text:
    Pocono Community Theater v. Monroe County Board of Assessment Appeals

      C.P. of Monroe County,
    No. 2530 CV 2014

      Kenneth R. Bachman, for petitioner.

      Jeffrey A. Durney, for respondent.
    April 7, 2015
   ZULICK, J.,

This matter is before the court on plaintiff Pocono Community Theater’s (PCT) motion for post-trial relief. PCT filed an appeal in this court on April 2,2014 from the March 7,2014 decision of the Monroe County Board of Assessment Appeals (Board) denying PCT’s application for a real estate tax exemption pursuant to 72 P.S. § 5453.202. A hearing on the PCT appeal was held on September 30, 2014. The appeal was denied on December 31, 2014.

PCT filed a motion for post-trial relief on January 9, 2015, requesting the court to reconsider its order of December 31, 2014, arguing that the theater relieved a government burden by providing independent films for the community, that the board did not meet its burden of proof under the Purely Public Charity Act, 10 P.S.§371 et seq., and that PCT’s equal protection rights were violated under the 14th amendment to the US Constitution. Both parties filed briefs, and oral arguments were held in this court on March 2, 2015.

DISCUSSION

Did PCT meet the HUP test for tax exempt status?

The court’s decision denying PCT’s request for a tax exemption turned on two points. The first was that although PCT advances a charitable purpose with some of its offerings, these were a small portion of its activities. It is primarily in the business of offering movies to its members and the public. The actual number of educational events or events for a charitable purpose were fewer than 10 per year.

The second point was that presenting movies and entertainment or occasionally offering its stages to nonprofits is not a charitable undertaking that relieves the government of a burden.

PCT argues that the court’s conclusion was wrong; it does relieve the government of a burden and it qualifies as a charity under Hospital Utilization Project v. Com., 487 A.2d 1306 (Pa. 1985) (hereinafter HUP). An institution seeking a real estate tax exemption bears a heavy burden of establishing its entitlement to such an exemption. Church of the Overcomer v. Delaware County Board of Assessment Appeals, 18 A.3d 386, 391 (Pa. Cmwlth. 2011). Entitlement to a tax exemption is a mixed question of law and fact. Id. at 388-89 n. 1.

For real estate tax exemption as a purely public charity, the petitioner must first meet the five-part test detailed in Hospital Utilization Project v. Com., 487 A.2d 1306 (Pa. 1985) (hereinafter HUP) in order to qualify under the Pennsylvania Constitution. After meeting the HUP test, the petitioner must meet the test under the Purely Public Charity Act, 10P.S. § 371 et seq. Under HUP, an entity must possess all of the following characteristics:

(a) Advances a charitable purpose;
(b) Donates or renders gratuitously a substantial portion of its services;
(c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity;
(d) Relieves the government of some of its burden; and
(e) Operates entirely free from private profit motive.

Hospital Utilization Project, 487 A.2d at 1317.

PCT screens studio, independent and/or art house films nearly every day, and also hosts and supports a variety of community events, including film camps for children and educational programs for high school students, East Stroudsburg University students, the Stroud Area Regional Police Department and the Pocono Medical Center. See NT 17, Petitioner’s Exhibit 12. The court found though that the actual number of educational events or events for charitable causes offered by PCT were small in number.

The bylaws of PCT state “the purposes for which this non-profit corporation is organized is to provide independent and art films offering a unique cinematic experience that enlivens the human spirit and promotes learning; while promoting local visual artists on the stage and in exhibition.” Petitioner’s Exhibit 13.

The court decided that PCT failed to meet the fourth prong of the HUP test:

The board argues that PCT’s activities do not relieve the government of a burden, because there is no obligation on the part of the government to show films or provide film camps. See Camp Hachshara Moshava of New York v. Wayne County Board, 47 A.3d 1271, (Pa. Cmwlth. 2012), appeal denied, 69 A.3d 603 (Pa. 2013). The Board is correct as far as PCT’s entertainment offerings are concerned, which is the bulk of its programs. Although PCT has provided educational programs for high school students, ESU students, the Stroud Area Regional Police Department and the Pocono Medical Center, these programs are not a significant portion of PCT’s efforts. Clearly, PCT focuses first on its movie theater business and secondly on the use of films and its theaters for general use by non-profit community groups. Supporting local nonprofit groups is an honorable undertaking, but it is not relieving the government of its burden in a significant way. The government has no obligation to present entertainment, and it likewise has no obligation to support non-profit fundraising.

Opinion, December 31, 2014 at 12.

PCT argues that the tax exemption of Longwood Gardens in Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 714 A.2d 397 (Pa. 1998) as well as the Pennsylvania government’s financial support of the arts indicate that arts facilities should be tax exempt under the constitutional test. Longwood Gardens’ activities, the subject of Unionville-Chadds Ford, however, are distinguishable from PCT’s. The supreme court described Longwood Gardens as follows:

Longwood is a very large and world-renowned public garden located in Chester County, just outside of the Philadelphia area. It comprises 1,050 acres, approximately 422 of which are within the appellant school district. Pierre du Pont acquired Longwood in the early 1900s and developed its then-existing arboretum into extensive park-like gardens.... More than 800,000 visitors per year make use of the gardens....
Longwood features an expansive arboretum where trees and shrubs are cultivated, immaculate flower gardens, collections of rare plants, a huge conservatory and greenhouse complex, architectural displays, a water garden, fountains, an open air theater for the performing arts, managed meadow and forest lands, wetlands, wildlife habitats, walking trails, picnic areas, and a variety of educational and research facilities. Included in the latter are an auditorium, classrooms, a library, exhibit areas, and scientific facilities....

Unionville-Chadds Ford Sch. Dist, 714 A.2d at 398.

The Unionville-Chadds Ford case is unique among cases applying the real estate tax exemption to facilities that promote the arts, and Longwood Gardens itself is a unique facility. Longwood Gardens provides a combination of scenic, artistic, educational, and research facilities that exempted it from real estate taxation. The supreme court further stated,

In short, the government has long provided support for public parks and recreation areas as well as for cultural institutions, including museums, libraries, etc. Longwood’s public park and cultural facilities fall clearly within the scope of burdens that are routinely shouldered by government. Hence, this element of the HUP test was properly found to be met. Id. at 401.

The supreme court emphasized that the entertainment facilities were one among many services provided by Longwood Gardens, and it was the combination of these facilities that determined Longwood Gardens’ status as a purely public charity.

While PCT provides a combination of community services and arts and film programs, PCT’s movie theater business is its primary focus. PCT’s community services were not substantial enough to meet the HUP test, and there is no indication in the case law that facilities primarily providing entertainment are entitled to an exemption from real estate taxes. PCT does not meet the fourth prong of the HUP test.

Purely Public Charity Act

PCT next argues that the board should have had the burden of proof under the Purely Public Charity Act, 10 P.S. Section 371 et seq. rather than PCT, and that PCT met the requirements under the Act. However, as stated in the opinion, this court has decided that PCT did not meet the HUP constitutional test, and thus an examination of the statutory test was not necessary for the decision itself. Mestivah Eitz Chaim of Bobov, Inc., v. Pike County Board of Assessment Appeals, 44 A.3d 3 (Pa. 2012).

