolved within six weeks. (Id. at pp. 53, 55). He further stated that Shields’ medical treatment beyond that six week period is not related to the automobile accident, and instead is “secondary to her underlying lumbar and cervical spondylosis.” (Id. at pp. 54-55). Dr. Raklewicz likewise testified that Shields’ lumbar disc surgery was not in any way caused or accelerated by the accident. (Id. at p. 54). He never opined that Shields’ herniated disc or resulting surgery was attributable to a traumatic incident which occurred between the August 1,2008, MRI and the May 8, 2009, MRI.

(D) MOTIONS IN LIMINE

On the first day of trial, Fafard filed a motion in limine with respect to the impending trial testimony of Shields’ treating physiatrist, Dr. Bednarz, and Shields presented a motion in limine seeking to strike certain portions of the trial deposition that had been conducted of the defense medical witness, Dr. Raklewicz, on February 27, 2013. Fafard sought to bar Shields from questioning Dr. Bednarz concerning his office notes of December 18, 2012, and March 18, 2013, since Shields’ counsel did not provide those records to defense counsel until three business days before trial and well after the trial deposition of Dr. Raklewicz had been completed. (T.P. 4/1/13 at pp. 3-13, 30-34). Noting that Dr. Bednarz’s medical report dated April 10, 2012, merely opined that Shields suffered from a partial disability, Fafard argued that Dr. Bednarz’s new opinion in his belatedly produced records, stating that Shields was permanently disabled, greatly prejudiced the defense since their medical witness could not rebut that revised disability opinion. (Id. at pp. 16-17, 30-34). Although “troubled” by Shields’ failure to produce the office note of December 18, 2012, in advance of Dr. Raklewicz’s trial deposition, we denied the motion in limine on the ground that Dr. Raklewicz had adequately addressed Shields’ alleged disability by opining that her accident-related injuries had resolved within six weeks, i.e., Fafard had failed to demonstrate sufficient prejudice to warrant the exclusion of Dr. Bednarz’s proffered testimony. (Id. atpp. 38-40).

In Shields’ motion in limine, she sought to preclude certain testimony by Dr. Raklewicz as allegedly beyond the fair scope of his pre-trial reports, including any testimonial reference by him to the MRI scan of May 8, 2009, and Dr. Robertson’s office note of November 8, 2008. (Id. at pp. 43-48). As reflected in his above-quoted testimony, Dr. Raklewicz contrasted the findings on the 2008 MRI scan and the 2009 MRI study, and stated that the latter MRI revealed a new finding comprised of a “massive” L4-5 disc protrusion that compressed the thecal sac. Dr. Raklewicz also testified that the “large herniated disc” was not present on the 2008 MRI scan. (Dr. Raklewicz depo. at pp. 38-40). Since Shields did not raise a timely objection to that testimony during Dr. Raklewicz’s deposition, her objection was overruled as waived. (T.R 4/1/13 at pp. 48-52, 67-68, 86). However, inasmuch as she asserted a contemporaneous objection to the ensuing question posed to Dr. Raklewicz, the objection was sustained as beyond the fair scope of Dr. Raklewicz’s reports. (Id. at pp. 84-86).

With respect to Dr. Robertson’s record of November 8, 2008, that objection was overruled since Dr. Robertson’s records were referenced in Dr. Raklewicz’s report dated September 13,2012. (Id. atpp. 86-87). Furthermore, since Dr. Raklewicz had already testified, without objection, that the “massive” disc herniation was not present on the 2008 MRI, and he was permitted to discuss Dr. Robertson’s report of November 8, 2008, referencing Shields’ normal examination and absence of pain complaints, he was also allowed to opine that Shields’ examination would not have been normal on November 8, 2008, if she had a “massive disc extrusion at L4-5” on that date. (Id. at pp. 87-88). Three other objections that were raised to Dr. Raklewicz’s testimony were sustained and his responses were stricken.

(Id. atpp. 87, 88, 89).