PCT’s brief presents a comprehensive review of reasons why it qualifies for a tax exemption under the act, beginning with the argument that it is entitled to the benefit of a rebuttable presumption of entitlement. This required PCT’s introduction of a “valid exemption from sales tax under section 204(10) of the Tax Reform Code of 1971.” PCT’s brief page 8. PCT offers this evidence in Appendix 1 of its brief. However, it was not introduced at trial, and thus cannot be considered for post-trial motion purposes.

Likewise, part of PCT’s burden at trial was to offer its articles of incorporation, showing that they qualify under 10 P.S. Section 375 (c)(4). PCT has attached articles to its brief, but that does not assist the court when they were not offered as part of the trial record.

Finally, PCT has attached an income statement as Appendix III of its brief. This summary of income and expenses may have been important during trial if PCT’s qualification under the act had been the deciding factor in the case. However, the board would then have had the right to develop its response to the exhibit through cross examination or rebuttal. The information presented in the chart is not decisive of the case in any event, because of the court’s finding that the service presented by PCT, screening movies, is not a charitable undertaking that relieves the government of a burden.

Equal Protection

Finally, PCT argues that the court denied the theater equal protection under the 14th Amendment of the US Constitution, as similar theaters in Northampton County and Lehigh County have been granted real estate tax exemptions. PCT, however, did not provide any evidence of these theaters’ offerings, operations or tax status at trial, and this constitutional argument was not raised at trial. Thus, the court has no means by which to assess its merits.

ORDER

And now, this 7th day of April, 2015, following consideration of the parties’ briefs and arguments, plaintiff Pocono Community Theater’s motion for post-trial relief is denied.


source: Caselaw Access Project

author: WILLIAMSON, J.,

license: Public Domain

text:
    Achilles Medical P.C. v. Carter

      C.P. of Monroe County,
    No. 6059 CIVIL 2014

      Alan R. Mege, for plaintiff.

      Margaurita Carter, pro se defendant.

      April 17, 2015
   WILLIAMSON, J.,

This matter comes before us on preliminary objections filed by Achilles Medical P.C. (hereafter “plaintiff’) on February 2, 2015 in response to the answer to plaintiff’s complaint filed by Margaurita Carter (hereafter “defendant”) on January 27, 2015.

Background

Plaintiff filed the underlying complaint against defendant on July 23, 2014. In the complaint, plaintiff alleges that they contracted with defendant on November 22, 2011. The contract was that plaintiff would provide medical services to defendant and defendant would pay plaintiff for these medical services. On September 26, 2013, plaintiff mailed defendant an invoice and defendant allegedly failed to respond. Plaintiff states, as of March 17, 2014, the balance due to plaintiff from defendant is $5,665 plus costs and interest. Plaintiff’s complaint against defendant has one count for breach of contract, one count for account stated, and one count for Quantum Meruit.

Defendant first filed an answer to plaintiff’s complaint on August 25, 2014. Plaintiff then filed preliminary objections to the answer. The court sustained plaintiff’s preliminary objections to defendant’s answer on January 7, 2015 and ordered the defendant to file an amended answer within twenty (20) days. Defendant filed an amended answer to plaintiff’s complaint on January 27, 2015. Plaintiff then filed preliminary objections to defendant’s answer on February 2, 2015. In defendant’s answer to plaintiff’s complaint, defendant denied receiving any medical benefits or invoice regarding debt from plaintiff. The matter was heard at oral argument on April 6, 2015. Defendant filed an amended answer to plaintiff’s complaint on April 2, 2015, which was just prior to oral argument, but after the time in which an amended pleading can be automatically filed.

Argument

Plaintiff’s first preliminary objection is that defendant’s answer is in violation of Pa.R.C.P. 1024 because it contains averments of fact not contained in the record along with not containing a verification required by the aforementioned rule. Plaintiff’s second preliminary objection is that defendant’s answer is in violation of Pa.R.C.P. 1029(a) because it does not admit or deny the allegations contained in plaintiff’s complaint. Plaintiff’s third preliminary objection is that defendant’s answer is in violation of Pa.R.C.P. 1022 because it includes paragraphs that each contain multiple allegations. Plaintiff’s fourth preliminary objection is that defendant’s answer is in violation of Pa.R.C.P. 1025 because it fails to provide an address or phone number for defendant.

“Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” Haun v. Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011). Moreover, “preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Id. Finally, “if any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.” Id.

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Just prior to oral argument in front of this court, defendant filed an amended answer in order to correct the defects cited in plaintiff’s preliminary objections. The issue then becomes whether this court should accept defendant’s amended answer as it was filed more than twenty days after plaintiff filed the preliminary objections.

“A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading.” Pa.R.C.P. No. 1033. “The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense.” Id. “An amendment may be made to conform the pleading to the evidence offered or admitted.” Id.

“A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.” Pa.R.C.P. No. 1028. “The right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully.” Otto v. Am. Mut. Ins. Co., 482 Pa. 202, 205, 393 A.2d 450, 451 (1978).

“A decision to permit an amendment to a pleading is a matter committed to the discretion of the trial court. Although amendments are liberally allowed by Pennsylvania courts, “Pennsylvania appellate courts have repeatedly ruled that an amendment will not be permitted where it is against a positive rule of law, or where the amendment will surprise or prejudice the opposing party.” Capobianchi v. BIC Corp., 666 A.2d 344, 346 (1995). The prejudice, however, “must be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party.” Id. “The timeliness of the request to amend is a factor to be considered, but it is to be considered only insofar as it presents a question of prejudice to the opposing party, as by loss of witnesses or eleventh hour surprise.” Id. at 347.

Since defendant did not file the amended answer within twenty (20) days of defendant’s preliminary objections, it is up to this court’s discretion whether to allow the amendment. The defendant has not requested permission to do so by motion; however, as the defendant is pro se and has complied with the spirit of attempting to amend and conform with the rules of court, we will grant leave of court to grant the filing of the amended answer filed April 2, 2015. While defendant did delay in filing the amendment, we find that the amended answer does not cause undue prejudice to defendant. Therefore, this case will proceed with defendant’s amended answer and plaintiff’s preliminary objections to defendant’s answer are now deemed moot.

We also find that defendant’s amended answer has corrected the technical defects cited by plaintiff’s second, third, and fourth preliminary objections. Although an answer to paragraph 9 is contained within the answer to paragraph 8, and certain paragraphs thereafter are misnumbered, we find the defendant has substantially complied with the Rules of Civil Procedure. We agree the same can be said of an address, as set forth in paragraph 1 of the amended answer, and we waive a requirement for a telephone number in the pleading. However, pursuant to plaintiff’s first preliminary objection, defendant has still failed to include a verification as required by Pa.R.C.P. 1024. Thus, we find that defendant must attach a verification to her amended answer within twenty (20) days of this order, by filing a praecipe with the Prothonotary indicating the verification to the amended answer of April 2,2015 is being filed, and attaching a verification thereto. Said verification shall state the defendant made true and correct representations in the amended answer subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities.

ORDER

And now, this 17th day of April, 2015, upon consideration of the preliminary objections of plaintiff to defendant’s answer to plaintiff’s complaint, defendant’s preliminary objections are dismissed. Defendant is granted leave to file an amended answer which she did on April 2, 2015, and she shall file a verification to that amended answer within twenty (20) days of the date of this order, or the amended answer will be dismissed. The defendant shall also serve a copy of the amended answer on plaintiff’s counsel, and file a certificate of service thereon.


text:
    DeHoyos v. Geico General Insurance Co.

      C.P. of Monroe County,
    No. 10532 CIVIL 2012

      Kevin Foley, for plaintiff.

      Platte B. Moving, III, for defendant.

      April 20, 2015
   WILLIAMSON, J.,

This matter comes before us on a motion for partial judgment on the pleadings filed by GEICO General Insurance Company (hereafter “defendant”) on February 18, 2015. Carmen DeHoyos (hereafter “plaintiff’) filed a response to defendant’s motion for partial judgment on the pleadings on March 9, 2015. Plaintiff filed a brief in opposition to defendant’s motion for partial judgment on the pleadings on March 26, 2015.

Background

Plaintiff filed the underlying complaint against defendant on October 16, 2014. Plaintiff then filed an amended complaint on December 8, 2014. On August 28, 2009, plaintiff was a passenger in a car being operated by Jose Hernandez which struck a car being operated by Jaise James (hereafter “tortfeasor”). Plaintiff alleges that the collision was due to the negligence of both Mr. Hernandez and Mr. James, not due to any negligence on the part of Ms. DeHoyos. Plaintiff alleges that, as a result of the accident, she has suffered serious impairment of bodily function, along with wage losses and other incidental monetary losses.

At the time of the accident, plaintiff was covered by a policy of automobile insurance issued by defendant. Plaintiff alleges that defendant has only paid $24,665 in medical benefits when, pursuant to the policy, plaintiff is entitled to $100,000 in first party medical benefits. Plaintiff also accuses the doctor hired by defendant of being a hired gun for defendant insurance companies. Plaintiff has brought three claims against defendant: 1) breach of contract, 2) underinsured motorist benefits, and 3) bad faith liability.

In the claim against the tortfeasor, plaintiff obtained a verdict of $581,000, which the court molded to the high figure of the high-low agreement reached between plaintiff and the third party of $450,000. The available liability insurance policy limit of the third party is $500,000.

Argument

Defendant argues for partial judgment on the pleadings because the amount awarded to plaintiff after the settlement agreement is less than the available liability insurance policy limit of the third party, and thus there can be no claim for underinsured motorist benefits. Plaintiff argues that the actual award in determining whether there can be a claim for underinsured motorist benefits is the $581,000 awarded by the jury verdict.

After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. Pa.R.C.P. No. 1034. The court shall enter such judgment or order as shall be proper on the pleadings. Id.

Judgment on the pleadings may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law, and in determining if there is a dispute as to facts, court must confine its consideration to the pleadings and relevant documents. Kosor v. Harleysville Mut. Ins. Co., 407 Pa. Super. 68, 595 A.2d 128 (1991). Judgment on the pleadings will be granted only where moving party’s right to succeed is certain and so free from doubt trial would be fruitless exercise. In re Estate of Blom, 434 Pa. Super. 111, 642 A.2d 498 (1994).

When an insured settles their claim against the tortfeasor’s liability carrier for less than policy limits, the underinsured motorist carrier is entitled to compute its payment to its injured insured as though the tortfeasor’s policy limits have been paid. D Adamo v. Erie Ins. Exch., 4 A.3d 1090, 1095 (2010). Under this view, the insured will not be allowed underinsured motorist benefits unless their damages exceed the maximum liability coverage provided by the liability carriers of other drivers involved in the accident; and their underinsured motorist benefits insurer will, in any event, be allowed to credit the full amount of the tortfeasors’ liability coverage against the insured’s damages. Id. In this case, plaintiff’s insurance policy states that “the term ‘underinsured motor vehicle’ means a motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” Def s mot. for summ. j. ex. G. The policy goes on to state that defendant will only pay “damages for bodily injury caused by an accident which the insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle.” Id.

In Miller v. Ginsberg, the Superior Court of Pennsylvania held that a high/low agreement is considered a settlement contract and that “settlement agreements are regarded as contracts and must be considered pursuant to general rules of contract interpretation.” Miller v. Ginsberg, 874 A.2d 93, 99 (2005). In that case, the jury returned with a verdict in excess of the ceiling of the high-low agreement. Id. The court stated, “As we would not have overturned the clear terms of the agreement had a lower verdict been returned, we will not now upset the clear and unambiguous terms of the settlement agreement now that a higher verdict has been returned.” Id. The amount of damages awarded in the verdict being higher than the ceiling of the high/low agreement in that case did not change the fact that it was a settlement agreement.

In Thompson v. T.J. Whipple Const. Co., the Superior Court of Pennsylvania set forth that, if there is a damage verdict of the ceiling or more, plaintiff receives the amount of the ceiling. Thompson v. T.J. Whipple Const. Co., 985 A.2d 221, 227-28 (2009). The court stated, “We believe such a result is most consistent with our view of high/low agreements and contract principles in this Commonwealth.” Id. at 227. In that case, one of the issues was whether delay damages could be awarded which exceeded the ceiling of the high/low agreement. The court held that the agreement constituted a settlement any delay damages would be added and become part of the verdict. Id. The court stated that, “the addition of delay damages would exceed the agreed-upon ceiling, and the dignity of the high/low agreement would be compromised.” Id. at 228.

There is no factual dispute here regarding whether or not the settlement agreement was for $450,000. There is also no factual dispute that the available liability policy insurance limit of the third party with whom the settlement was reached is $500,000. Plaintiff admits that the high/low settlement agreement molds that jury verdict award to the ceiling of the agreement which was $450,000. Pi’s brief in opposition to def’s mot. for summ. j. at 4. Plaintiff only disputes that the actual award is the $581,000 awarded by the jury verdict, and not the figure molded by the settlement. Id.

Similar to Miller and Thompson, the jury awarded a verdict in this case which exceeded the ceiling of the high-low agreement. Plaintiff argues that the actual award is what the jury awarded plaintiff, and not what the settlement agreement molded the figure to. However, plaintiff cites no case law in any pleadings that supports this argument. High-low agreements are settlement agreements which place limits of a maximum and minimum when it comes to potential awards by the jury, and thus, their terms constitute valid and enforceable contracts. Thus, the $450,000 maximum in damages pursuant to the settlement agreement is the actual award and that fact has not been disputed by plaintiff in any pleadings. Since the $450,000 award in damages is less than the tortfeasor’s available liability coverage policy limit, there is no legal basis for a claim of underinsured motorist benefits.

Conclusion

Pennsylvania law and plaintiff’s insurance policy with defendant both state that there can be no claim for underinsured motorist benefits when the amount of damages plaintiff is legally entitled to recover does not exceed the available liability insurance limits. Here, plaintiff is entitled to recover $450,000 from the tortfeasor and the tortfeasor’s available liability insurance policy limit is $500,000. These facts have not been disputed by plaintiff in any of the pleadings. Therefore, there is no genuine issue of material fact and partial judgment on the pleadings will be granted for plaintiff’s claim of underinsured motorist benefits against defendant. Since we are granting partial judgment on the pleadings on defendant’s primary argument, it is not necessary to discuss defendant’s secondary arguments at this time.

ORDER

And now, this 20th day of April, 2015, upon consideration of defendant’s motion for partial judgment on the pleadings, defendant’s motion for partial judgment on the pleadings as to plaintiffs claim for underinsured motorist benefits is granted. Plaintiff’s claim for underinsured benefits is dismissed.


author: REICHLEY, J.,

text:
    Meckel v. Lehigh Valley Health Network

      C.P. of Lehigh County,
    No. 2014-C-0054

      Brandon A. Schwartz, for plaintiff.