(E) POST-TRIAL MOTION

In response to special verdict interrogatories in accordance with Pa.R.C.P. 223.3, the jury awarded $1,270.00 for past medical expenses; $1,000.00 for past loss of earnings; $1,200.00 for past and future pain, suffering, embarrassment and humiliation; $250.00 for past and future loss of enjoyment of life; and $0 for future medical expenses, future loss of earning capacity, and past and future disfigurement. (T.P. 4/4/13 atpp. 91-92). Shields filed a timely “Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1” seeking a new trial on the ground that Dr. Raklewicz was allegedly permitted to testify beyond the fair scope of his pre-trial reports by discussing the lumbar MRI scan of May 9, 2009, and Dr. Robertson’s clinic note of November 8, 2008. (Docket entry no. 27 at ¶¶4-37). A scheduling order was issued with respect to the transcription of the trial record, the filing of briefs, and the date of oral argument on Shields’ post-trial motion. (Docket entry no. 28). Following the completion of oral argument on July 15, 2013, this matter was submitted for a decision.

II. DISCUSSION

(A) STANDARD OF REVIEW

When considering a request for a new trial under Pa.R.C.P. 227.1(a)(1), the trial court must undertake a two-step process. See Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000). First, the trial court must decide whether one or more mistakes occurred at trial. Huber v. Etkin, 58 A.3d 772, 776 (Pa. Super. 2012), app. denied, 68 A.3d 909 (Pa. 2013); White v. Behlke, 2009 WL 1904102, at * 15 (Lacka. Co. 2009), aff’d, 15 A.3d 523 (Pa. Super. 2010), app. denied, 614 Pa. 689, 39 A.3d 991 (2012). Second, if the trial court concludes that a mistake occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. Lockley v. CSX Transportation, Inc., 5 A.3d 383, 388 (Pa. Super. 2010), app. denied, 613 Pa. 668, 34 A.3d 831 (2011). Since the harmless error doctrine underlies every decision to grant or deny a new trial, Huber, supra, “[a] new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court thathe or she has sufferedprejudice from the mistake.” Bennett v. A. T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 149-150 (Pa. Super. 2012) (quoting Harman, supra); Scranton Laminated Label. Inc. v. Florimonte, 2013 WL 1345805, at * 8 (Lacka. Co. 2013).

(B) Pa.R.C.P. 4003.5(c) OBJECTIONS

The sole basis for Shields’ request for a new trial relates to the admission of Dr. Raklewicz’s testimony pertaining to the 2009 MRI scan and Dr. Robertson’s office note of November 8, 2008. “A trial court is vested with wide discretion in deciding whether to allow the admission of expert testimony into evidence,” Daddona v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006), app. denied, 589 Pa. 732, 909 A.2d 306 (2006), and its ruling regarding the admission or exclusion of evidence will only be disturbed for an abuse of discretion or an error of law. Ferko-Fox v. Fox. 68 A.3d 917, 928 (Pa. Super. 2013); Fazio v. Guardian Life Ins. Co. of America, 62 A.3d 396, 412 (Pa. Super. 2012). Furthermore, even if evidence is erroneously admitted, “the erroneous admission of evidence is not considered ground for a new trial where no harm or prejudice has resulted.” Pittsburgh Const Co. v. Griffith, 834 A.2d 572, 585 (Pa. Super. 2003), app. denied, 578 Pa. 701, 852 A.2d 313 (2004).

Dr. Raklewicz authored two pre-trial reports: one dated February 16, 2009, based upon his review of Shields’ medical records; and a second report dated September 13, 2012, following his examination of Shields on September 10, 2012. (See Defendant’s exhibit nos. 4-5). In his first report of February 16, 2009, Dr. Raklewicz reviewed Shields’ pre-accident injuries and treatment, including her prior MRI studies. (Defendant’s exhibit no. 4 at pp. 1-2). He concluded that prior to the accident on July 24, 2008, Shields “had very severe cervical and lumbar spondylosis that caused her difficulties at work and that the patient required treatment for” in 2005, 2006, 2007 and 2008. (Id. at p. 2). He stated in his initial report that “clearly the auto accidents of July 6, 2006, January 4, 2007, and July 24, 2008, did not cause cervical spondylosis and lumbar spondylosis,” and at most caused those conditions to be exacerbated “for up to six weeks.” (Id. at p. 3). Dr. Raklewicz further concluded that Shields’ “treatment of multiple injections and physical therapy for several years is not related to her current auto accident,” and that the only causally related medical care “would have [been] pain control, rest and minor physical therapy for up to six weeks after each accident.” (Id.).