      Laurie Shannon, for defendants.
    April 23, 2015
   REICHLEY, J.,

This is a premises liability action wherein plaintiff alleges she was injured when she struck a large trash container on wheels located in a hallway of defendants’ premises. Defendants filed a motion for summary judgment on the basis that plaintiff cannot recover for her injuries as a matter of law. For the reasons set forth herein, defendants’ motion is granted.

Factual and Procedural History

According to the complaint, plaintiff, a fifty-six-year-old woman, was participating in a “Life Sharing Program.” This program involved her sharing her home with two mentally challenged individuals. On November 12, 2012, plaintiff escorted two adult “life shares,” a male and a female, to the male’s appointment with defendant Lehigh Valley Urology Specialty Care. The male individual suffered from cerebral palsy, so plaintiff was pushing him in a wheelchair. Plaintiff testified during her deposition that the male was heavy, so she had to put effort into moving him. The female with them held open the door to defendant’s suite for the appointment so that plaintiff could push the male inside. Down the hallway from that area, some individuals were doing construction, which plaintiff observed as they entered the suite.

After the appointment, plaintiff opened the door and walked backward out of the office pulling the wheelchair. She turned to her right and backed into a large trash receptacle, which the parties refer to as a “dumpster.” The receptacle was “smack right at the edge of the hall door,” according to plaintiff’s deposition. (Deposition of Linda Meckel, December 12, 2014, at 65.) Photographs submitted to the court show that the receptacle was located just to the right of the door to the suite when looking at the suite from the outside. Plaintiff acknowledged in her deposition that the area was sufficiently lit and she did not look around behind or to her sides as she backed out. Plaintiff claims striking the dumpster caused a shock to her nervous system and she needed to have surgeries as a result of hitting it.

On January 9, 2014, plaintiff filed a complaint in the within action. Discovery proceeded and the instant motion for summary judgment was filed March 11, 2015.

The court heard argument on April 14, 2015, at which time all parties were represented by counsel. At the close of the argument, the court took the matter under advisement.

This opinion follows.

Standard of Review

Before the court is a motion for summary judgment. The standard for summary judgment is well-established.

A court may grant a motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bronson v. Horn, 830 A.2d 1092 (Pa. Cmwlth. 2003), affd, 577 Pa. 653, 848 A.2d 917 (2004), cert. denied, 543 U.S. 944, 125 S.Ct. 369, 160 L.Ed.2d 257 (2004). The right to judgment must be clear and free from doubt. Id. In reviewing the granting of a motion for summary judgment, this court must “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.” Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001).

Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwth. 2010).

Discussion

Defendants’ motion for summary judgment asserts plaintiff’s premises liability claim fails as a matter of law. It is uncontested that plaintiff’s legal status was that of an invitee for premises liability purposes. An invitee is someone who is “invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Restatement (Second) of Torts §332 (1965). As a general rule, possessors of land are not liable to invitees for physical harms caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts, § 343A.

A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Carrender v. Fitterer, 469 A.2d 120, 123-24 (Pa. 1983) (citation omitted). “For a danger to be ‘known,’ it must not only be known to exist, but...also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id. at 124.

The question of whether conditions on land were in fact open and obvious is generally a question of fact for a juiy to decide. Id. It may, however, be decided by a court where reasonable minds could not differ as to the conclusion. Id.; see also Long v. Manzo, 682 A.2d 370, 373 (Pa. Super. 1996) (citation omitted) (issues of plaintiff’s knowledge of condition creating unreasonable risk of harm usually for jury to decide, but may be decided by court where reasonable minds could not differ).

Aunique factor in this case is that plaintiff acknowledged that she was walking backward when she exited the office suite of Lehigh Valley Urology Specialty Care. As the Superior Court of Pennsylvania has long observed, “if there is anything settled in the law of negligence in Pennsylvania, it is the duty of a person to look where he is walking and see that which is obvious.” Villano v. Sec. Sav. Ass’n, 407 A.2d 440, 441 (Pa. Super. 1979) (quoting Lewis v. Duquesne Inclined Plane Co., 28 A.2d 925, 926 (Pa. 1942)). While there is a relative paucity of case law offering comparable factual circumstances, federal cases applying Pennsylvania law to premises liability actions consistently find that summary judgment is warranted and appropriate where a person fails to look behind him- or herself when walking backward. See, e.g., Graham v. Moran Foods, Inc., 2012 WL 1808952 (E.D. Pa. 2012) (as a matter of law, a pallet on the ground in a supermarket was an obvious condition that plaintiff did not see because she walked backward without looking where she was going).

For purposes of summary judgment, defendants concede that the trash receptacle was located outside the office suite and was placed there during the time plaintiff was inside. Defendants further do not contest for purposes of summary judgment that plaintiff exited the suite and injured herself when she encountered the trash receptacle. Despite this, the operative fact is that plaintiff admits she did not look behind her while backing out of the office into the hallway. In plaintiff’s deposition, the following exchange occurred:

Q. ...So now describe for me, after you checked out and you were preparing to leave, what happened?
A. Due to the fact that [the female life share who accompanied plaintiff and the male life share to the male’s appointment] was having some hard time opening up the door, I went and I opened up the door. And I was backing out of the office with the gentleman in the wheelchair, and my woman was in front — I guess you can say in front of him because it was me, him in the wheelchair, and then her. In other words, I came out first, and then the wheelchair, and then the woman.
Q. Okay. So because you were backwards, you and the woman were face to face?
A. Correct.
Q. And the patient in the wheelchair was obviously backwards?
A. Correct.
Q. So you were facing the same direction as him?
A. Correct.
Q. As she came up in front of the wheelchair, did she take the door from you?
A. No. The door was — I had the door the whole time.
Q. Okay.
A. Until I turned, and then I think — truthfully, I’m not exactly sure.
Q. Do you remember which way the door opened?
A. The door opened to the out.
Q. Okay. So just so this is clear on the record, if you’re walking backwards through the door —
A. Um-hum.
Q. — did the door open to your left or your right?
A. This would be my —
Q. So to your left?
A. That would be to my left. Right. Yeah. If I was walking backwards, yeah. I’m correct, it was to my left.
Q. Okay. So your recollection is the door opened to your left. Were you — as you initially opened the door, were you walking straight back out of the door or on an angle?
A. I was walking straight out of the door, and then I turned.
Q. Okay. Which direction did you turn? To your left or your right?
A. To my right.
Q. So your — when you turned to your right, did you continue walking backwards to your right, or did you turn and go forward to your right?
A. I continued walking backwards because, at the time, [the female “life share”] was coming out of the door. And then I backed up a little, and that’s when I hit the dumpster because she was coming out of the door. In other words — this is hard to explain.
The dumpster was smack right at the edge of the hall door — of the hall, and I didn’t — I didn’t see that it was there. And when I turned to let her out, I backed up just a little so she could get out, and the door was there, to make sure she got out the door okay, that it wouldn’t swing shut on her.

(Deposition of Linda Meckel, December 12, 2014, at 63-66.)