In his second report, Dr. Raklewicz discussed the history that he obtained from Shields, his physical examination of her, his review of her pre-accident and post-accident medical records, and his conclusions concerning her accident-related injuries. Dr. Raklewicz referenced Shields’ treatment by “Dr. Lisa Robertson” who “referred her to a pain specialist at Northeast Rehab.” (Defendant’s exhibit no. 5 at p. 2). He noted that Shields was diagnosed with fibromyalgia “two years ago by her family physician, Dr. Lisa Robertson,” and stated that her “current treatment at this time is by Dr. Robertson and evidently, Dr. Bednarz.” (Id.). Dr. Raklewicz also discussed the 2009 clinical “notes from Northeast Rehabilitation Associates,” and stated in that same paragraph that “an MRI showed stenosis and disc bulging.” (Id. at p. 6).

Dr. Raklewicz indicated in his report that Shields “was seen back on 5/7/2009 again” by Northeast Rehabilitation Associates, “was given an appointment with Dr. Gillick for spinal stenosis and possible disc surgery, and another MRI was ordered.” (Id.). However, his second report did not specifically identify the results of that MRI scan on May 9, 2009. Dr. Raklewicz opined that the accident on July 24, 2008, “could’ve caused a lumbar or cervical sprain, which is clearly an exacerbation of the pre-existing injury and a self-limiting process that I would not think would cause additional pain for more than six weeks.” (Id.). Thus, he concluded his report by stating that “I do not feel that the automobile accident of July 24, 2008, caused or accelerated Ms. Shields’ need for surgery, nor any ongoing, current treatment for her complaints.” Id.

Shields contends that it was reversible error to permit Dr. Raklewicz to testify about the 2009 MRI study and Dr. Robertson’s record of November 8, 2008, since those matters were not addressed in his pre-trial reports. However, as reflected in Section 1(C) above, Dr. Raklewicz testified, without objection, regarding the findings on the 2008 and 2009 MRI scans, the “radically different” finding on the 2009 MRI scan consisting of “a massive right paracentral lateral disc extrusion at L4-5 with extensive caudal migration,” and the absence of that “large herniated disc” on the 2008 MRI scan that was conducted shortly following the accident. (Dr. Raklewicz depo. at p. 38, line 18 to p. 40, line 6). Similarly, Dr. Raklewicz testified concerning Dr. Robertson’s records and her notation on November 8, 2008, that Shields’ musculoskeletal examination was completely normal on that date. {Id. at p. 44, line 16 to p. 45, line 16). Once again, no timely objection was raised to that line of questioning. {Id.).

To secure post-trial relief based upon the erroneous admission of expert testimony, the party seeking a new trial must have preserved that evidentiary issue by making a contemporaneous objection to the expert’s testimony at trial. See McEwing v. Lititz Mutual Ins. Co., 2013 WL 3378977, at * 8 (Pa. Super. 2013). “It is axiomatic that, in order to preserve an issue for review, litigants must make timely and specific objections during trial” to the expert witness testimony. In re R.P., 957 A.2d 1205, 1222 (Pa. Super. 2008). If trial counsel fails to lodge a timely, specific objection during the trial, the purported error is waived. See Ludmer v. Nernberg, 433 Pa. Super. 316, 330, 640 A.2d 939, 946 (1994), app. denied, 541 Pa. 652, 664 A.2d 542 (1995), cert. denied, 517 U.S. 1220 (1996). Since Shields did not assert a timely objection to Dr. Raklewicz’s foregoing testimony relating to the 2009 MRI scan and Dr. Robertson’s note of November 8,2008, she has waived her objection to that testimony. Moreover, inasmuch as Dr. Raklewicz did in fact reference Dr. Robertson’s treatment of Shields in his report of September 13,2012, his discussion of her examination of Shields was not beyond the fair scope of his pre-trial reports.