Shortly after that exchange, plaintiff testified as follows:

Q. And when you were backing out of the door, before you started backing up, did you look over your shoulder or look behind you?
A. No.
Q. When you came into contact with the dumpster, did you know what it was when you first hit it?
A. I — I looked.
Q. Okay, but before you hit it, you hadn’t seen it?
A. No.
Q. So you didn’t know what it was initially?
A. Correct.

(Id. at 75-76.)

Accordingly, plaintiff acknowledged at her deposition that she was walking backward out of the office suite and did not look where she was going. While the “dumpster” was not in the hallway just outside the suite when plaintiff originally arrived, that fact does not obviate plaintiff’s obligation to look where she was going. Because there is no genuine issue of material fact that plaintiff did not look behind her while walking backward out of defendants’ office suite, plaintiff cannot successfully pursue her claim against defendants and summary judgment is appropriate.

Conclusion

Because plaintiff admits she was not looking where she was going while walking backward, she is precluded from recovering in this case as a matter of law. Accordingly, summary judgment is granted in favor of defendants and against plaintiff and the case is dismissed.


author: GLAZER, J,

text:
    WFIC LLC v. LaBarre

      Benjamin A. Anderson, Michael G. Trachtman and David M. Burkholder, for plaintiff.

      Mark C. Cavanaugh, George Bochetto, Stephenie W Yeung, Ralph G. Wellington, Aaron E. Moore, Arthur W.

      Lefco, DavidP. Heim, John A. O ’Connell, Mitchell L. Paul, Rudolph Garcia, Lincoln Meyers, Andrew S. Gallino, John A. Guernsey, Frank R. Emmerich, Jr., Francis X Grimes and Paul Crowley, for defendants.
    May 11, 2015
   GLAZER, J,

ORDER

And now, this 11th day of May 2015, upon consideration of the supplemental motions for summary judgment and all responses in opposition, it hereby is ordered that the supplemental motions for summary judgment, Control Numbers 15030310, 150113320 and 15031930 are granted against moving defendants and defendant Bruce McKissock’s remaining cross claim is dismissed in its entirety against moving defendants.

It is further ORDERED that the supplemental motions for summary judgment, Control Numbers 15012307, 15030309, and 15030176, filed by defendants Fred Applegate Trust, Bruce Evans, Richard Hansen and Holly Zug Trust, defendant William A. Hitschler and William Fretz are dismissed as moot.

This matter has a long and circuitous history in which McKissock’s crossclaim for unjust enrichment remains the only claim left in this litigation. In resolving the remaining issue, the court adopts and incorporates its prior opinions issued on November 3, 2013, July 18, 2014 and January 12, 2015 in this action as well as the opinions dated August 14, 2014 and November 6, 2014 in a related action captioned Grimes v. Polymer Dynamics Inc. et.al., November Term 2011 No. 675. At issue now is whether crossclaim defendants, PAFCO Investment LLC, Peter Ferentinos (hereinafter “PAFCO”) and William Peoples, Debbie Kocher, Craig A. Peoples, Duane Peoples, Brad Jacoby, Dan Kacmar, Milthon Martinez, Jessica Moran, Joseph Rock, Peter Staffeld, Elizabeth Huggett, Arthur Peoples, Scott Peoples and Stanley Staffeld (hereinafter “Litigation Fund Investors”) were unjustly enriched by receiving distributions from the Bayer Litigation.

PAFCO was a creditor of PDI. Peter Ferentinos is majority shareholder, managing member and/or president of PAFCO. PAFCO made several loans to PDI over the course of several years to assist PDI in funding the prosecution in the PDI v. Bayer Corp. litigation. On August 14,2014, this court ruled that PAFCO was the senior secured creditor of PDI at the time the judgment was satisfied in PDI v. Bayer Corp. In addition to PAFCO, the Litigation Fund Investors also made loans to PDI for purposes of funding PDI v. Bayer Corp. in or about 2005 through 2007.

On or about August 28, 2008, McKissock entered into a fee agreement with PDI. The agreement provides in pertinent part as follows:

NOW THEREFORE, in consideration of McKissock’s agreement to continue prosecution of this litigation, it is hereby agreed and intended between the parties on the following fee arrangement:
1. Based on the current award of $12.5 Million, plus accrued interest, McKissock shall be entitled to a 1/3 gross legal fee;
2. From the 1/3 gross legal fee, for and in consideration of loan accommodations in an amount of up to Three Million Dollars ($3,000,000.00) to the Polymer Dynamics Litigation Fund, McKissock has agreed to pay principal, interest and incentive to the Polymer Dynamics litigation fund note holders, as indentified.
a. This payment has priority over any and all other payments and will be paid prior to any payment to McKissock under this fee arrangement with PDI or payment of obligations under the March 1, 2005 Revised Fee Agreement with M&H.
3. Should the Third Circuit grant a new trial and additional damages are recovered, or alternatively, if Bayer would agree to a resolution of this claim above the current award amount, that increased award and/ or settlement shall not be subject to the 1/3 agreement, but shall be subject to a sliding scale contingency fee to be mutually agreed upon between PDI and McKissock, which agreement shall recognize M&H’s right to recover expenses advanced and its contingency fee interest in the $12.5 Million Verdict under the terms of the March 1, 2005 Revised Fee Agreement.
4. The firm of M&H shall subordinate its right to repayment of their expenses and its right to receive its contingent fee interest in the $12.5 Million Verdict to the payout of the PDI Litigation Fund expense. Once the PDI litigation fund expenses are satisfied, any remaining portion of the 1/3 gross legal fee on the $12.5 Million verdict will be allocated to reimburse M&H for expenses advanced and to the payment of M & H’s contingency fee agreement (the March 1, 2005 Revised Fee Agreement) in that verdict.
5. In regards to any tax liens, the balance of the award recovery, net of the attorney fees/litigation fund payments, would exceed any pending tax lien.
6. If no further recovery is obtained, then McKissock will receive no further compensation for the legal services he has rendered in this matter. However, PDI shall be responsible for reimbursement of out-of-pocket costs advanced by McKissock.
7. Representatives of the firm of M&H shall continue to maintain client-attorney confidentiality requirements with respect to this agreement and all other information known about PDI during the time frame that the Bayer litigation remains open.
8. This agreement constitutes the entirety of the amended and restated fee agreement entered into between PDI, McKissock and M&H, and the terms and conditions of this agreement shall be controlled by applicable Pennsylvania law. Any dispute regarding payment of fees or reimbursement of costs on this matter shall be resolved by binding arbitration between the parties.

On June 24,2005, PDI obtained a verdict against Bayer for $12.5 million. Dissatisfied with the outcome, both parties appealed the award. In 2009, the Third Circuit Court of Appeals affirmed the jury verdict of $12.5 million. On September 30, 2010, Bayer paid $14,412,765.65 which constituted the verdict plus post judgment interest. The monies were deposited into the bank account of Gross McGinley, LLP, new counsel hired by PDI. PDI authorized Gross McGinley to pay: taxing authorities including the Internal Revenue Service and the City of Allentown, Gross McGinley, LLP and Bochetto & Lentz P.C. for legal fees and PAFCO, the secured creditor. PAFCO, upon receipt of the funds, paid the Litigation Fund Investors the principal amounts of their original notes. McKissock did not receive any payment for outstanding attorney fees incurred in the PDI v. Bayer litigation from the proceeds held by Gross McGinley, LLP.

Discussion

“Unjust enrichment” is essentially an equitable doctrine. Where unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred. The elements necessary to prove unjust enrichment are: (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. The application of the doctrine depends on the particular factual circumstances of the case at issue. In determining if the doctrine applies, the focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched. Notably, the doctrine of unjust enrichment does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff

McKissock alleges it provided PAFCO and the Litigation Fund Investors with a benefit in the form of legal services. The benefit allegedly conferred resulted in the verdict in the PDI v. Bayer litigation. McKissock contends that PAFCO and the Litigation Fund Investors were unjustly enriched by receiving distributions from the verdict proceeds in lieu of McKissock receiving his fee. Although, PAFCO and the Litigation Fund Investors did realize a benefit from McKissock’s legal services, the distribution of the proceeds by PDI to PAFCO and by PAFCO to the Litigation Fund Investors does not constitute unjust enrichment. PAFCO was a perfected secured creditor. Secured creditors with valid UCC-1 filings have priority over unsecured creditors. This court has already ruled that McKissock did not have a charging lien providing him with a security interest in the Bayer Proceeds. As such, McKissock was an unsecured creditor. Since PAFCO was a secured creditor and McKissock was an unsecured creditor, the distribution of the verdict funds to PAFCO before any payments to McKissock was proper based on the priority of perfected secured interests. Hence, the distribution and retention of the litigation funds by PAFCO is not unjust. Consequently, the cross claim for unjust enrichment fails against PAFCO.

Similarly, the distribution to the Litigation Fund Investors also fails to satisfy the unjust requirement for a claim of unjust enrichment to exist. PAFCO, the holder of a perfected secured interest, was properly in possession of the verdict proceeds once the tax obligations were satisfied. Once the funds were in PAFCO’s possession, PAFCO returned the principal loaned by the Litigation Fund Investors. PAFCO’s rights to the proceeds were superior to that of McKissock. Once in PAFCO’s possession, PAFCO was privileged to distribute the funds to the Litigation Fund Investors if it so chose. As such, McKissock’s claim for unjust enrichment fails against the Litigation Fund Investors as well.

Additionally, McKissock lacks standing to bring the claim for unjust enrichment against non clients PAFCO and the Litigation Fund Investors. The case law provides that a discharged attorney does not have a quantum meruit action against the attorney who ultimately settles the case, but may have a valid quantum meruit claim against the client. The same concept applies here. At no time were PAFCO and the Litigation Fund Investors McKissock’s clients nor did McKissock represent PAFCO or the Litigation Fund Investors in the underlying action. McKissock’s client was PDI. Hence, McKissock may only recover its attorney fees against PDI, its client and not third party creditors.

CONCLUSION

For the forgoing reasons, the supplemental motions for summary judgment are granted and defendant McKissock’s crossclaim for unjust enrichment is dismissed against moving defendants.

      . It is unclear as to the status of Polymer Dynamics, Inc. in this action as there has never been counsel of record.

      . Motions are moot due to an agreement to enter into mutual releases.

      . These defendants are pro se. The Litigation Fund Investors also included William Fretz, W. Anthony Hitschler, Fred Applegate Trust, Holly Zug Trust, Bruce Evans, and Richard Hansen. McKissock agreed to enter into mutual releases of all claims with these crossclaim defendants. There has also been proposed mutual releases to crossclaim defendants Arthur Peoples, Scott Peoples, Elizabeth Huggett and Stanley Staffeld. As of the filing of this opinion, the court has not been informed if the proposal was accepted.

      . Grimes v. PDI, 1111-675.

      . McKissock had prior fee agreements with PDI. M&H refers to the law firm of McKissock and Hoffinan.

      . Slyer v. Hugo, 422 Pa. Super. 262, 619 A.2d 347 (1993), aff’d, 535 Pa. 610, 637 A.2d 276 (1994).

      . Schenck v. K.E. David, Ltd., 446 Pa. Super. 94, 666 A.2d 327 (1995).

      . Mitchell v. Moore, 729 A.2d 1200, 1203-04 (1999)(quoting, Torchia v. Torchia, 346 Pa. Super. 229, 499 A.2d 581, 582 (1985).

      . Styer v. Hugo, 422 Pa. Super. 262 (1992)(citing Meehan v. Cheltenham Township, 410 Pa. 446, 189 A.2d 592 (1963)(where two parties enter into a contract which ultimately benefits third party and one contracting party fails to perform, in absence of misleading by third party there is no right to restitution against third party to remedy contracting party’s breach; although third party is enriched, enrichment not deemed unjust).

      . Grimes v. PDI, 1111-675 (August 14 ,2014, pg. 2, 3 and 5, 6).

      . Grimes v. PDI, 111 1-675 (August 14, 2014, pg. 5-6).

      . See, Meehan v. Cheltenham TP, 410 Pa. 446, 450-51, 189 A.2d. 593, 596. (1963)(“The restatement of restitution sets forth various rules for the determination of whether the retention of a particular enrichment is unjust. Section 110 deals with the situation where a third party benefits from a contract entered into between two other parties. It provides that, in the absence of some misleading by the third party, the mere failure of performance by one of the contracting parties does not give rise to a right of restitution against the third party. The restatement gives as an example of this principle the situation where A purchases a ring from C, a jeweler, for his fiancee B and then defaults in the payments. The restatement states that C cannot recover the ring or its value from B.”)

      . This court already ruled that the amended agreement was invalid and against public policy. As such McKissock did not have a charging lien.

      . See, Mager v. Bultena, 797 A.2d 948 (Pa. Super. 2002).

      . McKissock’s reliance upon Sittig, Cortese & Wratcher, LLC v. New York Life Inv. Mgrnt., LLC, 2012 Pa. D. & C. Dec. LEXIS 337 (Pa. Com. Pl. Sept. 12, 2012) is misplaced. In Sittig, the claim by the law firm was permitted to continue since the defendant was not only a shareholder of the law firm’s client, but also because the defendant had directly paid legal fees to the law firm prior occasions. Here, PAFCO and the Litigation Fund Investors were not McKissock’s clients and did not directly pay McKissock.


author: GRAY, J.,

text:
    Commonwealth v. Young

      C.P. of Lycoming County,
    No. 15-01,084

      Lisa Hughes Gabler, for plaintiffs.

      Nicole Spring, for defendant.
    May 12, 2015
   GRAY, J.,

OPINION and ORDER

And now, this 12th day of May, 2015, after a factual hearing on plaintiff’s motion for permanent injunction held May 5, 2015, for the following reasons, the court grants the injunction.

Findings of Fact

1. Kara Dara Young (hereinafter “Young”) is an inmate at SCI Muncy serving a life sentence.

2. Young suffers from end stage renal disease.

3. She currently receives kidney dialysis three times a week and death would occur in 30 days without dialysis.

4. In April 2015 prior to the order of this court dated April 24, 2015, Young began refusing dialysis.

5. Young’s refusal created labored breathing and liquid retention causing hospitalization at Geisinger Medical Center.

6. After dialysis was resumed, Young’s health improved although it is not clear that her health has returned to baseline.

7. Young objects to dialysis because she has no trust in the dialysis provider, Chardoney.

8. Chardoney’s previous nurse provided poor treatment in the Spring and Summer of 2014, however Young likes the current nurse.

9. Chardoney normally comes to the institution Monday, Wednesday and Friday, however, at times they will have to change the treatment cycle to Tuesday, Thursday Saturday.