In addition, Shields contends that the following testimony by Dr. Raklewicz relating to the 2009 MRI scan should have been precluded under Pa.R.C.P. 4003.5(c):

Q. If you take into consideration Ms. Shields’ family doctor note of November 2008 with the condition that is described in the May — May 8, 2009, MRI of the lumbar spine, is it possible for the condition noted in the May 2009 MRI to have existed at the time the November 2008 physical exam was made?
A. The question is, would that exam have been normal with this MRI, a massive right paracentral disc extrusion at L4-5, with extensive caudal migration. Massive herniated discs at any level, let alone 4-5, with significant thecal sac and severe compression of the right L5 nerve root, I can’t imagine a patient having normal range of motion and a normal examination or straight leg raising, for that matter. That, I think, would cause significant distress to a patient.
Q. In your 25 years of experience doing spinal surgery, and your over 25 years experience — over 30 years experience in the orthopedic field, have you ever — have you ever had a patient that would have such a massive extrusion or herniation present that would be able to withstand an examination and show normal, within limits, and no pain?

A. In my experience, no.

(Dr. Raklewicz depo. at p. 48, lines 6 to 13 and p. 49, line 18 to p. 50, line 11). Shields raised a timely objection to that testimony on the ground that it was beyond the fair scope of Dr. Raklewicz’s pre-trial reports. (Id. at p. 48, line 14 to p. 49, line 13). Shields submits in her post-trial motion that Dr. Raklewicz was improperly allowed to opine that Shields “sustained the lumbar disc herniation after the August 1, 2008 MRI but before the May 8, 2009 MRI, and [that] the surgery performed by Dr. Gillick was necessitated by an intervening traumatic event.” (Docket entry no. 27 at ¶6).

If an expert witness has authored a pre-trial report as a discovery response under Pa.R.C.P. 4003.5(a) (1), “the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her separate report, or supplement thereto.” Pa.R.C.P.4003.5(c). “No hard and fast rule exists for determining when a particular expert’s testimony exceeds the fair scope of his or her pre-trial report,” Woodard v. Chatterjee, 827 A.2d 433, 442 (Pa. Super. 2003), and in making that determination, “the accent is on the word ‘fair.’” Callahan v. National Railroad Passenger Corp., 972 A.2d 866, 877 (Pa. Super. 2009), app. denied, 608 Pa. 651, 12 A.3d 750(2010). The use of the phrase “fair scope” in Rule 4003.5(c) contemplates “a reasonable explanation or even an enlargement of the expert’s written words.” Daddona, 891 A.2d at 806 (quoting Hickman v. Fruehauf Corp., 386 Pa. Super. 455, 459, 563 A.2d 155, 157 (1989), app. denied, 528 Pa. 611, 596 A.2d 151 (1991)).

“The expert is not required to give a basic primer on medicine in his or her report or draft it for a complete neophyte in the field.” Schaaf v. Kaufman, 850 A.2d 655, 667 (Pa. Super. 2004), app. denied, 582 Pa. 719, 872 A.2d 1200 (2005). The question presented by a “fair scope” challenge “is whether, under the circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.” Callahan, supra (quoting Sutherland v. Monongahela Valley Hospital, 856 A.2d 55, 59 (Pa. Super. 2004)). Thus, “a trial court must determine whether the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.” Daddona, 891 A.2d at 805. “A fully realized defense includes the presentation of an expert witness to rebut the evidence offered by the opposing party.” Schweikert v. St. Luke’s Hospital, 886 A.2d 265, 268 (Pa. Super. 2005).

Due to the lack of a timely objection, Dr. Raklewicz was properly permitted to testify about the “massive” disc herniation that was present on the 2009 MRI scan, but not on the 2008 MRI study, (Dr. Racklewicz depo. at p. 37, line 18 to p. 40, line 6), as well as regarding Dr. Robertson’s normal musculoskeletal examination of Shields on November 10, 2008. (Id. at p. 44, line 16 to p. 45, line 16). His subsequent testimony to the effect that a patient with a massive disc herniation would not have a normal physical examination was simply a logical extension of earlier medical testimony that was admitted without objection. Additionally, Dr. Raklewicz’s report of September 13,2012, expressly referenced Dr. Robertson’s treatment and the fact that another MRI scan was ordered in May 2009. For that reason, the two questions challenged by Shields represented “a reasonable explanation or even an enlargement” of Dr. Raklewicz’s “written words” in his report.

The trial record reflects that counsel for both parties questioned Dr. Gillick and Dr. Bednarz at length concerning the findings on the 2008 and 2009 MRI scans. Shields is hard pressed to argue that she was surprised and unfairly prejudiced by Dr. Raklewicz’s discussion of those MRI studies and Dr. Robertson’s normal examination in November 2008. Contrary to Shields’ contention, Dr. Raklewicz did not opine or suggest that “an intervening traumatic event” between August 1,2008, and May 8,2009, caused Shields’ herniated disc. Rather, he consistently stated that Shields’ current complaints were attributable to her pre-existing degenerative condition which had naturally progressed irrespective of the accident.

Nor has Shields demonstrated that she suffered prejudice as a result of Dr. Raklewicz’s foregoing testimony. If the objecting party is able to prepare and present a rebuttal witness to challenge the evidence which purportedly exceeded the fair scope of pre-trial reports, the requisite prejudice simply does not exist. See Daddona, supra\ Schweikert, supra. Shields conducted the trial deposition of Dr. Bednarz after the trial deposition of Dr. Raklewicz and the ruling denying Shields’ motion in limine. Dr. Bednarz addressed the 2008 and 2009 MRI scans and the findings of Shields’ treating physicians in his testimony on April 1, 2013. As a consequence, Shields was capable of presenting an expert witness to rebut Dr. Raklewicz’s opinions. Therefore, she was not prejudiced by Dr. Raklewicz’s testimony and is not entitled to a new trial based upon the admission of that testimony. See Whitaker v. Frankford Hospital of City of Philadelphia, 984 A.2d 512, 522 (Pa. Super. 2009) (“Therefore, the opposing party must be prejudiced as a result of the testimony going beyond the fair scope of the expert’s report before admission of the testimony is considered reversible error.”). An appropriate order follows.

ORDER

And now, this 23rd day of August, 2013, upon consideration of “Plaintiff’s Motion for Post-Trial Relief Pursuant to Pa.R.C.P. 227.1,” the memoranda of law submitted by the parties, and the oral argument of counsel on July 15, 2013, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. Plaintiff’s motion for post-trial relief pursuant to Pa.R.C.P. 227.1 is denied; and

2. The Clerk of Judicial Records is directed to enter judgment in favor of plaintiff, Marilynn Shields, and against defendant, Christina M. Fafard, in the amount of $3,720.00.

      . One week later, she fell down stairs on August 4, 2008, and broke her right ankle. (Id. atpp. 82-83, 138-140).

      . Shields did not file a motion requesting delay damages under Pa.R.C.P. 238, and thereby waived her right to any prejudgment interest.


author: MOTTO, P.J,

text:
    Dodd v. Wal-Mart Stores East, L.P.

      C.P. of Lawrence County,
    No. 10121 of 2013, C.A.

      James W. Manolis, for plaintiff.

      Philip J. Sbrolla, for defendant.