10. Dr. Donald Stone, the prison medical director, opines that regular treatments are preferred but changes are acceptable provided that weekly norms are met.

11. Young is competent and has no objection to dialysis and does not want to die.

12. She wants a different provider for her dialysis than the other 3 inmates and she receive.

13. Chardoney is the company with which SCI system has contracted with for dialysis.

14. Allowing Young to refuse dialysis and die to force a change in prison medical care would violate the orderly operations of the prison and would not be in the best interest of the inmates of the institution.

15. The death of Young would damage the confidence and trust of the inmates in the institution.

16. Young does not object to treatment but to the details of the treatment and the provider.

Conclusions of Law

1. The Commonwealth has an overwhelming interest in maintaining prison order and security. Com. v. Kallinger, 580 A.2d 887, 890 (Pa. Cmwlth 1990).

2. The Commonwealth has a duty under the 8th Amendment to protect the health and welfare of persons in its custody. Id. at 891.

3. The Commonwealth’s interest in the orderly administration of its prison system outweighs the diminished right to privacy held by Young. Id. at 893.

4. The Commonwealth has established the six “essential prerequisites” required for injunctive relief. Warehime v. Warehime, 860 A.2d 41, 46 (Pa. 2004). See also Brayman Constr. Corp. v. Dep’t of Transp., 13 A.3d 925, 935 (Pa. 2011); Summit Towne Ctr., Inc. v. Shoe Snow of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). In particular, the Commonwealth established the following:

(1) the relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by money damages; (2) greáter injury will occur from refusing to grant the injunction than from granting it; (3) the injunction will restore the parties to their status quo as it existed before the alleged wrongful conduct; (4) the petitioner is likely to prevail in the merits; (5) the injunction is reasonably situated to abate the offending activity; and (6) the public interest will not be harmed if the injunction is granted. Brayman Constr. Corp., 13 A.3d at 935. See also Warehime, 860 A.2d at 46-47; Summit Towne Centre, Inc., 828 A.2d at 1002.

Discussion

This is not a right to die case. It is not a case where the inmate objects to dialysis. It is simply a case where a state prisoner wants to dictate the details of her medical care and choose the provider. The court is not aware of any cases endorsing that concept. There was a point in time when the provider’s services fell below the standard of care and Ms. Young was correct to report that situation to remedy it. However, there has been no evidence that Ms. Young’s current concerns about the schedule for dialysis falls below the standard of care. Furthermore, refusing treatment is not an acceptable method for seeking change where Ms. Young’s life is at stake as well as the Commonwealth’s interests in protecting the health and welfare of its citizens and maintaining order and safety in the prison.

Accordingly, the court enters the following order.

ORDER

And now, this 12th day of May, 2015, the Commonwealth’s request for a preliminary injunction is granted. The Commonwealth may involuntarily administer renal dialysis on Kara Dara Young and perform testing and acts related to the dialysis including necessary medication. The Commonwealth shall use its best efforts to maintain Young on a consistent schedule.

      . While a single judge of the Commonwealth Court refused an injunction ordering a transfusion, that prisoner had a sincere religious belief against such transfusion. Such is not the case here. Commonwealth v. Lindsey, 984 A.2d 573 (Pa. Cmwlth. 2009).


author: YATRON, PJ,

text:
    Commonwealth v. Ostrander

      C.P. of Berks County,
    No. CP-06-CR-0005785-2014

      Colleen Dugan, for Commonwealth.

      Douglas Wattman, for appellant.
    May 18, 2015
   YATRON, PJ,

Kurt Ostrander (“appellant”) was convicted of resisting arrest following a jury trial held February 18, 2015. Appellant was sentenced the same day to not less than one (1) nor more than two (2) years’ incarceration, with time served credit of eighty-five (85) days.

Appellant filed a pro se notice of appeal on March 18, 2015. We appointed Douglas Waltman, Esquire, to represent appellant on appeal in an order dated March 20, 2015. Attorney Waltman had previously served as standby counsel during appellant’s trial, during which he represented himself. We directed counsel to file a concise statement of errors pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. The concise statement was timely filed on April 8, 2015.

Appellant raises the following matters for appellate review:

1. The evidence was insufficient to support the conviction for the charge of resisting arrest where the Commonwealth’s evidence established that appellant could barely stand, couldn’t walk without assistance, and engaged in, at most, a “mere scuffle” with police who arrested him on suspicion of public drunkenness and disorderly conduct.

CONCISE STATEMENT, April 8, 2015.

Factual Summary

On November 25, 2014, Mira Martinez was living at 437 South 11th Street in the City of Reading. NOTES OF TESTIMONY (“N.T.”), Feb. 18, 2015 at 43. At approximately 5:46 a.m., she called the police to report a disturbance on the fire escape of her building. Id. Martinez heard appellant knocking on the window to another apartment and asking to be let in; she then heard glass shatter. Id. at 43-44.

Officers Mark Hackney and Brian Adler responded to the call. Id. at 51, 67. They were in full uniform and driving a marked patrol car. Id. They parked their vehicle next to the fire escape, and its lights were activated. Id. at 52,67,70. They heard appellant say, “Let me in, the police are coming.” Id. Both officers shined their flashlights at appellant, who was crouched next to a window. Id. They yelled several times for him to come down, but appellant would not comply. Id. at 53, 67.

The officers ascended the fire escape; appellant was on the third floor. Id. at 47, 54, 61, 67. The fire escape is very narrow, and only one person can pass at a time. Id. at 45, 53, 68. Officer Hackney described it as “not very secure.” Id. at 53. Officer Hackney reached appellant first. Id. at 54, 68. Because appellant had not yet complied with any instructions, and because broken glass was visible outside the window, Officer Hackney drew his weapon and demanded that appellant show his hands. Id. Appellant did not comply, so the officers rushed appellant and apprehended him by force. Id. at 55, 68. Appellant continued to resist by clenching his hands underneath himself and refusing to be handcuffed. Id. Officer Hackney applied pressure points so that appellant could be handcuffed. Id. at 55-56, 68.

Both officers observed that appellant was heavily intoxicated, which complicated the process of maneuvering him down the fire escape. Id. Though the officers contemplated calling the fire department to bring appellant down, they eventually led him down the steps. Id. at 56. Officer Hackney recalled that due to appellant’s intoxication, “we pretty much had to walk for him.” Id. Officer Adler waked backwards down the fire escape to prevent appellant from falling, while Officer Hackney secured appellant from behind. Id. at 69.

The officers’ flashlights lit up the room of the neighbor, Martinez. She heard the officers tell appellant to come down from the fire escape at least four times. Id. at 44. She also saw that the colored lights of the police vehicle were activated. Id. Martinez overheard the pertinent events, and she corroborated the officers’ accounts of what happened:

District Attorney: Now once you heard the police say — you said at least four times — to come down, what did you do, hear, and or see next?
Martinez: They went upstairs after him, and I could hear them tussling. They were trying to arrest him. He was resisting.
They were, like, don’t fight with us because we can fall off the fire escape. I could hear the cops tell him, don’t tussle; we will fall over the fire escape.
District Attorney: How many times did you hear that?
Martinez: Oh, it was a while because it was a tussle back and forth, like, don’t resist. I can’t really see. It’s up above me. I can hear it.
District Attorney: Did you hear them continuing to give commands as they went up the fire escape?
Martinez: Yes.
District Attorney: What were they saying when they went up?
Martinez: They were yelling don’t resist as they went up and bringing him down.

Id. at 45-46.

Discussion

Appellant argues that the evidence presented at trial was insufficient to support his conviction for resisting arrest. CONCISE STATEMENT at ¶1. Appellant specifically argues that he “could barely stand, couldn’t walk without assistance, and engaged in, at most, a ‘mere scuffle’ with police.” Id. We find this claim to be without merit.

The standard of review for a sufficiency of the evidence claim is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding an appellant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all the evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 806 A.2d 858 (Pa. 2002).

The crime of “resisting arrest or other law enforcement” is defined as follows:

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

18 Pa.C.S.A. § 5104. Bodily injury is the “impairment of physical condition or substantial pain.” Commonwealth v. Torres, 766 A.2d 342, 344 (Pa. 2001) (citing 18 Pa.C.S.A. §2301).

As appellant suggests, Section 5104 does not contemplate a “mere scuffle.” Appellant’s argument, however, ignores the pertinent inquiry — whether he created a substantial risk of bodily injury to the officers. In Commonwealth v. Lyons, the Superior Court held there was sufficient evidence to support a resisting arrest conviction where the appellant had struggled with two deputies in the middle of a “frigid stream with a rocky uneven bed.” 555 A.2d 920,925 (Pa. Super. 1989). The appellant in Lyons argued that he “committed no physical act which could have exposed the officers to a substantial risk of danger or bodily injury.” Id. at 924. The court rejected this argument via a straightforward reading of Section 5104: “The statute does not require serious bodily injuiy. Nor does it require actual injury to the arresting officer. Rather, sufficient resistance is established if the arrestee’s actions created a substantial risk of bodily injury to the arresting officer.” Id. at 925.

The instant case can be analyzed similarly. Appellant’s actions necessitated the officers’ ascension of a narrow fire escape several stories above the ground. Even a “mere scuffle” at such heights put the officers in substantial risk of bodily injury. Additionally, there was broken glass strewn on the ground throughout the ensuing struggle. Once appellant was finally handcuffed, the officers then had to maneuver him down the fire escape. This scenario is at least as dangerous — if not more so — than a struggle in a cold and slippery waterway, which was the situation in Lyons. We therefore conclude that appellant created a substantial risk of bodily injury to the officers by leading them into an inherently dangerous situation.

We also conclude that appellant’s actions were intended to prevent the officers from effecting a lawful arrest or discharging another duty. Appellant was clearly aware of the officers’ presence, notwithstanding his high level of intoxication. The patrol car’s lights were activated, they yelled commands at appellant multiple times, and they shined flashlights in his direction. When they ascended the fire escape, appellant still did not comply by refusing to show his hands. Most decisively, the officers heard appellant say, “Let me in, the police are coming.”

Conclusion

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we find that there was sufficient evidence for the jury to conclude beyond a reasonable doubt that appellant committed the crime of resisting arrest. This court respectfully requests that the instant appeal be denied and the judgment of sentence affirmed.

      . 18Pa.C.S.A. §5104.


author: BELTRAMI, J.,

text:
    Timpa v. Hunter

      C.P. of Northampton County,
    No. 0048-CV-2014-3285

      Michael J. Vargo, for plaintiff.

      Samuel P. Murray, for defendant.
    May 26, 2015
   BELTRAMI, J.,

This matter is before the court on the preliminary objections of defendant Willard J. Hunter, Jr. (“defendant”) to plaintiff’s second amended complaint. Briefs have been filed, oral argument was heard on February 24, 2015, and the matter is ready for disposition.

On April 14, 2014, plaintiff commenced this action by filing a complaint alleging breach of contract and unjust enrichment against defendants. On May 30, 2014, defendants filed preliminary objections to plaintiff’s complaint.

In response to defendants’ preliminary objections, plaintiff filed an amended complaint on August 28, 2014, once again alleging causes of actions for breach of contract and unjust enrichment against defendants. On October 24, 2014, defendant filed preliminary objections to plaintiff’s amended complaint.

On December 4,2014, plaintiff filed a second amended complaint, which only names defendant as a defendant. Once again, the second amended complaint alleges breach of contract and unjust enrichment. On the same date, plaintiff filed a praecipe to amend caption, asking the prothonotary to amend the caption by removing Cynthia R. Hunter as a defendant.

On December 30, 2014, defendant filed the instant preliminary objections, which raise four issues. First, defendant argues, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2), that the second amended complaint fails to conform to law or rule of court. More specifically, defendant argues that the second amended complaint and praecipe to amend caption had the purported effect of voluntary discontinuing the action against defendant Cynthia R. Hunter in violation of Pennsylvania Rule of Civil Procedure 229, which is as follows:

(a) A discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.
(b)(1) Except as otherwise provided in subdivision (b) (2), a discontinuance may not be entered as to less than all defendants except upon the written consent of all parties or leave of court after notice to all parties.

Pa.R.C.P. No. 229(a)-(b). It is clear that plaintiffhas violated Rule 229, as she has attempted to voluntarily terminate the action against her sister, defendant Cynthia R. Hunter, by amending her complaint but has not obtained either the consent of defendant or leave of court. See Ammlung v. Chester, 302 A.2d 491, 493 (Pa. Super. 1973) (amendment of complaint is improper means for discontinuing action against less than all defendants, which should be effected under Rule 229 with notice to all parties). Thus, plaintiff’s second amended complaint will be stricken as failing to conform to law or rule of court.

Ordinarily, the remedy for violating Rule 229 is the striking of a discontinuance filed without consent or leave of court. See Pa.R.C.P. No. 229(c). As noted above, no such discontinuance was filed in this case. However, plaintiff did file a praecipe to amend caption, which, like the second amended complaint, sought to improperly discontinue the action against defendant Cynthia R. Hunter. Accordingly, that praecipe will be stricken, as well, in order to correct the docket.

In light of the court’s disposition of defendant’s first objection, the court need not reach defendant’s remaining objections, which are demurrers.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 26th day of May, 2015, the “preliminary objections to plaintiff’s second amended complaint,” filed on December 30, 2014, are hereby sustained. Plaintiff’s second amended complaint, filed on December 4,2014, is hereby stricken. The praecipe to amend caption, filed on December 4, 2014, is hereby stricken.

Plaintiff is hereby granted leave to file an amended complaint or a petition, pursuant to Pa.R.C.P. No. 229, within twenty (20) days. If plaintiff files a petition, pursuant to Rule 229, plaintiff is granted twenty (20) days from the date of disposition of the petition to file an amended complaint.

      . Plaintiff concedes that Rule 229 was violated but argues that the court should not strike the complaint, as Rule 126 allows the court to disregard errors of procedure that do not “affect the substantial rights of the parties.” Pa.R.C.P. No. 126. In this case, plaintiff suggests that defendant can file a joinder complaint against defendant Cynthia R. Hunter. However, plaintiff ignores the fact that defendant argues that the statute of limitations has expired with regard to any claim against defendant Cynthia R. Hunter. Thus, disregarding the rule violation would substantially affect defendant’s rights because he would lose the right to argue, in a joinder complaint, that defendant Cynthia R. Hunter is solely liable on plaintiff’s cause of action, an argument that defendant currently has the right to make pursuant to Pa.R.C.P. No. 1031.1(1).