      August 28, 2013
   MOTTO, P.J,

Before the court for disposition are the preliminary objections of the defendant Wal-Mart Stores East, L.P., hereinafter “Wal-Mart” to the complaint of the plaintiff, Franklin J. Dodd, hereinafter “Dodd”. Wal-Mart’s preliminary objections are in the nature of a demurrer and assert that the complaint fails to state a cause of action in defamation because the conduct and words attributed in the complaint to Wal-Mart’s sales associate relative to Dodd’s efforts to purchase a firearm at Wal-Mart are not actionable as a matter of law.

The complaint alleges that on September 15, 2012, Dodd was an invitee and patron of Wal-Mart at the WalMart Supercenter Store in Union Township, Lawrence County, Pennsylvania, and was there with the intent to inspect and consider the purchase of a firearm advertised for sale by Wal-Mart. Dodd had with him a close friend who is a gun enthusiast and knowledgeable with respect to firearms, with whom Dodd consulted and intended to rely upon in deciding whether to purchase the firearm. Dodd and his friend inspected the firearm offered for sale by Wal-Mart and discussed its attributes. Dodd decided to purchase the firearm. Dodd was then directed to begin the application process for a background check which was required in order to purchase the firearm. After Dodd completed the application process, the clerk that directed Dodd to prepare the application repeatedly advised him that she was “going to stop the sale.” Dodd was in fact either approved for the sale after having submitted the background check application, or would have been approved if considered by the authority to whom it was to be submitted in the event that it was not submitted. Dodd was not given any explanation by any clerk or employee of Wal-Mart of any reason why the firearm would not be sold to Dodd. Wal-Mart had no reason to believe that Dodd was not qualified or eligible to purchase the firearm, or that he intended to engage in any activity that would prohibit him from exercising his constitutional right to purchase a firearm and bear arms. Wal-Mart had absolutely no justifiable or lawful reason to deny Dodd’s request to purchase the firearm and enjoy his constitutional right to bear arms. Wal-Mart had no credible or legal justification to support the decision of the clerk who “stopped the sale.” Defendant’s friend and several members of the general public heard and witnessed the events described in the complaint. Dodd alleges the conduct and statements of Wal-Mart constitute an implicit communication that Dodd is not qualified to purchase a firearm and that he has an uncomplimentary history that disqualifies him from the right to purchase a firearm and bear arms, or that he intends to engage in illegal activity, and that such implications are false. Dodd alleges that the conduct and statements of Wal-Mart as aforesaid have impaired the reputation and good character of Dodd; that the conduct and statements of Wal-Mart were careless, negligent and reckless; and that Wal-Mart’s actions in defaming Dodd were intentional or engaged in with reckless regard for Dodd and were thus outrageous, permitting an award of punitive damages. Dodd further claims to have suffered embarrassment and humiliation, anxiety, damage to his reputation, pain and suffering due to insult to his nervous system and mental anguish and distress.

Wal-Mart argues that the determination as to whether a challenged statement is defamatory is a question of law for the court to decide. Wal-Mart’s position is that given the highly regulated nature of firearm transactions and public policy considerations associated therewith, the statement allegedly by the Wal-Mart sales associate can, at best, be construed to amount to embarrassment or annoyance — not defamation and certainly not actionable. Wal-Mart disputes Dodd’s position that the statement “going to stop the sale” implies that Dodd is unfit to own a firearm, as the sale could have been terminated for a number of reasons that have nothing to do with Dodd’s ability to own or possess a firearm such as a purchaser’s credit card being declined, or the backup check system not working at the time of the sale.

The standard which the court must apply in addressing Wal-Mart’s preliminary objections is set forth in MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 124, 674 A.2d 1050, 1054 (1996) as follows:

In an action for defamation, it is the Court’s duty to determine if the publication is capable of the defamatory meaning ascribed to it by the party bringing suit. Baker v. Lafayette College, 516 Pa. 291, 296, 532 A.2d 399, 402 (1987). In order to sustain an allegation of libel, the burden is on the complaining party to establish that the publication being challenged is defamatory. Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 464, 442 A.2d 213, 215 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). If the Court concludes that the publication is not capable of defamatory meaning, the case should be dismissed. Id. at 464-65, 442 A.2d at 215-16.
An appellate court’s scope of review where there has been a challenge to the sustaining of preliminary objections in the nature of a demurrer was set forth by this Court in Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983). We stated that [a] 11 material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review.] The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Id. at 244, 465 A.2d at 1232-33 (citations omitted).

The court here can grant the defendant’s preliminary objections only if it determines that the statement complained of is not capable of being defamatory as amatter of law. In assessing whether a publication is defamatory, the court must determine if the communication is capable of being interpreted in a manner that tends so to harm the reputation of the complaining party as to lower him in the estimation of the community or to deter a third person from association or dealing with him. Birl v. Philadelphia Electric Co., 402 Pa. 297, 303, 167 A.2d 472, 475 (1960).

The circumstances here alleged are that after Dodd completed his background check application, the WalMart employee announced that she was stopping the sale of the firearm. The implication given by this statement, in the context in which it was made, is that Dodd was not a person eligible to purchase a firearm pursuant to the provisions of the Pennsylvania Uniform Firearms Act, 18 Pa.C.S.A. §6101, et. seq. Pursuant to §6111 of the Firearms Act, a licensed dealer is prohibited from selling a firearm to another person if the potential buyer is a person prohibited from possessing a firearm for reasons set forth in §6105 of the Firearms Act. Persons who are prohibited from purchasing or possessing a firearm include those who have been convicted of the enumerated offenses set forth in §6105(d), aperson who is a fugitive from justice, aperson convicted of an offense under the Controlled Substance, Drug Device and cosmetic Act, a person who has been convicted of driving under the influence of alcohol or a controlled substance on three or more separate occasions within a five year period, aperson who has been adjudicated as an incompetent or has been involuntarily committed to a mental institution, a person who, being an alien, is illegally or unlawfully in the United States, a person who is the subject of an act of protection from abuse order, a person adjudicated delinquent under the Juvenile Act as the result of conduct, which if committed an adult, would constitute one of the offenses described in §6105(c)(7) or (8). Thus, accepting all the allegations of the complaint as true, as the court is required to do, a trier of fact could conclude that one of the foregoing disqualifying factors applied to Dodd. Any one of these disqualifying factors are such that a publication of the same as being attributable to Dodd would tend to harm his reputation or lower him in the estimation of the community or could also be found to have the effect of deterring third persons from associating or dealing with him. Thus, the statements attributed to the Wal-Mart employee under the circumstances described in the complaint are capable of defamatory meaning, and, more pointedly, the court cannot conclude as a matter of law that the alleged publication is not capable of being defamatory.

The defendant argues the sale of the firearm could have been terminated for a number of reasons that have nothing to do with plaintiff’s ability to own or possess a firearm. However, if a statement is capable of being construed as an innocent one or a defamatory one, it is for the jury to decide how it was understood by the recipients of the communication. MacElree v. Philadelphia Newspapers, Inc., 544 Pa. at 127, 674 A.2d at 1055 (1996). where there is doubt as to the defamatory nature of the language complained of, a demurrer must be overruled. Id.

The court here concludes that accepting as true all well pleaded material facts in the complaint and all reasonably deducible inferences therefrom, defendant’s preliminary objections in the nature of a demurrer must be denied because there is doubt as to the defamatory nature of the challenged statement and the court cannot conclude as a matter of law that the statements are not defamatory in the context in which they were alleged to have been made.

Although Dodd filed preliminary objections to the preliminary objections of Wal-Mart, because the court has ruled in Dodd’s favor on the merits of Wal-Mart’s preliminary objections, it is not necessary to address Dodd’s preliminary objections.

For the reasons above set forth, the court will enter a separate order overruling the Wal-Mart’s preliminary objections to the complaint.

ORDER OF COURT

And now, this 28th day of August, 2013, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s preliminary objections to the plaintiff’s complaint are denied and overruled. The defendant shall file an answer to the complaint within twenty (20) days of the date this order is docketed.